PLATINUM UNDERWRITERS HOLDINGS, LTD. Time-Based Share Unit Award
Exhibit 10.10
PLATINUM
UNDERWRITERS HOLDINGS, LTD.
Time-Based
Share Unit
Award
AWARD
AGREEMENT (this "Award Agreement"), dated as of
________________,
between Platinum Underwriters Holdings, Ltd., a Bermuda company (the “Company”),
and _____________ (the “Participant”). The award evidenced by this
Award Agreement (this "Award") is granted by the Compensation Committee of the
Company’s Board of Directors (the “Committee”) pursuant to the terms of the 2006
Share Incentive Plan (the “Plan”). The applicable terms of the Plan
are incorporated herein by reference, and capitalized terms used herein but not
defined shall have the meanings set forth in the Plan.
Section
1. Share Unit
Award. The Company hereby grants to the Participant, on the
terms and conditions set forth herein, an Award of Share Units
(the “Share Units”). The Share Units are notional units of
measurement denominated in Common Shares, which represent an unfunded, unsecured
deferred compensation obligation of the Company.
Section
2. Vesting
Requirements.
A. Time-Based
Vesting. The Award hereunder shall become vested in accordance
with the following vesting schedule, subject to the Participant’s continued
employment with the Company or any of its Subsidiaries on each of the vesting
dates:
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Number of Share Units
|
Vesting Date
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B. Accelerated
Vesting. Notwithstanding the foregoing, upon the Participant’s
death or disability (within the meaning of Section 409A(a)(2)(C) of the Code (a
“Disability”)), or upon the occurrence of a Change in Control, the Award shall
become fully vested, and shall be payable in accordance with Section 5 hereof,
to the extent that it has not previously been forfeited in accordance with
Section 3 hereof.
Section
3. Termination of Employment;
Breach of Certain Restrictive Covenants. In the event of the
Participant’s termination of employment with the Company or any of its
Subsidiaries (a "Termination of Employment") for any reason other than death or
Disability, any portion of the Award that has not previously become vested
hereunder shall be forfeited and automatically cancelled without further action
of the Company. If the Participant breaches Section 8.A hereof prior
to the occurrence of any otherwise applicable vesting date provided in Section 2
hereof, the Company may require the Participant to forfeit the Participant's
interest in the Share Units that have not yet become vested. In the
event of Termination of Employment for "Cause" (as hereinafter defined) or the
breach by the Participant of Section 8.B hereof or any covenant not to compete
with the Company or any of its Subsidiaries to which the Participant is or
becomes subject (a "Non-Compete Covenant"), (i) the Participant's rights with
respect to any Share Units hereunder, whether or not vested, may be forfeited
and cancelled by the Company and (ii) the Company may require the Participant to
return to the Company any or all of the Common Shares distributed to the
Participant under this Award, in such manner and on such terms and conditions as
may be required by the Company. For purposes of this Award Agreement,
"Cause" shall mean (i) the Participant's willful and continued failure to
substantially perform the Participant's duties to the Company or any of its
Subsidiaries; (ii) the Participant's conviction of, or plea of guilty or
nolo contendere to, a felony or other crime involving moral turpitude;
(iii) the Participant's engagement in any malfeasance or fraud or
dishonesty of a substantial nature in connection with the Participant's position
with the Company or any of its Subsidiaries, or other willful act that
materially damages the reputation of the Company or any of its Subsidiaries;
(iv) the Participant's breach of Section 8.B hereof or a Non-Compete
Covenant; or (v) the sale, transfer or hypothecation by the Participant of
Common Shares in violation of the Share Ownership Guidelines of the Company;
provided, however, that no such
act, failure to act or event that is capable of being cured by the Participant
shall be treated as “Cause” under this Award Agreement unless the Participant
has been provided a detailed, written statement of the basis for the Company’s
belief that such act, failure to act or event constitutes “Cause” and have had
at least thirty (30) days after receipt of such statement to cure such act,
failure to act or event. Notwithstanding the foregoing, the
definition of Cause in any employment or severance agreement between the Company
or any Subsidiary and the Participant in effect at the time of termination of
employment shall supersede the foregoing definition. For purposes of
this Award Agreement, no act or failure to act shall be considered “willful”
unless it is done, or failed to be done, in bad faith, and without reasonable
belief that the act or failure to act was in the best interest of the
Company.
