Contract

Exhibit (d)(11)

EXECUTION COPY
Form of SAR Agreement for Employees (No Clawback)

STOCK APPRECIATION RIGHT AWARD AGREEMENT (this “Agreement”) dated as of [insert date] (the “Grant Date”), between Xxxxxxx International Limited, a Bahamian corporation (the “Company”), and [insert grantee’s name] (the “Grantee”).

WHEREAS the Grantee has been granted, effective as of the date of this Agreement, an award of [insert number of SARs] stock appreciation rights of the Company (“SARs”) pursuant to the Company’s 2005 Stock Incentive Plan (the “Plan”) on the terms and subject to the conditions set forth in this Agreement, and the SARs are Exercisable Other Stock-Based Awards under the Plan.

NOW, THEREFORE, in consideration of the premises and of the mutual agreements contained in this Agreement, the parties hereto agree as follows:

SECTION 1. Definitions. Capitalized terms used but not defined in this Agreement have the meanings given such terms in the Plan. As used in this Agreement, the following terms have the meanings set forth below:

“Cause” means:

(a) the Grantee’s willful and continued failure, following notice from the Company, substantially to perform the Grantee’s duties as an employee of the Company (other than as a result of incapacity due to physical or mental illness);

(b) the Grantee’s negligence or misconduct (including, without limitation, making a negative statement, written or oral, regarding the Company or its business) in the course of the Grantee’s employment with the Company or its Subsidiaries that the Committee in its sole discretion determines is detrimental to the best interests of the Company;

(c) the Grantee’s indictment of, conviction of, or plea of guilty or nolo contendere to (i) a misdemeanor involving moral turpitude or (ii) a felony (or the equivalent of such a misdemeanor or felony in a jurisdiction other than the United States);

(d) the Grantee’s material breach of this Agreement, including without limitation the provisions of Section 7;

(e) the Grantee’s violation of Company policies that the Committee in its sole discretion determines is detrimental to the best interests of the Company;

(f) the Grantee’s misappropriation, embezzlement or material misuse of funds or property belonging to the Company; or

(g) the Grantee’s use of alcohol or drugs that either interferes with the performance of the Grantee’s duties to the Company or its Subsidiaries or

adversely affects the integrity or reputation of the Company, its Subsidiaries or Affiliates, their employees or their products, as determined by the Committee in its sole discretion.

Any voluntary termination of employment by the Grantee in anticipation of an involuntary termination of the Grantee’s employment for Cause shall be deemed to be a termination for Cause.

“Vested Shares” means the SAR Shares with respect to which the SARs are exercisable at any particular time.

“Vesting Date” means the date on which the Grantee’s rights with respect to all or a portion of the SAR Shares may become fully vested, as provided in Section 4(a).

SECTION 2. Option; Exercise Price. In consideration of the Grantee’s services to Company, on the terms and subject to the conditions of this Agreement, the Grantee is hereby granted an award of stock appreciation rights (the “SARs”) with respect to up to [insert number] Ordinary Shares (the “SAR Shares”) at the price of [insert exercise price] per SAR (the “Exercise Price”); provided, however, that the SARs shall expire if this Agreement is not signed by the Grantee and returned to the Company within 60 days from the date of receipt by the Grantee of this Agreement. SARs constitute an unfunded and unsecured promise of the Company to deliver (or cause to be delivered) to the Grantee, subject to the terms of this Agreement, whole Ordinary Shares, at the time such SARs are exercised as provided herein, equal in value to (a) the excess, if any, of the Fair Market Value per Ordinary Share over the Exercise Price of the SARs, (b) multiplied by the number of Ordinary Shares with respect to which the SARs were exercised. (Fractional shares will not be delivered and the number of Ordinary Shares to be delivered upon exercise of SARs pursuant to this Agreement shall be rounded down to the nearest whole Ordinary Share.) Until such delivery, the Grantee has only the rights of a general unsecured creditor of the Company and not as a holder of Ordinary Shares.

SECTION 3. Term. The term of the SARs (the “SAR Term”) shall commence on the date hereof and expire on the seventh anniversary of the date hereof, unless the SARs shall theretofore have been terminated in accordance with the terms of the Plan or this Agreement.

