Consulting Agreement - ACE Ltd. and Kramer Capital Corp.
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of 1/st/ January 2000 (the "Agreement) by and
among ACE Limited, a Cayman company limited by shares ("ACE"), and Kramer
Capital Corp., a Delaware corporation with its principal place of business in
Connecticut ("Kramer Capital").
WHEREAS ACE desires to retain Kramer Capital and its employees for
technical support, advice and consulting services;
WHEREAS Kramer Capital is willing to provide such support and consulting
services on the terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term. Kramer Capital shall be retained to provide services to ACE for
a term commencing on the date hereof and ending on the fifth anniversary of the
date hereof unless earlier terminated pursuant to Section 5 (the"Term").
2. Position and Responsibility. During the Term, Kramer Capital agrees to
act as a non-exclusive insurance and financial advisor to ACE. In particular,
Kramer Capital will undertake on behalf of ACE some or all of the following
services as agreed from time to time with ACE:
(a) Search for strategic opportunities in the insurance and financial
services industry.
(b) Engage in research on publicly held and privately owned companies in
both the insurance and financial services sector.
(c) Analyze trends in the insurance industry, monitor competition and
evaluate new products, to advise ACE of any new developments that may
affect the industry or ACE or its affiliates specifically.
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(d) Maintain contact with investment bankers, business brokers and any
other sources of new business opportunities.
(e) Coordinate merger and acquisition activity between ACE, investment
bankers, lawyers, accountants, actuaries and other due diligence
specialists and with target companies.
(f) Provide analysis of prospective transactions.
(g) Find, develop, implement and monitor strategic investments and joint
ventures in markets throughout the world.
(h) Keep ACE's executive staff continually informed of late breaking and
relevant events in the insurance and financial services industry.
(i) Such other special projects as shall be mutually agreed upon by Kramer
Capital and the Chairman of ACE.
Kramer Capital will be expected to make available the services of Don Kramer and
others, as may be agreed in performing its obligations hereunder.
3. Retainer. Upon signing this Agreement ACE agrees to pay Kramer Capital
an up front retainer fee of $100,000. Additional fees for Kramer Capital's
services shall be agreed in writing between the parties from time to time.
4. Reimbursement of Out-of-Pocket Expenses. Reasonable Out-of-pocket
expenses incurred by Kramer Capital and its employees during the Term in the
provision of its services hereunder shall be reimbursed by ACE, upon
presentation of an itemized billing statement.
5. Termination. This Agreement and Kramer Capital's retention hereunder
may be terminated at any time by either ACE or Kramer Capital upon 30 days'
prior written notice to the other.
6. Status as Consultant. Neither Kramer Capital nor any of its
shareholders, directors, officers, employees, agents or representatives shall
have the authority to act as an agent of ACE, except an authority specifically
delegated in writing by ACE, and shall not represent to
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the contrary to any person. Kramer Capital and its employees shall only consult,
render advice and perform such tasks as Kramer Capital determines are necessary
to achieve the results specified by ACE and shall not direct the work of any
employee of ACE, or make any management decisions, or undertake to commit ACE to
any course of action in relation to third persons. Although ACE may specify the
results to be achieved by Kramer Capital and may control Kramer Capital in that
regard, ACE shall not control or direct Kramer Capital as to the details or
means by which such results are accomplished. It is intended that the amounts
payable hereunder during or after the Term shall constitute revenues to Kramer
Capital. To the extent consistent with applicable law, ACE will not withhold
any amounts therefrom as federal income tax withholding from wages or as
employee contributions under the Federal Insurance Contributions Ace or any
other state or federal laws. Kramer Capital shall be solely responsible for the
withholding and/or payment of any federal, state or local income or payroll
taxes.
7. Restrictive Covenants
(a) Confidentiality. Kramer Capital shall not, and shall not permit its
shareholders, directors, officers, employees, agents and representatives to,
during the Term and thereafter, except in the performance of its obligations to
ACE hereunder or as may otherwise be approved in advance by the Chairman of ACE,
directly or indirectly, disclose or use (except for the direct benefit of ACE)
any confidential information that it or they may learn or has learned by reason
of its or their association with ACE, any client or any of their respective
affiliate
(b) Exclusive Property. Kramer Capital confirms that all confidential
information with respect to ACE (or any of its affiliates) or any client, as the
case may be, is and shall remain the exclusive property of ACE (or any such
affiliate) or such client, as appropriate. All business records, papers and
documents kept or made by Kramer Capital or any of its shareholders, directions,
officers, employees, agents or representatives relating to the business of ACE
(or any of its affiliates) or any client shall be and remain the property of ACE
(or any such affiliate) or such client, as appropriate, except for such papers
customarily deemed to be the personal copies of Kramer Capital.
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(c) Intellectual Property. Kramer Capital confirms that all software and
other intellectual property developed on behalf of ACE (or any of its
affiliates) or any client, as the case may be, is and shall remain the exclusive
property of ACE (or any such affiliate) or such client, as appropriate, and the
copyright and/or patent shall belong to ACE (or any such affiliate) or such
client, as appropriate, unless the ownership is transferred in writing by ACE.
Any commercially licensed software used by Kramer Capital shall be identified as
such and ACE shall assume all liability for copyright or patent infringement.
8. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement that cannot be mutually resolved by the parties hereto shall
be settled exclusively by arbitration in New York, New York, United States of
America, before one arbitrator of exemplary qualifications and stature, who
shall be selected jointly by ACE and Kramer Capital, or, if ACE and Kramer
Capital cannot agree on the selection of the arbitrator, shall be selected by
the American Arbitration Association; provided that any arbitrator selected by
the American Arbitration Association shall not, without the consent of the
parties hereto, be affiliated with Kramer Capital or ACE or any of ACE's
affiliates. Judgement may be entered on the arbitrator's award in any court
having jurisdiction. The parties hereby agree that the arbitrator shall be
empowered to enter an equitable decree mandating specific enforcement of the
terms of this Agreement. ACE shall bear all expenses of the arbitrator incurred
in any arbitration hereunder and shall reimburse Kramer Capital for any related
reasonable legal fees and out-of-pocket expenses directly attributable to such
arbitration; provided that such legal fees are calculated on an hourly, and not
on a contingency fee, basis; and provided further that Kramer Capital shall bear
all expenses of the arbitration and all his legal fees and out-of-pocket
expenses (and reimburse ACE for its legal fees, out-of-pocket expenses and its
portion of the expenses of the arbitrator) if the arbitrator or relevant trier-
of-fact determines that Kramer Capital's claim or position was without
reasonable foundation.
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9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(b) Entire Agreement: Amendments. This Agreement contains the entire
understanding of the parties with respect to the retention of Kramer Capital by
ACE. There are no restrictions, agreement, promises, warranties, covenants or
undertakings between the parties with respect to the subject matter herein other
than those expressly set forth herein. This Agreement may not be altered,
modified or amended except by written instrument signed by each of the parties
hereto.
(c) No Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(d) Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provision of
this Agreement shall not be affected thereby.
(e) Assignment: Successors: Binding Agreement. This Agreement shall not be
assignable by any of the parties. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
representatives, successors and permitted assigns.
(f) Headings. The headings used in this Agreement are for convenience only
and shall not affect the meaning of or be used to interpret any provisions
herein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
ACE LIMITED
______________________________
Name:
Title:
KRAMER CAPITAL
______________________________
Name:
Title:
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