ASPEN INSURANCE HOLDINGS LIMITED PERFORMANCE SHARE AWARD AGREEMENT
Exhibit
10.1
Execution
Version
ASPEN
INSURANCE HOLDINGS LIMITED
THIS AGREEMENT (the “Agreement”), is made effective as
of the 1st day of May, 2009 (hereinafter called the
“Date of Grant”), between Aspen Insurance Holdings
Limited, a Bermuda corporation (hereinafter called the
“Company”),
and
(hereinafter called the “Participant”):
R E C I T
A L
S:
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 shares 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:
1. Grant of Performance Shares. The Company hereby
awards to the
Participant Shares,
payment of which is dependent upon the performance of the
Company as described in Section 2 of this Agreement (the
“Performance Shares”).
2. Vesting. The Performance Shares shall vest and
become payable only to the extent that the Return on Equity
(calculated as described in Section 2(a) below, the
“XXX”) and the service requirements described below
are achieved.
(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.
(b) For purposes of this Agreement, “2009 XXX”
shall be equal to the Company’s actual XXX for the fiscal
year ended December 31, 2009 (the “2009 Fiscal
Year”).
(c) For purposes of this Agreement, “2010 XXX”
shall be equal to the Company’s actual XXX for the fiscal
year ended December 31, 2010 (the “2010 Fiscal
Year”).
(d) For purposes of this Agreement, “2011 XXX”
shall be equal to the Company’s actual XXX for the fiscal
year ended December 31, 2011 (the “2011 Fiscal
Year”).
(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 one-third (1/3) of the Performance
Shares awarded hereunder (the “2009 XXX Award”) shall
be eligible for vesting (“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 2009 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:
2009 XXX
|
Percentage of Eligible Shares
|
|
< 7%
|
0% | |
7%
|
10% | |
12%
|
100% | |
³
22%
|
200% | |
Interim percentages to be pro-rated.
|
Notwithstanding the foregoing, if the Company’s actual XXX
for the 2009 Fiscal Year is (i) less than 7%, then none of
the Performance Shares subject to the 2009 XXX Award shall be
Eligible Shares, (ii) greater than 12% and the average XXX
over the 2009 Fiscal Year and the immediately preceding fiscal
year is less than 7%, then the Percentage of Eligible Shares
shall be 100%; or (iii) greater than 12% and the average
XXX over the 2009 Fiscal Year and the immediately preceding
fiscal year is 7% or greater, then the Percentage of Eligible
Shares shall be in accordance with the table above.
(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), a maximum of one-third (1/3) of the Performance
Shares awarded hereunder (the “2010 XXX Award”) shall
become 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 2010 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:
2010 XXX
|
Percentage of Eligible Shares
|
|
< 7%
|
0% | |
7%
|
10% | |
12%
|
100% | |
³
22%
|
200% | |
Interim percentages to be pro-rated.
|
Notwithstanding the foregoing, if the Company’s actual XXX
for the 2010 Fiscal Year is (i) less than 7%, then none of
the Performance Shares subject to the 2010 XXX Award shall be
Eligible Shares, (ii) greater than 12% and the average XXX
over the 2010 Fiscal Year and the 2009 Fiscal Year is less than
7%, then the Percentage of Eligible Shares shall be 100%; or
(iii) greater than 12% and the average XXX over the 2010
Fiscal Year and the 2009 Fiscal Year is 7% or greater, then the
Percentage of Eligible Shares shall be in accordance with the
table above.
(g) 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 Performance
Shares awarded hereunder (the “2011 XXX Award”) shall
become 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 2011 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:
2011 XXX
|
Percentage of Eligible Shares
|
|
< 7%
|
0% | |
7%
|
10% | |
12%
|
100% | |
³
22%
|
200% | |
Interim percentages to be pro-rated.
|
Notwithstanding the foregoing, if the Company’s actual XXX
for the 2011 Fiscal Year is (i) less than 7%, then none of
the Performance Shares subject to the 2011 XXX Award shall be
Eligible Shares, (ii) greater than 12% and the average XXX
over the 2011 Fiscal Year and the 2010 Fiscal
Year is less than 7%, then the Percentage of Eligible Shares
shall be 100%; or (iii) greater than 12% and the average
XXX over the 2011 Fiscal Year and the 2010 Fiscal Year is 7% or
greater, then the Percentage of Eligible Shares shall be in
accordance with the table above.
(h) 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 2011 Fiscal Year or (ii) the
date such XXX is approved by the Board of Directors or an
authorized committee thereof.
(i) 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 Performance Shares 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 Performance Shares. The Committee’s
determination as to any such adjustment shall be final.
(j) If the Participant’s Employment with the Company
is terminated for any reason, the Performance Shares shall, to
the extent not then vested, be canceled by the Company without
consideration.
(k) Any Performance Shares that do not become Eligible
Shares by reason of the Company’s failure to achieve an XXX
as set forth above shall immediately be forfeited without
consideration.
3. Payment.
(a) The Company shall deliver to the Participant one Share
for each vested Performance Share. Any fractional share will be
rounded down to the nearest whole Share and the remainder
forfeited.
(b) Except as otherwise provided in the Plan, vested
Performance Shares shall be paid to the Participant as soon as
practicable after the date such Performance Shares become
vested, but in no event later than the fifteenth (15th) day of
the third (3rd) month following the end of the fiscal year in
which the Performance Shares become vested.
(c) When Performance Shares are paid, the Company shall
issue certificates in the Participant’s name for such.
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.
4. No Right to Continued Employment. The granting of
the Performance Shares 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.
5. Legend on Certificates. The certificates
representing the Shares paid in settlement of Performance Shares
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.
6. Transferability. The Performance Shares 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. For avoidance
of doubt, Shares issued to the Participant in payment of vested
Performance Shares pursuant to Section 3 hereof shall not
be subject to any of the foregoing transferability restrictions.
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 Performance Shares 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.
8. Securities Laws. Upon the acquisition of any
Shares pursuant to settlement of Performance Shares, 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.
9. Bermuda Government Regulations. No Shares shall
be issued pursuant to this Agreement unless and until all
relevant licenses, permissions and authorizations required to be
granted by the Government of Bermuda, or by any authority or
agency thereof, shall have been duly received.
10. 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.
11. 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.
12. Performance Shares 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 Performance Shares are 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.
13. Rights as a Shareholder. The Participant shall
have no rights as a shareholder, and shall not receive
dividends, with respect to any Performance Shares until the
Performance Shares have been paid out and Share certificates
have been issued to the Participant.
14. 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.
15. 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.
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:
OF THE DATE FIRST ABOVE WRITTEN:
Participant