WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY RESTRICTED SHARE UNIT AWARD AGREEMENT (Performance-Based Restricted Share Units) GRANTED UNDER THE HILB ROGAL & HOBBS COMPANY (as amended and restated on December 30, 2009 by Willis Group Holdings Limited...
Exhibit 10.6
XXXXXX
GROUP HOLDINGS PUBLIC LIMITED COMPANY
(Performance-Based
Restricted Share Units)
GRANTED
UNDER THE HILB ROGAL & XXXXX COMPANY
2007
SHARE INCENTIVE PLAN
(as
amended and restated on December 30, 2009 by Xxxxxx Group
Holdings Limited and as
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
WHEREAS, Xxxxxx Group Holdings Public Limited Company and
any successor thereto, hereinafter referred to as the
“Company,” has assumed the Hilb, Xxxxx &
Xxxxx 2007 Share Incentive Plan, as amended and restated on
December 30, 2009 by Xxxxxx Group Holdings Limited and as
amended and restated and assumed by Xxxxxx Group Holdings Public
Limited Company on December 31, 2009 (the “Plan”);
WHEREAS, the Committee (as hereinafter defined) has
determined that it would be in the best interests of the Company
and its shareholders to grant Restricted Share Units to the
Executive pursuant to the Plan and the terms set forth herein.
WHEREAS, the award of Restricted Share Units is also
granted pursuant to the terms and conditions of the SMIP (as
hereinafter defined), and is, therefore, intended to qualify as
“qualified performance-based compensation” for
purposes of Section 162(m) of the Code (as hereinafter
defined).
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
THIS RESTRICTED SHARE UNIT AGREEMENT (this
“Agreement”), effective as of [insert date] is made by
and between the Company and the individual (the
“Executive”) who has duly completed, executed and
delivered the Acceptance Form, a copy of which is attached
hereto as Schedule A (including Exhibit 1 thereto) and
which is deemed to be a part hereof (the “Acceptance
Form”) and, if applicable, the Agreement of Restrictive
Covenants and Other Obligations, a copy of which is set out in
Schedule C attached hereto and deemed to be a part hereof.
ARTICLE I
DEFINITIONS
Defined terms used this Agreement shall have the meaning
specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 —
Act
“Act” shall mean the Companies Xxx 0000 of
Ireland.
Section 1.2 —
Adjusted Earnings Per Share
“Adjusted Earnings Per Share” shall mean the
adjusted earnings per share as stated by the Company in its
annual financial results as issued by the Company with respect
to the Performance Period.
Section 1.3 —
Adjusted Operating Margin
“Adjusted Operating Margin” shall mean the
adjusted operating margin as stated by the Company in its annual
financial results as issued by the Company with respect to the
Performance Period.
Section 1.4 —
Board
“Board” shall mean the board of directors of
the Company.
Section 1.5 —
Cause
“Cause” shall mean (i) the
Executive’s continued
and/or
chronic failure to adequately
and/or
competently perform his material duties with respect to the
Company or its Subsidiaries after having been provided
reasonable notice of such failure and a period of at least ten
days after the Executive’s receipt of such notice to cure
and/or
correct such performance failure, (ii) willful misconduct
by the Executive in connection with the Executive’s
employment which is injurious to the Company or its Subsidiaries
(willful misconduct shall be understood to include, but not be
limited to, any breach of the duty of loyalty owed by the
Executive to the Company or its Subsidiaries),
(iii) conviction of any criminal act (other than minor road
traffic violations not involving imprisonment), (iv) any
breach of the Executive’s restrictive covenants and other
obligations as provided in Schedule C to this Agreement (if
applicable), in the Executive’s employment agreement (if
any), or any other non-compete agreement
and/or
confidentiality agreement entered into between the Executive and
the Company or any of its Subsidiaries (other than an
insubstantial, inadvertent and non-recurring breach), or
(v) any material violation of any written Company policy
after reasonable notice and an opportunity to cure such
violation within ten (10) days after the Executive’s
receipt of such notice.
Section 1.6 —
Change of Control
“Change of Control” shall mean (a) the
acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person (within the meaning of the Exchange
Act and the rules of the U.S. Securities and Exchange
Commission thereunder as in effect on the date hereof) or group
of Persons of the Ordinary Shares representing more than 50% of
the aggregate voting power represented by the issued and
outstanding Ordinary Shares; or (b) the occupation of a
majority of the seats (other than vacant seats) on the Board by
persons who were neither (i) nominated by the Board nor
(ii) appointed by directors so nominated. For the avoidance
of doubt, a transaction shall not constitute a Change of Control
(i) if effected for the purpose of changing the place of
incorporation or form of organization of the ultimate parent
entity of the Xxxxxx Group (including where the Company is
succeeded by an issuer incorporated under the laws of another
state, country or foreign government for such purpose and
whether or not the Company remains in existence following such
transaction) and (ii) where all or substantially all of the
person(s) who are the beneficial owners of the outstanding
voting securities of the Company immediately prior to such
transaction will beneficially own, directly or indirectly, all
or substantially all of the combined voting power of the
outstanding voting securities entitled to vote generally in the
election of directors of the ultimate parent entity resulting
from such transaction in substantially the same proportions as
their ownership, immediately prior to such transaction, of such
outstanding securities of the Company.
