Exhibit
10.24
ASPEN INSURANCE HOLDINGS LIMITED
NONQUALIFIED
SHARE OPTION AGREEMENT
THIS AGREEMENT (the
"Agreement"), is made effective as of the
day of , 2006
(hereinafter called the "Date of Grant"),
between Aspen Insurance Holdings Limited, a Bermuda corporation
(hereinafter called the "Company"), and
(hereinafter called the
"Participant"):
RECITALS:
WHEREAS, the Company has adopted the
Aspen Insurance Holdings 2003 Share Incentive Plan, as amended from
time to time (the "Plan"), which Plan is
incorporated herein by reference and made a part of this Agreement.
Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan; and
WHEREAS, the Committee has
determined that it would be in the best interests of the Company and
its shareholders to grant the performance-based option provided for
herein to the Participant pursuant to the Plan and the terms set forth
herein.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties agree as
follows:
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| 1. |
Grant of the
Option. The Company hereby grants to the Participant the
right and option to purchase, on the terms and conditions hereinafter
set forth, all or any part of an aggregate of
Shares (the "Option"), subject to adjustment
as set forth in the Plan. The purchase price of the Shares subject to
the Option shall be $[ ] per Share (the
"Option Price"). The Option is intended to be
a non-qualified share option, and is not intended to be treated as an
option that complies with Section 422 of the
Code. |
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| 2. |
Vesting. The
Option shall become vested only to the extent that the Return on Equity
(calculated as described in Section 2(a) below, the
"XXX") targets and the service requirements
described below are achieved. |
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(a) |
For purposes of this Agreement,
"XXX" shall be equal to net income determined
under United States Generally Accepted Accounting Principles
("US GAAP") after deduction of the cost of
all Awards granted under the Plan as a percentage of weighted average
shareholders' equity, which shall be determined by the Board
based on the Company's audited financials under US GAAP. |
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(b) |
For purposes of this Agreement,
"2006 XXX Percentage" shall be equal to the
Company's actual XXX for the fiscal year ended December 31, 2006
(the "2006 Fiscal Year"), expressed as a
percentage of the XXX target for the 2006 Fiscal Year. The XXX target
with respect to the 2006 Fiscal Year is set forth on Exhibit
A, a copy of which is attached hereto and incorporated herein by
reference. |
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(c) |
For purposes of this
Agreement, "2006-2008 XXX Percentage" shall
be equal to the Company's simple average annual XXX for the
fiscal years ending December 31, 2006, December 31, 2007 and December
31, 2008 (the "2006-2008 Fiscal Years"),
expressed as a percentage of the average annual XXX target for the
2006-2008 Fiscal Years. The average annual XXX target for the 2006-2008
Fiscal Years is set forth on Exhibit A, a copy of which is
attached hereto and incorporated herein by reference. |
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(d) |
Subject to the Participant's
continued Employment with the Company (which Employment shall not
include the performance of services under a notice of termination or
resignation), a maximum of one-third ( 1/3) of the
Option (the "2006 XXX Award") shall be
eligible for vesting ("Eligible Shares") upon
the later of (i) the date the Company's outside auditors
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complete the audit of the Company's
financial statements containing the information necessary to compute
the Company's XXX for the 2006 Fiscal Year or (ii) the date such
XXX is approved by the Board of Directors or an authorized committee
thereof, but only to the extent provided
below: |
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| 2006
XXX Percentage |
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Percentage of Eligible
Shares |
| <
66.67% |
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0% |
| 66.67% |
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10% |
| 75% |
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32.50% |
| 83.33% |
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55% |
| 91.67% |
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77.50% |
| ≥100% |
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100% |
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Interim
percentages to be interpolated linearly.
Notwithstanding
the foregoing, if the Company's actual XXX for the 2006 Fiscal
Year is less than 10%, then none of the Option subject to the
2006 XXX Award shall be Eligible
Shares.
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(e) |
Subject to the
Participant's continued Employment with the Company (which
Employment shall not include the performance of services under a notice
of termination or resignation), a maximum of two-thirds
( 2/3) of the Option (the "2006-2008 XXX
Award") shall be Eligible Shares upon the later of (i) the
date the Company's outside auditors complete the audit of the
Company's financial statements containing the information
necessary to compute the Company's XXX for the 2008 Fiscal Year
or (ii) the date such XXX is approved by the Board of Directors or an
authorized committee thereof, but only to the extent provided
below: |
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| 2006-2008
XXX Percentage |
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Percentage of Eligible
Shares |
| <
66.67% |
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0% |
| 66.67% |
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10% |
| 75% |
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32.50% |
| 83.33% |
|
55% |
| 91.67% |
|
77.50% |
| ≥100% |
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100% |
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Interim
percentages to be interpolated linearly.