SECTION 4. Time of Exercise. (a) Unless accelerated as otherwise provided in Section 4(b) or 4(c) of this Agreement or Section 11(b) of the Plan, the SARs shall vest and become exercisable in accordance with the following schedule, provided that the Grantee must be employed by the Company or an Affiliate on the relevant Vesting Date, except as provided in Section 4(b) of this Agreement or Section 11(b) of the Plan:


		Aggregate Percentage of
Vesting Dates		SAR Shares Vested and
(Anniversaries of Grant Date)		Exercisable
First		25%
Second		50%
Third		75%
Fourth		100%

(b) If the Grantee is an employee of the Company or its Subsidiaries immediately prior to a Change of Control, then all unvested SARs shall immediately vest and become exercisable as to 100% of the SAR Shares upon the first to occur of (i) the expiration of the 18-month period immediately following a Change of Control or (ii) a Qualifying Termination, provided that the SAR is still outstanding at (and has not terminated prior to) the relevant time.

(c) Except as otherwise provided in Section 6, Section 7 or Section 12 of this Agreement, the SARs shall remain exercisable as to all Vested Shares until the expiration of the SAR Term.

SECTION 5. Procedure for Exercise. (a) The SARs may be exercised with respect to Vested Shares, from time to time, in whole or in part (but for the purchase of whole shares only), by delivery of a written notice (the “Exercise Notice”) from the Grantee to the Company, which Exercise Notice shall:

(i) state that the Grantee elects to exercise the SARs;

(ii) state the number of Vested Shares with respect to which the Grantee is exercising the SARs;

(iii) include any representations of the Grantee required under Section 9 hereof;

(iv) in the event that the SARs shall be exercised by the representative of the Grantee’s estate pursuant to Section 6 or by an entity to which the SARs have been transferred or assigned in accordance with Section 10(b), include appropriate proof of the right of such Person to exercise the SARs;

(v) state the date upon which the Grantee desires to consummate the exercise of SARs (which date must be not more than 10 business days from the date of exercise and no later than the expiration of the SAR Term); and

(vi) comply with such further provisions as the Company may reasonably require.

Unless otherwise provided by the Committee, the Exercise Notice shall be substantially in the form of Exhibit A hereto and shall be delivered to the Company’s Human Resources department in accordance with the notice provisions of Section 14 hereof.

(b) The Company shall be entitled to require, as a condition of delivery of the Ordinary Shares, that the Grantee remit an amount in cash sufficient to satisfy all applicable withholding taxes relating thereto, and the Company and each of its Subsidiaries shall have the right and are hereby authorized to withhold from delivery of the Ordinary Shares, or from any compensation or other amount owing to the Grantee, the amount (in cash or, in the discretion of the Committee, Ordinary Shares, other securities, other stock appreciation rights or other property) of any applicable withholding taxes in respect of the exercise of the SARs and to take such other action as may be necessary in the discretion of the Committee to satisfy all obligations for the payment of such taxes. Notwithstanding the foregoing, subject to the approval of the Committee, the Grantee may elect to satisfy the obligation to pay any withholding tax, in whole or in part, by having the Company retain Ordinary Shares that would otherwise be delivered upon the exercise of SARs or accept upon delivery thereof other Ordinary Shares held by the Grantee for at least six months and one day sufficient in value to cover the amount of such withholding tax.

(c) Delivery of Ordinary Shares may be delayed until the lapse of such reasonable period of time following the exercise of the SARs as the Committee may from time to time establish for reasons of administrative convenience.

SECTION 6. Termination of Employment. The provisions of Section 11 of the Plan shall apply in the event of the Grantee’s termination of employment with the Company and its Subsidiaries.

SECTION 7. Confidential Information. (a) The Grantee agrees that all Confidential Information is a valuable, special and unique asset of the Company and the Grantee agrees that he or she will not, directly or indirectly, except with the prior written consent of the Company, divulge or disclose or communicate, or cause any other person or entity to divulge, disclose or communicate, to any person, firm, corporation or entity, in any manner whatsoever, any Confidential Information. The foregoing covenants shall apply to each bit of information for so long as it remains Confidential Information. For purposes of this Agreement, “Confidential Information” means all trade secrets, proprietary information and other confidential information of the Company, including, without limitation, its methods, techniques, and processes, its development, costs and pricing of its products and services, its business and marketing strategies and plans, the identity and needs of its clients and potential clients, its survey analyses and reports

prepared for its clients, and any and all non-public information furnished to the Company pursuant to its contracts with clients, financial data, personnel data, and all the other know-how, materials and things pertaining in any respect to the Company or its clients and deemed to be a “trade secret” pursuant to applicable law.