Section 1.7 —
Certification Date
“Certification Date” shall mean the date that
the Committee certifies in accordance with the requirements of
Code Section 162(m), the amount payable under the SMIP
based on “Earnings” for the Performance Period (as
defined in the SMIP), the attainment level of the Performance
Objectives and the number of Shares subject to RSUs that will
become Earned Performance Shares based on the amount payable
under the SMIP and attainment level of the additional
Performance Objectives.
Section 1.8 —
Code
“Code” shall mean the United States Internal
Revenue Code of 1986, as amended.
Section 1.9 —
Committee
“Committee” shall mean the Compensation
Committee of the Board or any successor thereto.
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Section 1.10 —
Earned Performance Shares
“Earned Performance Shares” shall mean Shares
subject to the Restricted Share Units in respect of which the
applicable Performance Objectives, as set out in
Section 3.1 and Exhibit 1 to the Acceptance Form, have
been achieved and shall become eligible for vesting and payment
as set out in Section 3.2.
Section 1.11 —
Grant Date
“Grant Date” shall mean [insert date].
Section 1.12 —
Performance Period
“Performance Period” shall mean [insert
performance period].
Section 1.13 —
Performance Objectives
“Performance Objectives” shall mean an Adjusted
Earnings Per Share or Adjusted Operating Margin that are set
forth in Section 3.1(a) and Exhibit 1 to the
Acceptance Form.
Section 1.14 —
Permanent Disability
The Executive shall be deemed to have a “Permanent
Disability” if the Executive meets the requirements of the
definition of such term, or of an equivalent term, as defined in
the Company’s or Subsidiary’s long-term disability
plan applicable to the Executive or, if no such plan is
applicable, in the event the Executive is unable by reason of
physical or mental illness or other similar disability, to
perform the material duties and responsibilities of his job for
a period of 180 consecutive business days out of 270 business
days.
Section 1.15 —
Person
“Person” shall have the meaning ascribed to
such term used in Sections 13(d) and 14(d) of the Exchange
Act.
Section 1.16 —
Plan
“Plan” shall mean the Hilb Rogal &
Xxxxx Company 2007 Share Incentive Plan, as amended from
time to time.
Section 1.17 —
Pronouns
The masculine pronoun shall include the feminine and neuter, and
the singular the plural, where the context so indicates.
Section 1.18 —
Restricted Share Units or RSUs
“Restricted Share Units” or “RSUs”
shall mean a conditional right to receive Ordinary Shares
pursuant to Article IX of the Plan upon vesting and
settlement, as set forth in Article III of this Agreement.
Section 1.19 —
Shares or Ordinary Shares
“Shares” or “Ordinary Shares” means
ordinary shares of the Company, nominal value of $0.000115 each,
which may be authorised but unissued.
Section 1.20 —
SMIP
“SMIP” means the Xxxxxx Group Holdings Senior
Management Incentive Plan as amended and restated on
December 30, 2009 by Xxxxxx Group Holdings Limited and as
amended and restated and assumed by Xxxxxx Group Holdings Public
Limited Company on December 31, 2009.
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Section 1.21 —
Subsidiary
“Subsidiary” shall mean with respect to the
Company, a body corporate which is a subsidiary of the Company
within the meaning of Section 155 of the Act and a
“subsidiary corporation” of that corporation within
the meaning of Section 424(f) of the Code.
Section 1.22 —
Xxxxxx Group
“Xxxxxx Group” shall mean the Company and its
Subsidiaries, collectively.
ARTICLE II
GRANT OF
RESTRICTED SHARE UNITS
Section 2.1 —
Grant of the Restricted Share Units
Subject to the terms and conditions of the Plan and the
additional terms and conditions set forth in this Agreement,
including any country-specific provisions set forth in
Schedule B to this Agreement and the additional terms and
conditions set forth in the SMIP, the Company hereby grants to
the Executive the targeted number of RSUs stated in the
Acceptance Form (including Exhibit 1 thereto). In
circumstances where the Executive is required to enter into the
Agreement of Restrictive Covenants and Other Obligations set
forth in Schedule C, the Executive agrees that the grant of
RSUs pursuant to this Agreement is sufficient consideration for
the Executive entering into such agreement.
Section 2.2 —
RSU Payment
The Shares to be issued upon vesting and settlement of the RSUs
must be fully paid up prior to issuance of Shares by payment of
the nominal value (US$0.000115) per Share. The Committee shall
ensure that payment of the nominal value for any Shares
underlying the RSUs is received by it on behalf of the Executive
at the time the RSUs vest from a Subsidiary or other source and
shall establish any procedures or protocols necessary to ensure
that payment is timely received.
Section 2.3 —
Employment Rights
Subject to the terms of the Agreement of Restrictive Covenants
and Other Obligations, where applicable, the rights and
obligations of the Executive under the terms of his office or
employment with the Company or any Subsidiary shall not be
affected by his participation in this Plan or any right which he
may have to participate in it. The RSUs and the Executive’s
participation in the Plan will not be interpreted to form an
employment agreement with the Company or any Subsidiary. The
Executive hereby waives any and all rights to compensation or
damages in consequence of the termination of his office or
employment for any reason whatsoever insofar as those rights
arise or may arise from his ceasing to have rights under or be
entitled to earn or vest in his RSUs as a result of such
termination. If, notwithstanding the foregoing, any such claim
is allowed by a court of competent jurisdiction, then, by
participating in the Plan, the Executive shall be deemed
irrevocably to have agreed not to pursue such claim and agrees
to execute any and all documents necessary to request dismissal
or withdrawal of such claims.