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Section
4. Dividend Equivalent
Rights. Any dividends paid on the Common Shares during the
term of the Award shall be credited under the Award as Dividend Equivalent
Rights that will accumulate as dollar amounts (and not as additional Share
Units), subject to the terms hereof. All such Dividend Equivalent
Rights shall be subject to the same vesting requirements that apply to the Share
Units from which the Dividend Equivalent Rights are derived.
Section
5. Payment of
Award.
A. General. Subject
to the provisions of Section 5.B hereof, payment of vested Share Units shall be
made within 15 days following each annual vesting date (or within 15 days
following the acceleration of vesting) as set forth in Section 2
hereof. Notwithstanding the foregoing, no payment shall be made upon
the occurrence of a Change in Control that does not also qualify as a “change in
control” for purposes of section 409A of the Code, until the earlier to occur of
the Participant’s death, Disability and “separation from service” (within the
meaning of section 409A of the Code). The Share Units shall be paid
in Common Shares, and shall be paid to the Participant after deduction of
applicable withholding taxes in the amount determined by the Committee, provided
that such amount shall not exceed the Participant’s estimated Federal, state and
local tax obligation with respect to payment of the
Award. Notwithstanding the foregoing, any Dividend Equivalent Rights
credited under the Award pursuant to Section 4 hereof shall be paid to the
Participant in cash in accordance with the provisions of this Section 5, subject
to applicable withholding requirements.
B. Payments to “Specified
Employees” Under Certain Circumstances. Notwithstanding the
provisions of Section 5.A hereof, if the Participant is deemed a “specified
employee” at a time when such Participant becomes eligible for payments upon the
Participant’s Disability or upon the Participant’s “separation from service”
with the Company or any Subsidiary on or following a Change in Control (as
described in Section 5.A hereof), such payments shall be made to the Participant
on the date that is six months following such “separation from service” or the
date of the Participant’s death, if earlier. For purposes hereof, the
term “specified employee” shall have the meaning attributed to such term under
section 409A of the Code and the treasury regulations and other guidance
promulgated thereunder.
Section
6. Restrictions on
Transfer. No portion of the Award hereunder may be sold,
assigned, transferred, encumbered, hypothecated or pledged by the Participant,
other than to the Company as a result of forfeiture of the Award as provided
herein, unless and until the payment of the Award in accordance with Section 5
hereof.
Section
7. No Voting
Rights. The Award, whether or not vested, will not confer any
voting rights upon the Participant, unless and until the Award is paid in Common
Shares.
Section
8. Restrictive
Covenants. The effectiveness of this Award Agreement is
conditioned upon the Participant honoring the following restrictive covenants
(the “Restrictive Covenants”). These Restrictive Covenants are not
intended to amend or supersede the terms of any noncompetition or other
restrictive covenant agreed to between the Company and the Participant or to
which the Participant is subject.
A. Nondisclosure of
Confidential Information. The Participant acknowledges that
during the course of the Participant’s employment with the Company and/or its
Subsidiaries (collectively, the “Companies”) the Participant has had or will
have access to and knowledge of certain information that the Companies consider
confidential, and that the release of such information to unauthorized persons
would be extremely detrimental to the Companies. As a consequence,
the Participant hereby agrees and acknowledges that the Participant owes a duty
to the Companies not to disclose, and agrees that without the prior written
consent of the Company, at any time following the date hereof, either during or
after the Participant’s employment with any of the Companies, the Participant
will not communicate, publish or disclose, to any person anywhere or use, any
Confidential Information (as hereinafter defined), except as may be necessary or
appropriate to conduct the Participant’s duties to the Companies (provided the
Participant is acting in good faith and in the best interests of the Companies)
or as may be required by law or judicial process. The Participant
will use best efforts at all times to hold in confidence and to safeguard any
Confidential Information from falling into the hands of any unauthorized
person. The Participant will return to the Companies all Confidential
Information in the Participant’s possession or under the Participant’s control
whenever any of the Companies shall so request, and in any event will promptly
return all such Confidential Information if the Participant’s relationship with
the Companies is terminated for any or no reason and will not retain any copies
thereof. For purposes hereof, the term “Confidential Information”
shall mean any information used by or belonging or relating to the Companies
that is not known generally to the industry in which the Companies are, or may
be, engaged and which the Companies maintain on a confidential basis, including,
without limitation, any and all trade secrets and proprietary information,
information relating to the business and services, any employee information,
customer lists and records, business processes, procedures or standards,
know-how, manuals, business strategies, records, financial information, in each
case, whether or not reduced to writing or stored electronically, as well as any
information that the Companies advise the Participant should be treated as
confidential.
