Exhibit 10.39
ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD
AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN
RSU AWARD AGREEMENT
This RSU Award Agreement (this "RSU Agreement") sets forth the terms
and conditions of an award (this "Award") of restricted stock units ("RSUs")
granted to you under the Allied World Assurance Company Holdings, Ltd Amended
and Restated 2004 Stock Incentive Plan (the "Plan").
1. The Plan. This Award is made pursuant to the Plan, the terms of which
are incorporated in this RSU Agreement. Capitalized terms used in this RSU
Agreement that are not defined in this RSU Agreement, or in the attached
Glossary of Terms, have the meanings as used or defined in the Plan.
2. Award. The number of RSUs subject to this Award is set forth at the end
of this RSU Agreement. Each RSU constitutes an unfunded and unsecured promise of
Allied World to deliver (or cause to be delivered) to you, subject to the terms
of this RSU Agreement, one Common Share (the "Share" or the "Shares" as the
context requires) (or cash equal to the Fair Market Value thereof) on the
applicable Delivery Date as provided herein. Until such delivery, you have only
the rights of a general unsecured creditor, and no rights as a shareholder of
Allied World. THIS AWARD IS SUBJECT TO ALL TERMS, CONDITIONS AND PROVISIONS OF
THE PLAN AND THIS AWARD AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE CHOICE OF
FORUM PROVISIONS SET FORTH IN PARAGRAPH 15.
3. Vesting and Delivery.
(a) Vesting. Except as provided in this Paragraph 3 and in
Paragraphs 4 and 6, twenty five percent (25%) of the RSUs shall vest and become
exercisable on each of the first, second, third and fourth anniversaries of the
Date of Grant specified at the end of this RSU Agreement (each, a "Vesting
Date"). Unless the Committee determines otherwise, and except as provided in
Paragraph 6, if your Employment terminates for any reason prior to a Vesting
Date, your rights in respect of all of your then unvested RSUs shall terminate,
and no Shares (and/or cash) shall be delivered in respect of such RSUs.
(b) Delivery. Except as provide in this Paragraph 3 and in
Paragraphs 4, 6, 8 and 9, the Shares underlying the RSUs shall be delivered on
the Delivery Dates. The Company may, at its option, deliver cash in lieu of all
or any portion of the Shares otherwise deliverable on a Delivery Date specified
at the end of this RSU Agreement. Such cash payment shall equal the product of
the number of Shares to be delivered on a Delivery Date and the Fair Market
Value of one Share on such Delivery Date. You shall be deemed the beneficial
owner of the Shares at the close of business on a Delivery Date and shall be
entitled to any dividend or distribution that has not already been made with
respect to such Shares if the record date for such dividend or distribution is
after the close of business on such Delivery Date.
(c) Death. Notwithstanding any other provision of this RSU
Agreement, if you die prior to a Delivery Date, and provided your rights in
respect of your RSUs have not previously terminated, the Shares (and/or cash)
corresponding to your outstanding RSUs shall be delivered to the representative
of your estate as soon as practicable after the date of death and after such
documentation, as may be requested by the Company, is provided to the Company.
(d) Delay in Delivery. Notwithstanding anything contained herein to
the contrary, any delivery of Common Shares or cash otherwise required to be
made hereunder to you at any date as a result of the termination of your
Employment for any reason shall be delayed for such period of time as may be
necessary to meet the requirements of section 409A(a)(2)(B)(i) of the U.S.
Internal Revenue Code of 1986, as amended (the "Code"), and shall be delivered
and/or paid on the earliest date on which such delivery or payments can be made
without violating the requirements of section 409A(a)(2)(B)(i) of the Code.
4. Termination of RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as
provided in Paragraphs 3(c) and 6, your rights in respect of your outstanding
RSUs shall immediately terminate, and no Shares (and/or cash) shall be delivered
in respect of such unvested RSUs, if at any time prior to a Vesting Date your
Employment with the Company terminates for any reason, or you are otherwise no
longer actively Employed by the Company.