Section 2.4 —
Adjustments Upon a Change in Ordinary Shares
In accordance with and subject to Article X of the Plan, in
the event that the Shares subject to RSUs are, from time to
time, changed into or exchanged for a different number or kind
of Shares or other securities, by reason of a (i) share
dividend, share
split-up,
subdivision or consolidation of shares or other similar changes
in capitalization; or (ii) spin-off, spin-out,
split-up,
split-off, or other such distribution of assets to shareholders,
then the terms of the RSUs shall be adjusted as the Committee
shall determine to be equitably required, provided the number of
Shares subject to the RSUs shall always be a whole number. Any
such adjustment or determination made by the Committee shall be
final and binding upon the Executive, the Company and all other
interested persons. An adjustment may have the effect of
reducing the price at which Shares may be acquired to less than
their nominal value (the “Shortfall”), but only if and
to the extent that the Committee shall be authorized to
capitalize from the reserves of the Company a sum equal to the
Shortfall and to apply that sum in paying up that amount on the
Shares.
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Section 2.5 —
Employee Costs
(a) The Executive must make full payment to the Company or
any Subsidiary by which the Executive is employed (the
“Employer”) of all income tax, payroll tax, payment on
account, and social insurance contribution amounts
(“Tax”), which under federal, state, local or foreign
law, it is required to withhold upon vesting, settlement or
other tax event of the RSUs. In a case where any Employer is
obliged to (or would suffer a disadvantage if it were not to)
account for any Tax (in any jurisdiction) for which the
Executive is liable by virtue of the Executive’s
participation in the Plan
and/or any
social insurance contributions recoverable from and legally
applicable to the Executive (the “Tax-Related Items”),
the Executive will pay or make adequate arrangements
satisfactory to the Company
and/or the
Employer to satisfy all Tax-Related Items. In this regard, the
Executive may elect to satisfy the obligations with regard to
all Tax-Related Items by one or a combination of the following:
(i) withholding from the Executive’s wages or other
cash compensation paid to the Executive by the Company
and/or the
Employer; or
(ii) withholding from proceeds of the sale of Shares
acquired upon vesting of the RSUs either through a voluntary
sale or through a mandatory sale arranged by the Company (on the
Executive’s behalf pursuant to this authorization); or
(iii) withholding in Shares to be issued at vesting of the
RSUs, to the extent the Company permits this method of
withholding.
To avoid any negative accounting treatment, the Company may
withhold or account for Tax-Related Items by considering
applicable minimum statutory withholding amounts or other
applicable withholding rates. If the obligation for Tax-Related
Items is satisfied by withholding in Shares, for tax purposes,
the Executive is deemed to have been issued the full number of
Shares subject to vested RSUs, notwithstanding that a number of
Shares are held back solely for the purpose of paying the
Tax-Related Items due as a result of any aspect of the
Executive’s participation in the Plan.
Finally, the Executive shall pay to the Company or the Employer
any amount of Tax-Related Items that the Company or the Employer
may be required to withhold or account for as a result of the
Executive’s participation in the Plan that cannot be
satisfied by the means previously described.
Section 2.6 —
Clawback Policy
The Company may cancel all or part of the RSUs or require
payment by the Executive to the Company of all or part of any
amount or Shares acquired by the Executive upon vesting and
settlement of the RSUs pursuant to the Company’s Clawback
Policy dated December 2009, as amended from time to time, except
to the extent prohibited under applicable law.
ARTICLE III
PERIOD OF
PERFORMANCE-BASED AND TIME-BASED VESTING REQUIREMENTS
Section 3.1 —
Earning Performance Shares
(a) Subject to Sections 3.1(c) and (d) and
subject to the aggregate amount payable under the SMIP, the
Shares subject to the RSUs shall become Earned Performance
Shares as of the Earned Date and shall become eligible to vest
and become payable in accordance with the provisions of
Section 3.2 if and to the extent that the Performance
Objectives set out in Targets 1 (applicable to 50% of Target
Number of Shares) and Target 2 (applicable to 50% of Target
Number of Shares) of Exhibit 1 to the Acceptance Form are
attained and subject to the Executive being in the employment of
the Company or any Subsidiary at each respective vesting date as
set forth in Section 3.2 below.
(b) The Executive understands and agrees that the terms
under which the RSUs shall become Earned Performance Shares are
confidential and the Executive agrees not to disclose, reproduce
or distribute such confidential information concerning the
Company, except as required in the course of the
Executive’s employment with the Company or one of its
5
Subsidiaries, without the prior written consent of the Company.
The Executive’s failure to abide by this condition may
result in the immediate cancellation of the RSUs.