B. Non-Solicitation and
Non-Hire of Employees. The Participant agrees that for a
period beginning on the date hereof and ending 12 months following the date of
the Participant’s termination of employment with the Companies for any reason,
the Participant shall not, on the Participant’s own behalf or on behalf of any
other person or entity, without the prior written consent of the Company,
directly or indirectly, solicit, hire or cause to be solicited or hired by an
enterprise with which Participant may ultimately become associated, or
participate in or promote the solicitation of, interfere with, attempt to
influence or otherwise affect the employment of, any employee of the Companies
whose annual compensation exceeds $100,000.
C. Representation of
Participant. Upon the acceptance of the Common Shares by the
Participant following the vesting of such Common Shares hereunder, the
Participant shall be deemed to represent that the Participant has not engaged in
nor has any intention of engaging in any action that would constitute a
violation of the Restrictive Covenants or any Non-Compete Covenant.
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D. Injunctive
Relief. The Participant acknowledges and agrees that the
Restrictive Covenant provisions of this Section 8 are reasonable and necessary
for the successful operation of the Companies. The Participant
further acknowledges that if the Participant breaches any provision of the
Restrictive Covenants, the Companies will suffer irreparable
injury. It is therefore agreed that the Company shall have the right
to enjoin any such breach or threatened breach, without posting any bond, if so
ordered by a court of competent jurisdiction. The existence of this
right to injunctive and other equitable relief shall not limit any other rights
or remedies that the Company may have at law or in equity including, without
limitation, the right to monetary, compensatory and punitive
damages. In addition to any means at law or equity available to the
Company to enforce the Restrictive Covenants, the Company shall retain any
rights it may have under this Award Agreement relating to the Award for a breach
of the Restrictive Covenants including, without limitation, the right to cancel
the Award and the right to require the Participant to return to the Company any
Common Shares issued hereunder in respect of any vested Share Units and to
refund any cash paid in respect of any Dividend Equivalent Rights accrued
hereunder. If any provision of this Section 8 is determined by a
court of competent jurisdiction to be not enforceable in the manner set forth
herein, the Participant and the Company agree that it is the intention of the
parties that such provision should be enforceable to the maximum extent possible
under applicable law. If any provision of this Section 8 is held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision of this Section
8.
Section
9. Award Subject to
Plan. The Award is subject to the terms of the Plan, the terms
and provisions of which are hereby incorporated by reference. In the
event of a conflict or ambiguity between any term or provision contained herein
and a term or provision of the Plan, the Plan will govern and
prevail.
Section
10. Changes in
Capitalization. The Award shall be subject to the provisions
of Section 3.2 of the Plan relating to adjustments for changes in corporate
capitalization.
Section
11. No Right of
Employment. Nothing in this Award Agreement shall confer upon
the Participant any right to continue as an employee of the Company or any
Subsidiary nor to interfere in any way with the right of the Company or any
Subsidiary to terminate the Participant’s employment at any time or to change
the terms and conditions of such employment.
Section
12. Governing
Law. This Award Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
choice of law principles thereof.
IN
WITNESS WHEREOF, the Company and the Participant have executed this Award
Agreement effective as of the date first above written.
PLATINUM
UNDERWRITERS HOLDINGS, LTD.
By: _____________________________________
Name:
___________________________________
Title:
____________________________________
PARTICIPANT
By: _____________________________________
Name:
___________________________________
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