Notwithstanding
the foregoing, if the Company's simple average annual XXX for the
2006-2008 Fiscal Years is less than 10%, then none of the Option
subject to the 2006-2008 XXX Award shall be Eligible
Shares.
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(f) |
Subject to the
Participant's continued Employment with the Company (which
Employment shall not include the performance of services under a notice
of termination or resignation), all Eligible Shares shall become vested
upon the later of (i) the date the Company's outside auditors
complete the audit of the Company's financial statements
containing the information necessary to compute the Company's XXX
for the 2008 Fiscal Year or (ii) the date such XXX is approved by the
Board of Directors or an authorized committee
thereof. |
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(g) |
In connection with any
event described in Section 10(a) of the Plan or in the event of a
change in applicable accounting rules, the Committee shall make such
adjustments in the terms of the Option, including but not limited to
the XXX targets, if any, as it shall determine shall be necessary to
equitably reflect such event in order to prevent dilution or
enlargement of the potential benefits of the Option. The
Committee's determination as to any such adjustment shall be
final. |
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(h) |
If the
Participant's Employment with the Company is terminated for any
reason, the Option shall, to the extent not then vested, be canceled by
the Company without consideration. and |
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the portion of the Option that has vested
shall be exercisable only as set forth in Section 3; provided, however,
that in the event the Participant is terminated for Cause (as defined
below), the portion of the Option that has vested shall immediately be
canceled without consideration to the extent not previously
exercised. |
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(i) |
[Any portion of
the Option that does not become Eligible Shares by reason of the
Company's failure to achieve an XXX Percentage as set forth above
shall immediately be forfeited without
consideration.] |
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| 3. |
Exercise
of Option. |
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(a) |
The Eligible
Shares that have become vested shall become immediately
exercisable. |
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(b) |
At any time, the
portion of the Option that has become vested and exercisable pursuant
to Section 2 and Section 3(a) is hereinafter referred to as the
"Exercisable
Portion." |
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(c) |
Period
of Exercise. Subject to the provisions of the Plan and this
Agreement, the Participant may exercise all or any part of the
Exercisable Portion of the Option at any time prior to the
earliest to occur
of: |
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(i) |
the tenth anniversary of the
Date of Grant; |
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(ii) |
the first
anniversary of the Participant's termination of Employment due to
death or Disability; |
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(iii) |
the first
anniversary of the Participant's termination of Employment by the
Company without Cause (for any reason other than due to death or
Disability) or by the Participant with Good
Reason; |
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(iv) |
three months following
the date of the Participant's termination of Employment by the
Participant for any reason (other than due to death or Disability or
Good Reason); and |
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(v) |
the date of the
Participant's termination of Employment by the Company for
Cause. |
If the Participant has entered into an employment
or service agreement with the Company or any of its Affiliates, the
definition of "Cause" set forth in such
agreement shall apply for purposes of this Agreement. Otherwise,
"Cause" shall mean (i) Participant's
engagement in misconduct which is materially injurious to the Company
or any of its Affiliates, (ii) Participant's continued failure to
substantially perform his or her duties to the Company or any of its
Affiliates, (iii) Participant's repeated dishonesty in the
performance of his or her duties to the Company or any of its
Affiliates, (iv) Participant's commission of an act or acts
constituting any (x) fraud against, or misappropriation or embezzlement
from the Company or any of its Affiliates, (y) crime involving moral
turpitude, or (z) criminal offense that could result in a jail sentence
of at least 30 days, (v) Participant's continued failure to
comply with the material applicable rules and regulations of any
regulatory authority with regulatory jurisdiction over the Company or
any of its Affiliates, or (vi) Participant's material breach of
any confidentiality or non-competition covenant entered into between
the Participant and the Company, provided that, with respect to such a
breach of covenant that could be cured, the Participant did not
promptly cure such breach. The determination of the existence of Cause
shall be made by the Committee in good faith. Notwithstanding anything
in this Agreement to the contrary, if the Committee determines in good
faith that grounds for termination of the Participant's
Employment for Cause exist or existed at the time of termination of the
Participant's Employment for any reason, then, for all purposes,
the Option shall be treated as if such termination of the
Participant's Employment were or had been for Cause.