(c) If prior to the end of the Performance Period,
(i) the Executive’s employment terminates for reasons
other than Cause, or (ii) there is a Change of Control, the
Committee, may, in its sole discretion deem the Performance
Objectives to be attained at the level (not to exceed the
maximum level) determined by the Committee as to all or part of
the unearned Shares underlying the RSUs and deem them to be
Earned Performance Shares, provided, however, that no RSU shall
become an Earned Performance Share to the extent that any such
discretion would prevent the RSU from qualifying as qualified
performance-based compensation under Section 162(m) of the
Code.
(d) The Performance Objectives may be adjusted in
accordance with the terms of the Plan to the extent such
adjustments would not prevent the RSUs from qualifying as
qualified performance-based compensation under
Section 162(m) of the Code.
(e) As of the Certification Date, the Committee shall
certify the amount payable under the SMIP, determine the
attainment level of applicable Performance Objectives, and based
on such certification and determination, shall declare the
number of Shares subject to the RSUs that shall become Earned
Performance Shares. Anything to the contrary in this
Section 3.1 and Exhibit 1 to the Acceptance Form
notwithstanding, the Committee retains sole discretion to
determine the number of Shares subject to the RSUs that will
become Earned Performance Shares, subject to any requirements
under Code Section 162(m).
(f) Shares subject to the RSUs that are not declared by the
Committee on the Certification Date to be Earned Performance
Shares shall be forfeited immediately.
Section 3.2-
Vesting/Settlement
(a) Subject to the Executives’ continued employment
with the Xxxxxx Group through the applicable vesting date (set
forth in the left column), the Earned Performance Shares shall
vest as follows and become payable in accordance with
Section 3.2 below:
Date Earned Performance Shares |
Percentage of Earned Performance |
|||
Become Vested | Shares that Become Vested | |||
First anniversary of Grant Date | 33 | % | ||
[INSERT DATE] | 33 | % | ||
Second anniversary of Grant Date [INSERT DATE] |
34 | % | ||
Third anniversary of Grant Date [INSERT DATE] |
(b) In the event of a termination of the Executive’s
employment with Xxxxxx Group any unvested Earned Performance
Shares as of the termination date will be forfeited immediately
by the Executive, subject to, and except as otherwise specified
within, the terms and conditions of Sections 3.2(c) to
3.2(f) below.
(c) In the event of a termination of the Executive’s
employment as a result of death or Permanent Disability, the
RSUs shall become fully vested with respect to all Earned
Performance Shares on the termination date.
(d) In the event of a termination of the Executive’s
employment for reasons other than death, Permanent Disability or
Cause, the Committee may, in its discretion accelerate the
vesting of the RSUs over Earned Performance Shares as to all or
a portion of the Earned Performance Shares subject thereto. If
no determination is made as of the date of termination, then the
Earned Performance Shares shall, to the extent not then vested
be immediately forfeited by the Executive.
(e) Unless otherwise determined by the Committee, in its
sole discretion, the termination date for purposes of this
Section 3.2 and the Agreement will be the later of
(i) the last day of the Executives’s active employment
with the Company or any Subsidiary or (ii) the last day of
any notice period or garden leave, as provided for under the
Executives’ employment or service contract or local law.
6
(f) In the event of a Change of Control (as defined in the
Agreement), the RSUs shall not automatically vest and the
Committee shall have the sole discretion to accelerate the
vesting of unvested Earned Performance Shares without regard to
whether the Earned Performance Shares are assumed or substituted
by a successor company.
(g) The Executive agrees to execute and deliver the
following agreements or other documents in connection with the
grant of the RSUs within the period set forth below:
(i) the Executive must execute the Agreement of Restrictive
Covenants and Other Obligations pursuant to Article VI
below, if applicable, and deliver it to the Company within
45 days of the receipt of this Agreement;
(ii) the Executive must execute the form of joint election
as described in Schedule B for the United Kingdom and
deliver it to his employing company within 45 days of the
receipt of this Agreement; and
(iii) the Executive must execute the Acceptance Form and
deliver it to the Company within 45 days of the receipt of
this Agreement.
(h) The Committee may, in its sole discretion, cancel the
RSUs if the Executive fails to execute and deliver the
agreements and documents within the period set forth in
Section 3.2(g) or fails to meet the requirements set forth
in Section 3.1(a) and Exhibit 1 to the Acceptance Form.
(i) Except as provided herein, Earned Performance Shares
that become vested in accordance with this Section 3.2
shall be delivered within one month following the applicable
vesting date (which payment schedule is intended to comply with
the “short-term deferral” exception from the
application of Section 409A of the Code). Subject to
Section 7.16 hereof, in the case the Committee exercises
its discretion under Section 3.1(c) hereof and the Earned
Performance Shares become vested on an accelerated basis
pursuant to either Section 3.2 (c), (d) or (e), the
Earned Performance Shares underlying the RSUs shall be delivered
on April 1st of the year following the last day of the
applicable Performance Period. Finally, the Company shall not be
required to pay out the Earned Performance Shares to the
Participant unless and until the Participant has paid or made
arrangements to pay any Tax-Related Items liability in
accordance with Section 2.5.