(b) Unless the Committee determines otherwise, and except as
provided in Paragraph 6, your rights in respect of all of your RSUs (whether or
not vested) shall immediately terminate, and no Shares (and/or cash) shall be
delivered in respect of such RSUs, if at any time prior to a Delivery Date:
(i) you attempt to have any dispute under this RSU Agreement or the
Plan resolved in any manner that is not provided for by Paragraph 15;
(ii) any event that constitutes Cause has occurred;
(iii) you in any manner, directly or indirectly, (A) Solicit any
Client to transact business with a Competitive Enterprise or to reduce or
refrain from doing any business with the Company, (B) interfere with or
damage (or attempt to interfere with or damage) any relationship between
the Company and any such Client or (C) Solicit any person who is an
employee of the Company to resign from the Company or to apply for or
accept employment with any Competitive Enterprise; or
(iv) you fail to certify to Allied World, in accordance with
procedures established by the Committee with respect to a Delivery Date
that you have complied, or the Committee determines that you have failed
as of a Delivery Date to comply, with all of the terms and conditions of
this RSU Agreement. By accepting the delivery of Shares (and/or cash)
under this RSU Agreement, you shall be deemed to have represented and
certified at such time that you have complied with all the terms and
conditions of this RSU Agreement.
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(c) Unless the Committee determines otherwise, if a Delivery Date in
respect of any of your outstanding RSUs occurs, and Shares (and/or cash) with
respect to such outstanding RSUs would be deliverable under the terms and
conditions of this RSU Agreement, except that you have not complied with the
conditions or your obligations under Paragraph 4(b)(iv), all of your rights with
respect to your outstanding RSUs shall terminate no later than the Delivery Date
for such Shares.
5. Repayment. If following the delivery of Shares (and/or cash), the
Committee determines that all terms and conditions of this RSU Agreement
in respect of such delivery were not satisfied, the Company shall be
entitled to receive, and you shall be obligated to pay the Company
immediately upon demand therefor, the Fair Market Value of the Shares
(determined as of the Delivery Date) and the amount of cash (to the extent
that cash was delivered to you) delivered with respect to the Delivery
Date, without reduction for any Shares (and/or cash) applied to satisfy
withholding tax or other obligations in respect of such Shares (and/or
cash).
6. Disability and Retirement
(a) Notwithstanding any other provision of this RSU Agreement, but
subject to Paragraph 6(b), if your Employment with the Company is terminated by
reason of Disability or Retirement, the condition set forth in Paragraph 4(a)
shall be waived with respect to your then outstanding unvested RSUs (as a result
of which any such then unvested outstanding RSUs shall vest on the Vesting
Dates), but all other conditions of this RSU Agreement shall continue to apply.
(b) Without limiting the application of Paragraph 4(b) or Paragraph
4(c), your rights in respect of any outstanding RSUs that become vested solely
by reason of Paragraph 6(a) shall terminate immediately, and no Shares (and/or
cash) shall be delivered in respect of such outstanding RSUs if, following the
termination of your Employment with the Company by reason of Disability or
Retirement and prior to a Delivery Date you (i) form, or acquire a 5% or greater
equity ownership, voting or profit participation interest in, any Competitive
Enterprise or (ii) associate in any capacity (including, but not limited to,
association as an officer, employee, partner, director, consultant, agent or
advisor) with any Competitive Enterprise.
7. Non-transferability. Except as otherwise may be provided by the
Committee, the limitations set forth in Section 3.5 of the Plan shall apply. Any
assignment in violation of the provisions of this Paragraph 7 shall be null and
void.
8. Withholding, Consent and Legends.
(a) The delivery of Shares is conditioned on your satisfaction of
any applicable withholding taxes (in accordance with Section 3.3 of the Plan).