For purposes of this Agreement,
"Disability" shall mean the inability of a
Participant to perform in all material respects his or her duties and
responsibilities to the Company, or any Affiliate of the Company, by
reason of a physical or mental disability or infirmity which inability
is reasonably expected to be permanent and has continued (i) for a
period of six consecutive months or (ii) such shorter period as the
Committee may determine in good faith. The Disability determination
shall be in the sole discretion of the Committee and a
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Participant (or his or her representative)
shall furnish the Committee with medical evidence documenting the
Participant's disability or infirmity, which is reasonably
satisfactory to the Committee.
For purposes of this
Agreement, "Good Reason" shall mean (i) a
reduction in the Participant's annual base salary or annual bonus
opportunity, or the failure to pay or provide the same when due, (ii) a
material diminution in the Participant's duties, authority,
responsibilities or title, or the assignment to the Participant of
duties or responsibilities which are materially inconsistent with his
position, (iii) a material adverse change in the Participant's
reporting relationship, or (iv) the Company's requiring the
Participant to be based at any office or location more than fifty (50)
miles from the Participant's office at the time of the date of
this Agreement; provided, however, that no such event(s) shall
constitute "Good Reason" unless the Company
shall have failed to cure such event(s) within 30 days after receipt by
the Company from the Participant of written notice describing in detail
such
event (s).
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(i) |
Subject to
Section 3(b), the Exercisable Portion of the Option may be exercised by
delivering to the Company at its principal office written notice of
intent to so exercise; provided that the Option may be
exercised with respect to whole Shares only. Such notice shall specify
the number of Shares for which an Option is being exercised and the
method of payment of the Option Price. The Option Price for the Shares
as to which the Option is exercised shall be paid to the Company, as
designated by the Committee, pursuant to one or more of the following
methods: (A) in cash or its equivalent (e.g., by check);
(B) in Shares having a Fair Market Value equal to the aggregate
Option Price for the Shares being purchased and satisfying such other
requirements as may be imposed by the Committee; (C) partly in cash and
partly in such Shares; or (D) by delivery of irrevocable
instructions to a broker to sell Shares obtained upon the exercise of
the Option and to deliver promptly to the Company an amount out of the
proceeds of such sale equal to the aggregate Option Price for the
Shares being purchased. No Participant shall have any rights to
dividends or other rights of a shareholder with respect to Shares
subject to the Option until the Participant has given written notice of
exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee
pursuant to the
Plan. |
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(ii) |
Notwithstanding any other
provision of the Plan or this Agreement to the contrary, the Option may
not be exercised prior to the completion of any registration or
qualification of the Option or the Shares under applicable state and
federal securities or other laws, or under any ruling or regulation of
any governmental body or national securities exchange that the
Committee shall in its sole discretion determine to be necessary or
advisable. |
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(iii) |
Upon the
Company's determination that the Option has been validly
exercised as to any of the Shares, the Company shall issue certificates
in the Participant's name for such Shares. However, the Company
shall not be liable to the Participant for damages relating to any
delays in issuing the certificates to him, any loss of the
certificates, or any mistakes or errors in the issuance of the
certificates or in the certificates
themselves. |
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(iv) |
In the event of the
Participant's death, subject to Section 6, the Exercisable
Portion of the Option shall remain exercisable by the
Participant's executor or administrator, or the person or persons
to whom the Participant's rights under this Agreement shall pass
by will or by the laws of descent and distribution as the case may be,
to the extent set forth in Section 3(b). Any heir or legatee of the
Participant shall take rights herein granted subject to the terms and
conditions hereof. |
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| 4. |
No Right to
Continued Employment. The granting of the Option evidenced
hereby and this Agreement shall impose no obligation on the Company or
any Affiliate to continue the Employment of the Participant and shall
not lessen or affect the Company's or its Affiliate's right
to terminate the Employment of such Participant. |
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| 5. |
Legend on
Certificates. The certificates representing the Shares
purchased by exercise of the Option shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the U.S. Securities and Exchange Commission, any stock
exchange upon which such Shares are listed, and any applicable laws,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions. |
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| 6. |
Transferability. |
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(a) |
The Option may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or
encumbered by the Participant otherwise than by will or by the laws of
descent and distribution, and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance shall be
void and unenforceable against the Company or any Affiliate; provided
that the designation of a beneficiary shall not constitute an
assignment, alienation, pledge, attachment, sale, transfer or
encumbrance; provided, further, that, upon written request by the
Participant, the Committee may, subject to such rules as the Committee