Section 3.3 —
Conditions to Issuance of Shares
The Earned Performance Shares to be delivered upon the vesting
of the RSUs, in accordance with Section 3.2 of the
Agreement, may be either previously authorized but unissued
Shares or issued Shares held by any other person. Such Shares
shall be fully paid. The Company shall not be required to
deliver any certificates representing such Shares (or their
electronic equivalent) allotted and issued upon the applicable
date of the vesting of the RSUs prior to fulfillment of all of
the following conditions, and in any event, subject to
Section 409A of the Code for U.S. taxpayers:
(a) The obtaining of approval or other clearance from any
state, federal, local or foreign governmental agency which the
Committee shall, in its absolute discretion, determine to be
necessary or advisable; and
(b) The Executive has paid or made arrangements to pay the
Tax-Related Items pursuant to Section 2.5.
Without limiting the generality of the foregoing, the Committee
may in the case of U.S. resident employees of the Company
or any of its Subsidiaries require an opinion of counsel
reasonably acceptable to it to the effect that any subsequent
transfer of Shares acquired on the vesting of RSUs does not
violate the Exchange Act and may issue stop-transfer orders in
the U.S. covering such Shares.
Section 3.4 —
Rights as Shareholder
The Executive shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any
Shares that may be received upon the settlement of the RSUs
unless and until certificates representing such Shares or their
electronic equivalent shall have been issued by the Company to
the Executive.
Section 3.5 —
Limitation on Obligations
The Company’s obligation with respect to the RSUs granted
hereunder is limited solely to the delivery to the Executive of
Shares within the period when such Shares are due to be
delivered hereunder, and in no way shall the Company become
obligated to pay cash in respect of such obligation. The RSUs
shall not be secured by any specific
7
assets of the Company or any of its Subsidiaries, nor shall any
assets of the Company or any of its Subsidiaries be designated
as attributable or allocated to the satisfaction of the
Company’s obligations under this Agreement. In addition,
the Company shall not be liable to the Executive for damages
relating to any delays in issuing the share certificates or its
electronic equivalent to the Executive (or his designated
entities), any loss of the certificates, or any mistakes or
errors in the issuance of the certificates (or the electronic
equivalent) to the Executive (or his designated entities) or in
the certificates themselves.
ARTICLE IV
ADDITIONAL
TERMS AND CONDITIONS OF THE RSUs
Section 4.1 —
Nature of Award
In accepting the RSUs, the Executive acknowledges, understands
and agrees that:
(a) the Plan is established voluntarily by the Company, is
discretionary in nature and may be amended, suspended or
terminated by the Company at any time;
(b) the RSU award is voluntary and occasional and does not
create any contractual or other right to receive future RSU
awards, or benefits in lieu of RSU awards, even if RSU awards
have been granted repeatedly in the past;
(c) all decisions with respect to future RSUs, if any, will
be at the sole discretion of the Company;
(d) the Executive’s participation in the Plan is
voluntary;
(e) the RSUs and any Shares acquired under the Plan are not
intended to replace any pension rights or compensation under any
pension arrangement;
(f) the RSUs and any Shares acquired under the Plan are not
part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, end of service
payments, dismissal, bonuses, long-service awards, pension or
retirement or welfare benefits or similar payments and in no
event should be considered as compensation for, or relating in
any way to past services for, the Employer, the Company or any
Subsidiary;
(g) the future value of the Shares underlying the RSUs is
unknown and cannot be predicted with certainty; and
(h) no claim or entitlement to compensation or damages
shall arise from the forfeiture of the RSUs or the Shares
underlying the RSUs in the event of the Executive’s
termination of employment (whether or not in breach of contract
or local labor laws and whether or not later found to be
invalid), and in consideration of the RSU award to which the
Executive is otherwise not entitled, the Executive irrevocably
agrees never to institute any claim against the Company or any
Subsidiary, waives his ability, if any, to bring any such claim,
and releases the Company and any Subsidiary from any such claim.
Section 4.2 —
No Advice Regarding Grant
The Company is not providing any tax, legal or financial advice,
nor is the Company making any recommendations regarding the
Executive’s participation in the Plan, the issuance of
Shares upon vesting of the RSUs or sale of the Shares. The
Executive is hereby advised to consult with his own personal
tax, legal and financial advisors regarding his participation in
the Plan before taking any action related to the Plan.
8
ARTICLE V
DATA
PRIVACY NOTICE AND CONSENT
Section 5 —
Data Privacy
(a) The Executive hereby explicitly and unambiguously
consents to the collection, use and transfer, in electronic or
other form, of the Executive’s personal data as described
in this Agreement and any other RSU materials by and among, as
applicable, the Employer, the Company and its Subsidiaries for
the exclusive purpose of implementing, administering and
managing the Executive’s participation in the Plan.
(b) The Executive understands that the Company and
the Employer may hold certain personal information about the
Executive, including, but not limited to, the Executive’s
name, home address, telephone number, date of birth, social
insurance number or other identification number, salary,
nationality, job title, any Shares or directorships held in the
Company, details of all RSUs or any other entitlement to Shares
awarded, canceled, exercised, vested, unvested or outstanding in
the Executive’s favor, for the exclusive purpose of
implementing, administering and managing the Plan
(“Data”).