(b) Your rights in respect of your RSUs are conditioned on the
receipt to the full satisfaction of the Committee of any required consents (as
defined in Section 3.4 of the Plan) that the Committee may determine to be
necessary or advisable (including, without limitation, your consenting to
deductions from your wages, or another arrangement satisfactory to the
Committee, to reimburse the Company for advances made on your behalf to satisfy
withholding and other tax obligations in connection with this Award).
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(c) Allied World may affix to Certificates representing Shares
issued pursuant to this RSU Agreement any legend that the Committee determines
to be necessary or advisable (including to reflect any restrictions to which you
may be subject under a separate agreement with Allied World). Allied World may
advise the transfer agent to place a stop transfer order against any legended
Shares.
9. Rights of Offset. The Company shall have the right to offset against
the obligation to deliver Shares (and/or cash) under this RSU Agreement any
outstanding amounts (including, without limitation, travel and entertainment or
advance account balances, loans or amounts repayable to the Company pursuant to
tax equalization, housing, automobile or other employee programs) you then owe
to the Company and any amounts the Committee otherwise deems appropriate.
10. No Rights to Continued Employment. Nothing in this RSU Agreement or
the Plan shall be construed as giving you any right to continued Employment by
the Company or affect any right that the Company may have to terminate or alter
the terms and conditions of your Employment.
11. Successors and Assigns of Allied World. The terms and conditions of
this RSU Agreement shall be binding upon, and shall inure to the benefit of,
Allied World and its successor entities.
12. Committee Discretion. The Committee shall have full discretion with
respect to any actions to be taken or determinations to be made in connection
with this RSU Agreement, and its determinations shall be final, binding and
conclusive.
13. Amendment. The Committee reserves the right at any time to amend the
terms and conditions set forth in this RSU Agreement, and the Board may amend
the Plan in any respect; provided, that, notwithstanding the foregoing and
Sections 1.3.1(i), 1.3.1(ii) and 3.1 of the Plan, no such amendment shall
materially adversely affect your rights and obligations under this RSU Agreement
without your consent, except that the Committee reserves the right to accelerate
the delivery of the Shares and in its discretion provide that such Shares may
not be transferable until the Delivery Date on which such Shares otherwise would
have been delivered (and that in respect of such Shares you may remain subject
to the repayment obligations of Paragraph 5 in the circumstances under which the
Shares would not have been delivered pursuant to Paragraph 4 or Paragraph 6).
Any amendment of this RSU Agreement shall be in writing signed by an authorized
member of the Committee or a person or persons designated by the Committee.
14. Adjustment. In the event of a recapitalization, stock split, stock
dividend, combination or exchange of shares, merger, amalgamation,
consolidation, rights offering, separation, reorganization or liquidation, or
any other change in the corporate structure or the Shares, subsequent to the
date of the Date of Grant, the Committee or the Board shall make such equitable
adjustments, designed to protect dilution or enlargement of rights, as it may
deem appropriate, in the number and kind of Shares covered by the RSUs subject
to this RSU Agreement.
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15. Governing Law; Venue. THIS AWARD SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. IN CONSIDERATION OF YOUR
ACCEPTANCE OF THIS AWARD, YOU HEREBY EXPRESSLY SUBMIT TO THE EXCLUSIVE
JURISDITION OF AND VENUE IN THE COURTS OF BERMUDA WITH RESPECT TO ANY SUIT OR
CLAIM INSTITUTED BY THE COMPANY OR YOU RELATING TO THIS AWARD.
16. Headings. The headings in this RSU Agreement are for the purpose of
convenience only and are not intended to define or limit the construction of the
provisions hereof.
IN WITNESS WHEREOF, Allied World has caused this RSU Agreement to be duly
executed and delivered as of the Date of Grant.
ALLIED WORLD ASSURANCE COMPANY
HOLDINGS, LTD
By:
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Name:
Title:
Recipient:
Number of RSUs:
Date of Grant:
Delivery Dates:
Receipt
Acknowledge:
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Address:
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Xxxxxx
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Xxxx, Xxxxx Zip Code
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Social Security No./Local I.D. No.