may adopt, permit the Option to be transferred by the Participant to
(i) the Participant's spouse, children or grandchildren
(including adopted and stepchildren and grandchildren) (collectively,
the "Immediate Family"); (ii) a trust
primarily for the benefit of the Participant and/or members of his or
her Immediate Family (a "Family Trust"); or
(iii) a partnership or limited liability company or other entity whose
only partners or other equity owners are a Family Trust, the
Participant and/or his or her Immediate Family members (each transferee
described in clauses (i), (ii) and (iii) above is hereinafter referred
to as a "Permitted Transferee"). The request
by the Participant shall describe the terms and conditions of the
proposed transfer and the Committee shall notify the Participant in
writing if such a transfer will be permitted. |
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(b) |
Following a permitted transfer
described in Section 6(a) above, all terms of the Option shall apply to
the Permitted Transferee and any reference in the Plan and in the
Agreement to a Participant shall be deemed to refer to the Permitted
Transferee, except that (i) Permitted Transferees shall not be entitled
to transfer the Option, other than by will or the laws of descent and
distribution, (ii) Permitted Transferees shall not be entitled to
exercise any transferred Option unless there shall be in effect a
registration statement on an appropriate form covering the shares to be
acquired pursuant to the exercise of such Option if the Committee
determines that such a registration statement is necessary or
appropriate, (iii) the Committee or the Company shall not be required
to provide any notice to a Permitted Transferee, whether or not such
notice is or would otherwise have been required to be given to the
Participant under the Plan or otherwise; provided that, if such notice
is not provided to the Permitted Transferee, such notices are delivered
by the Company to the Participant and (iv) the consequences of
termination of the Participant's Employment under the terms of
the Plan and the Agreement shall continue to be applied with respect to
the Participant, following which the transferred Option shall be
exercisable by the Permitted Transferee only to the extent, and for the
periods, specified in the Plan and the Agreement. No permitted transfer
of the Option to heirs or legatees of the Participant shall be
effective to bind the Company unless the Committee shall have been
furnished with written notice thereof and a copy of such evidence as
the Committee may deem necessary to establish the validity of the
transfer and the acceptance by the transferee or transferees of the
terms and conditions hereof. |
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(c) |
Except as otherwise described in
this Section 6, during the Participant's lifetime, the Option is
exercisable only by the
Participant. |
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| 7. |
Withholding. The
Participant may be required to pay to the Company or any Affiliate and
the Company shall have the right and is hereby authorized to withhold,
any applicable withholding taxes in respect of the Option, its exercise
or any payment or transfer under or with respect to the Option and to
take such other action as may be necessary in the opinion of the
Committee to satisfy all obligations for the payment of such
withholding taxes. |
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| 8. |
Securities
Laws. Upon the acquisition of any Shares pursuant to the
exercise of an Option, the Participant will make or enter into such
written representations, warranties and agreements as the Committee may
reasonably request in order to comply with applicable securities laws
or with this
Agreement. |
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| 9. |
Notices. Any
notice necessary under this Agreement shall be addressed to the Company
in care of its Secretary at the principal executive office of the
Company and to the Participant at the address appearing in the
personnel records of the Company for the Participant or to either party
at such other address as either party hereto may hereafter designate in
writing to the other. Any such notice shall be deemed effective upon
receipt thereof by the
addressee. |
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| 10. |
Choice of
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF BERMUDA, without regard to conflicts of
laws principles. |
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| 11. |
Option
Subject to the Plan. By entering into this Agreement the
Participant agrees and acknowledges that the Participant has received
and read a copy of the Plan. The Option is subject to the Plan
(including without limitation the arbitration provision), and the terms
and provisions of the Plan, as it may be amended from time to time, are
hereby incorporated herein by reference. In the event of a conflict
between any term or provision contained herein and a term or provision
of the Plan, the applicable terms and provisions of the Plan will
govern and prevail. |
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| 12. |
Rights as
a Shareholder. The Participant shall have no rights as a
shareholder, and shall not receive dividends, with respect to any
Shares subject to the Option until the Option has been exercised and
Share certificates have been issued to the Participant. |
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| 13. |
Fiscal Year. If the
Company's fiscal year is changed to other than a calendar year,
the references to calendar year in this Agreement shall be adjusted to
appropriately reflect the
change. |
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| 14. |
Signature in
Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. |
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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement.
ASPEN INSURANCE
HOLDINGS LIMITED
By:
AGREED AND ACKNOWLEDGED AS
OF THE DATE FIRST
ABOVE WRITTEN:
Participant
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