(c) The Executive understands that Data will be
transferred to Xxxxxx Xxxxxxx Xxxxx Xxxxxx or to any other third
party assisting in the implementation, administration and
management of the Plan. The Executive understands that the
recipients of the Data may be located in the Executive’s
country or elsewhere, and that the recipients’ country
(e.g., Ireland) may have different data privacy laws and
protections from the Executive’s country. The Executive
understands that he may request a list with the names and
addresses of any potential recipients of the Data by contacting
his local human resources representative. The Executive
authorizes the Company, Xxxxxx Xxxxxxx Xxxxx Xxxxxx and any
other recipients of Data which may assist the Company (presently
or in the future) with implementing, administering and managing
the Plan to receive, possess, use, retain and transfer the Data,
in electronic or other form, for the sole purpose of
implementing, administering and managing his participation in
the Plan. The Executive understands that Data will be held only
as long as is necessary to implement, administer and manage the
Executive’s participation in the Plan. The Executive
understands that he may, at any time, view Data, request
additional information about the storage and processing of Data,
require any necessary amendments to Data or refuse or withdraw
the consents herein, in any case without cost, by contacting in
writing his local human resources representative. The Executive
understands, however, that refusing or withdrawing his consent
may affect the Executive’s ability to participate in the
Plan. For more information on the consequences of the
Executive’s refusal to consent or withdrawal of consent,
the Executive understands that he may contact his local human
resources representative.
ARTICLE VI
AGREEMENT
OF RESTRICTIVE COVENANTS AND OTHER OBLIGATIONS
Section 6 —
Restrictive Covenants and Other Obligations
In consideration of the grant of RSUs, the Executive shall enter
into the Agreement of Restrictive Covenants and Other
Obligations, a copy of which is attached hereto as
Schedule C. In the event the Executive does not sign and
return the Agreement of Restrictive Covenants and Other
Obligations within 45 days of the receipt of this
Agreement, the Committee may, in its sole discretion, cancel the
RSUs. If no such agreement is required, Schedule C shall
state none or not applicable.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 —
Administration
The Committee shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the
Committee shall be final and binding upon the Executive, the
Company and all other interested persons. No member of the
Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect
to the Plan or the RSUs. In its absolute discretion, the
Committee may at any time and from time to time exercise any and
all rights and duties of the Committee under the Plan and this
Agreement.
Section 7.2 —
RSUs Not Transferable
Neither the RSUs nor any interest or right therein or part
thereof shall be subject to the debts, contracts or engagements
of the Executive or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law
by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect;
provided, however, that this Section 7.2
shall not prevent transfers made solely for estate planning
purposes or under a will or by the applicable laws of
inheritance.
Section 7.3 —
Binding Effect
The provisions of this Agreement shall be binding upon and
accrue to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns.
Section 7.4 —
Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company at the following
address:
Xxxxxx Group Holdings Public Limited Company
c/x Xxxxxx
North America, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Share Plans
and any notice to be given to the Executive shall be at the
address set forth in the RSUs Acceptance Form.
By a notice given pursuant to this Section 7.4, either
party may hereafter designate a different address for notices to
be given to him. Any notice that is required to be given to the
Executive shall, if the Executive is then deceased, be given to
the Executive’s personal representatives if such
representatives have previously informed the Company of their
status and address by written notice under this
Section 7.4. Any notice shall have been deemed duly given
when sent by facsimile or enclosed in a properly sealed envelope
or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly
maintained by the United States Postal Service or the United
Kingdom’s Post Office or in the case of a notice given by
an Executive resident outside the United States of America or
the United Kingdom, sent by facsimile or by a recognized
international courier service.
Section 7.5 —
Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this
Agreement.
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Section 7.6 —
Applicability of Plan
The RSUs and the Shares underlying the RSUs shall be subject to
all of the terms and provisions of the Plan, to the extent
applicable to the RSUs and the underlying Shares. With the
exception of the definition of Change of Control, in the event
of any conflict between this Agreement and the Plan, the terms
of the Plan shall control.
Section 7.7 —
Amendment
This Agreement may be amended only by a document executed by the
parties hereto, which specifically states that it is amending
this Agreement.
Section 7.8 —
Governing Law
This Agreement shall be governed by, and construed in accordance
with the laws of the Commonwealth of Virginia without regard to
its conflicts of law provisions; provided, however, that the
Agreement of Restrictive Covenants and Other Obligations, if
applicable, shall be governed by and construed in accordance
with the laws specified in that agreement.
Section 7.9 —
Jurisdiction
The courts of the state of New York shall have jurisdiction to
hear and determine any suit, action or proceeding and to settle
any disputes which may arise out of or in connection with this
Agreement and, for such purposes, the parties hereto irrevocably
submit to the jurisdiction of such courts; provided, however,
where applicable, that with respect to the Agreement of
Restrictive Covenants and Other Obligations the courts specified
in such agreement shall have jurisdiction to hear and determine
any suit, action or proceeding and to settle any disputes which
may arise out of or in connection with that agreement.
Section 7.10 —
Electronic Delivery and Acceptance
The Company may, in its sole discretion, decide to deliver any
documents related to current or future participation in the Plan
by electronic means. The Executive hereby consents to receive
such documents by electronic delivery and agrees to participate
in the Plan through an on-line or electronic system established
and maintained by the Company or a third party designated by the
Company. Further, this Agreement has been executed on behalf of
the Company electronically and the Executive accepts the
electronic signature of the Company.