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GLOSSARY OF TERMS
Solely for purposes of this Award of RSUs, the following terms shall have the
meanings set forth below. Capitalized terms not defined in this Glossary of
Terms shall have the meanings as used or defined in the applicable RSU Agreement
or the Plan.
"CAUSE" means, in the absence of any employment agreement between
you and the Company otherwise defining Cause, (i) your conviction, whether
following trial or by plea of guilty or nolo contendere (or similar plea), in a
criminal proceeding (A) on a misdemeanor charge involving fraud, false
statements or misleading omissions, wrongful taking, embezzlement, bribery,
forgery, counterfeiting or extortion; (B) on a felony charge; or (C) on an
equivalent charge to those in clauses (A) and (B) in jurisdictions which do not
use those designations; (ii) your engaging in any conduct which constitutes an
employment disqualification under applicable law (including statutory
disqualification as defined under the Exchange Act); (iii) your failure to
perform your duties to the Company; (iv) your violation of any securities or
commodities laws, any rules or regulations issued pursuant to such laws, or the
rules and regulations of any securities or commodities exchange or association
of which Allied World or any of its subsidiaries or affiliates is a member; (v)
your violation of any Company policy concerning hedging or confidential or
proprietary information, or your material violation of any other Company policy
as in effect from time to time; (vi) your engaging in any act or making any
statement which impairs, impugns, denigrates, disparages or negatively reflects
upon the name, reputation or business interests of the Company; or (vii) your
engaging in any conduct detrimental to the Company. In the event there is an
employment agreement between you and the Company defining Cause, "Cause" shall
have the meaning provided in such agreement. The determination as to whether
"Cause" has occurred shall be made by the Committee in its sole discretion,
unless otherwise provided in an employment agreement between you and the
Company. The Committee shall also have the authority in its sole discretion to
waive the consequences under the Plan or any RSU Agreement of the existence or
occurrence of any of the events, acts or omissions constituting "Cause."
"CLIENT" means any client or prospective client of the Company to
whom you provided services, or for whom you transacted business, or whose
identity became known to you in connection with your relationship with or
Employment by the Company.
"COMPETITIVE ENTERPRISE" means a business enterprise that (i)
engages in any activity, or (ii) owns or controls a significant interest in any
entity that engages in any activity, that, in either case, competes anywhere
with any activity in which the Company is engaged. The activities covered by the
previous sentence include, without limitation, all insurance and re-insurance,
and insurance and reinsurance related activities, and asset management located
in Bermuda and abroad.
"DELIVERY DATE" means each date specified as the Delivery Date in
the Award (or as soon as practicable, but in no case more that 10 days,
thereafter).
"DISABILITY" means, in the absence of any employment agreement
between you and the Company otherwise defining Disability, (i) total disability
as defined in the long-term disability plan of the Company, as in effect from
time to time, or (ii) if there is no such plan at
the applicable time, physical or mental incapacity as determined solely by the
Committee. In the event there is an employment agreement between you and the
Company defining Disability, "Disability" shall have the meaning provided in
such agreement.
"FAIR MARKET VALUE" means, with respect to a Common Share on any
day, the fair market value as determined in accordance with a valuation
methodology approved by the Committee, or if there is a public market for the
shares on such date, the average of the high and low closing bid prices of the
Common Shares on such stock exchange on which the shares are principally trading
on the date in question, or, if there were no sales on such date, on the closest
preceding date on which there were sales of shares.
"RETIREMENT" means any termination of your Employment other than for
Cause following the date you attain age 65.
"SOLICIT" means any direct or indirect communication of any kind
whatsoever, regardless of by whom initiated, inviting, advising, encouraging or
requesting any person or entity, in any manner, to take or refrain from taking
any action.