Section 7.11 —
Language
If the Executive has received this Agreement, or any other
document related to the RSUs
and/or the
Plan translated into a language other than English and if the
translated version is different than the English version, the
English version will control.
Section 7.12 —
Severability
The provisions of this Agreement are severable and if any one or
more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
Section 7.13 —
Schedule B
The RSUs shall be subject to any special provisions set forth in
Schedule B for the Executive’s country of residence,
if any. If the Executive relocates to one of the countries
included in Schedule B during prior to the vesting of the
RSUs, the special provisions for such country shall apply to the
Executive, to the extent the Company determines that the
application of such provisions is necessary or advisable in
order to comply with local law or facilitate the administration
of the Plan. Schedule B constitutes part of this Agreement.
Section 7.14 —
Imposition of Other Requirements
The Company reserves the right to impose other requirements on
the RSUs and the Shares acquired upon vesting of the RSUs, to
the extent the Company determines it is necessary or advisable
in order to comply with local laws or
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facilitate the administration of the Plan, and to require the
Executive to sign any additional agreements or undertakings that
may be necessary to accomplish the foregoing.
Section 7.15 —
Counterparts.
This Agreement may be executed in any number of counterparts
(including by facsimile), each of which shall be deemed to be an
original and all of which together shall constitute one and the
same instrument.
Section 7.16 —
Code Section 409A.
For purposes of U.S. taxpayers, it is intended that the
terms of the RSUs will comply with the provisions of
Section 409A of the Code and the Treasury Regulations
relating thereto so as not to subject the Executive to the
payment of additional taxes and interest under Section 409A
of the Code, and this Agreement will be interpreted, operated
and administered in a manner that is consistent with this
intent. In furtherance of this intent, the Committee may adopt
such amendments to this Agreement or adopt other policies and
procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, in each case,
without the consent of the Executive, that the Committee
determines are reasonable, necessary or appropriate to comply
with the requirements of Section 409A of the Code and
related U.S. Department of Treasury guidance. In that
light, the Xxxxxx Group makes no representation or covenant to
ensure that the RSUs that are intended to be exempt from, or
compliant with, Section 409A of the Code are not so exempt
or compliant or for any action taken by the Committee with
respect thereto.
Anything in this Agreement to the contrary notwithstanding, no
Shares underlying the RSU Awards under this Agreement that
constitute an item of deferred compensation under
Section 409A of the Code that become payable by reason of a
Participant’s termination of employment with the Company
shall be issued to the Participant unless the Participant’s
termination of employment constitutes a “separation from
service” (within the meaning of Section 409A of the
Code and any the regulations or other guidance thereunder). In
addition, no such issuance shall be made to the Participant
prior to the earlier of (a) the expiration of the six-month
period measured from the date of the Participant’s
separation from service or (b) the date of the
Participant’s death, if the Participant is deemed at the
time of such separation from service to be a “specified
employee” (within the meaning of Section 409A of the
Code and any the regulations or other guidance thereunder) and
to the extent such delayed commencement is otherwise required in
order to avoid a prohibited distribution under Section 409A
of the Code and any the regulations or other guidance thereunder.
IN WITNESS WHEREOF, the Company and the Executive have each
executed this Agreement.
XXXXXX GROUP HOLDINGS PUBLIC LIMITED COMPANY
By:
Name:
Title: |
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SCHEDULE A
XXXXXX
GROUP HOLDINGS PUBLIC LIMITED COMPANY
ACCEPTANCE
FORM TO RESTRICTED SHARE UNIT AWARD AGREEMENT
GRANTED
UNDER THE HILB ROGAL & XXXXX COMPANY
2007
SHARE INCENTIVE PLAN
(as
amended and restated on December 30, 2009 by Xxxxxx Group
Holdings Limited and as
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
Name | ||||
Target Number of Restricted Share Units Granted
|
||||
Grant Date
|
[TBD] |
I accept the grant of Restricted Share Units by Xxxxxx Group
Holdings Public Limited Company under the Hilb,
Xxxxx & Xxxxx 2007 Share Incentive Plan, as
amended from time to time, and I agree to be bound by the terms
and conditions of the Restricted Share Unit Award Agreement
dated [TBD].
Signature:
|
Address:
|
Once completed, please return one copy of this form to:
Share Plans
Xxxxxx Group Holdings Public Limited Company
c/x Xxxxxx
North America, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
U.S.A.
This form should be returned to the above address within
45 days of receipt. Your RSUs may be cancelled if your form
is not received by that date.
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EXHIBIT 1
XXXXXX
GROUP HOLDINGS PUBLIC LIMITED COMPANY
ACCEPTANCE
FORM TO RESTRICTED SHARE UNIT AWARD AGREEMENT
GRANTED
UNDER THE HILB ROGAL & XXXXX COMPANY
2007
SHARE INCENTIVE PLAN
(as
amended and restated on December 30, 2009 by Xxxxxx Group
Holdings Limited and as
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
Performance Period: [INSERT PERIOD]
Earned Date: Certification by the Committee of the Annual
Financial Results
Target 1:
Adjusted Operating Margin (“OM”) Target
[INSERT]%
Percentage of RSU Shares Subject to Target 1: 50%
89% or below |
90-94% |
95-99% |
||||||||||||||
(OM of [INSERT] or |
(OM of |
(OM of |
||||||||||||||
Performance Scale:* | below) | [INSERT]) | [INSERT]) | 100% or above | ||||||||||||
Percentage of Earned Performance Shares:
|
0 | % | 80-89 | % | 90-99 | % | 100 | % |
Target 2:
Adjusted Earnings Per Share (“EPS”) Target
$[INSERT]
Percentage of RSU Shares Subject to Target 2: 50%
89% or below |
||||||||||||||||
(EPS of |
90-94% |
95-99% |
||||||||||||||
$ [INSERT] or |
(EPS of |
(EPS of |
||||||||||||||
Performance Scale:* | below) | [INSERT]) | $ [INSERT]) | 100% or above | ||||||||||||
Percentage of Earned Performance Shares:
|
0 | % | 80-89 | % | 90-99 | % | 100 | % |
* | Performance between amounts is subject to interpolation. |
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SCHEDULE B
XXXXXX
GROUP HOLDINGS PUBLIC LIMITED COMPANY
COUNTRY-SPECIFIC
APPENDIX TO RESTRICTED SHARE UNIT AWARD AGREEMENT
HILB
ROGAL & XXXXX COMPANY
2007
SHARE INCENTIVE PLAN
(as
amended and restated on December 30, 2009 by Xxxxxx Group
Holdings Limited and
as amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
as amended and restated and assumed by Xxxxxx Group Holdings Public Limited Company on
December 31, 2009)
Terms and
Conditions
This Schedule B includes additional terms and conditions
that govern the Restricted Share Unit Award granted to the
Executive under the Plan if the Executive resides in one of the
countries listed below. This Schedule B forms part of the
Agreement. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Agreement or the Plan.
Notifications
This Schedule B also includes information based on the
securities, exchange control and other laws in effect in the
Executive’s country as of June 2011. Such laws are often
complex and change frequently. As a result, the Company strongly
recommends that the Executive not rely on the information noted
herein as the only source of information relating to the
consequences of the Executive’s participation in the Plan
because the information may be out of date at the time the RSUs
vest under the Plan.
In addition, the information is general in nature. The Company
is not providing the Executive with any tax advice with respect
to the RSUs. The information is provided below may not apply to
the Executive’s particular situation, and the Company is
not in a position to assure the Executive of any particular
result. Accordingly, the Executive is strongly advised to
seek appropriate professional advice as to how the tax or other
laws in the Executive’s country apply to the
Executive’s situation.
Finally, if the Executive is a citizen or resident of a country
other than the one in which the Executive is currently working,
transfers employment after the RSU award is granted, or is
considered a resident of another country for local law purposes,
the notifications contained herein may not be applicable to the
Executive, and the Company shall, in its discretion, determine
to what extent the terms and conditions contained herein shall
be applicable to the Executive.
UNITED
KINGDOM
Terms
and Conditions
Tax Withholding Obligations. The following
provisions supplement Section 2.5 of the Agreement:
The Executive agrees that if he or she does not pay or the
Employer or the Company does not withhold from the Executive the
full amount of Tax-Related Items that the Executive owes at
vesting of the RSUs, or the release or assignment of the RSUs
for consideration, or the receipt of any other benefit in
connection with the RSUs (the “Taxable Event”), within
90 days after the Taxable Event or such other period
specified in section 222(1)(c) of the U.K. Income Tax
(Earnings and Xxxxxxxx) Xxx 0000, then the amount of any
uncollected income taxes will constitute a benefit to
Participant on which additional income tax and national
insurance contributions (“NICs”), including the
Employer’s NICs (as defined below) will be payable. The
Executive acknowledges that the Company or the Employer may
recover any such additional income tax and NICs at any time
thereafter by any of the means referred to in the
Section 2.5 of the
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Agreement, although the Executive acknowledges that the
Executive ultimately will be responsible for reporting any
income tax or NICs due on this additional benefit directly to
HMRC under the self-assessment regime.
Joint Election. In the case of Executives who
are U.K. tax residents, the RSU Award is conditional upon the
Executive hereby agreeing to accept any liability for any
employer National Insurance contributions (“Employer
NICs”) which may be payable by the Employer in connection
with the vesting, assignment, release or cancellation of any
RSUs. The Employer NICs may be collected by the Company or the
Employer using any of the methods described in Section 2.5.
Without prejudice to the foregoing, the Executive agrees to
execute a joint election with Company
and/or the
Employer (“Election”), the form of such Election being
formally approved by Her Majesty’s Revenue &
Customs (“HMRC”), and any other consent or elections
required to accomplish the transfer of the Employer NICs to the
Executive. The Executive further agrees to execute such other
joint elections as may be required between the Executive and any
successor to the Company
and/or the
Employer. If the Executive does not make an Election prior to
the vesting of the RSUs or if approval to the Election is
withdrawn by HMRC and a new Election is not entered into,
without any liability to the Company, the Employer or any
Subsidiary, the RSUs shall become null and void without any
liability to the Company
and/or the
Employer.
UNITED
STATES OF AMERICA
There are no country-specific provisions.
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