(b) The Grantee acknowledges and agrees that any violation of the provisions of Section 7(a) would cause the Company irreparable damage and that if the Grantee breaches or threatens to breach such provisions, (i) as of such time the SARs shall terminate, and (ii) the Company shall be entitled, in addition to any other rights and remedies the Company and its Subsidiaries may have at law or in equity, to obtain specific performance of such covenants through injunction or other equitable relief from a court of competent jurisdiction, without proof of actual damages and without being required to post bond.

SECTION 8. No Rights as a Shareholder. The Grantee shall not have any rights or privileges of a shareholder with respect to any Ordinary Shares unless and until certificates representing such Ordinary Shares shall be issued by the Company to such Grantee.

SECTION 9. Additional Provisions Related to Exercise. No Ordinary Shares shall be purchased upon the exercise of the SARs unless and until the Company and/or the Grantee shall have complied with all applicable Federal or state registration, listing and/or qualification requirements and all other requirements of law or of any regulatory agencies having jurisdiction. Notwithstanding anything to the contrary in this Agreement, the Committee may revoke the SARs if they are contrary to law or modify the SARs to bring them into compliance with any applicable laws or regulations.

SECTION 10. Restriction on Transfer. (a) Except as provided in Section 10(b) hereof, the SARs may not be transferred, pledged, assigned, hypothecated or otherwise disposed of in any way by the Grantee otherwise than by the Grantee’s will or the laws of descent and distribution and may be exercised during the lifetime of the Grantee only by the Grantee. If the Grantee dies, the SARs shall thereafter be exercisable, during the period specified in Section 6, by the representative of the Grantee’s estate to the full extent to which the SARs were exercisable by the Grantee at the time of death. The SARs shall not be subject to execution, attachment or similar process. Any attempted transfer, pledge, assignment, hypothecation or other disposition of the SARs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the SARs, shall be null and void and without effect.

(b) The SARs may be transferred or assigned to (i) a trust with respect to which the Grantee or a member of his or her family is a beneficiary or (ii) a corporation or other entity with respect to which the Grantee holds directly or indirectly more than 50% of the outstanding common stock or other equity interests; provided that any such transfer or assignment is subject to the approval of the Committee. All vesting and forfeiture provisions shall continue to apply to the SARs that are transferred in accordance with this Section 10(b) to the same extent that such provisions would have been applicable in the absence of any transfer.

SECTION 11. No Right to Employment. Nothing in this Agreement shall confer upon the Grantee any right to continue as an employee of the Company or any of its Affiliates or interfere in any way with the right of the Company or its Affiliates or shareholders, as the case may be, to terminate the Grantee’s employment or to increase or decrease the Grantee’s compensation at any time. The SARs shall not be treated as compensation for purposes of calculating the Grantee’s rights under any employee benefit plan, except to the extent expressly provided in any such plan.

SECTION 12. Adjustment; Change of Control. (a) In the event that the Committee determines that any dividend or other distribution (whether in the form of cash, Ordinary Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Ordinary Shares or other securities of the Company, issuance of warrants or other rights to purchase Ordinary Shares or other securities of the Company, other similar corporate transaction or event (including, without limitation, a Change of Control), change in applicable rule, ruling, regulation or other requirement of any governmental body or securities exchange, accounting principles or law, or other unusual or non-recurring event affects the Company, any of its Subsidiaries, the financial statements of the Company or any of its Subsidiaries, or Ordinary Shares such that an adjustment is determined by the Committee in its discretion to be appropriate or desirable, then the Committee may make any such adjustment, which may include, without limitation (i) adjusting any or all of the number of SAR Shares and the Exercise Price and/or (ii) canceling the SARs in exchange for a cash payment in an amount equal to the excess, if any, of the Fair Market Value of the number of SAR Shares over the aggregate Exercise Price (it being understood that, if there is no such excess, then the SARs may be canceled without any payment or consideration therefor).

(b) Without limiting the foregoing, in the event of a Change of Control, the Committee may take any action that it deems appropriate and desirable with respect to the SARs, including but not limited to providing the Grantee (i) written notice at least 20 days prior to the proposed effective date of the event constituting the Change of Control (as specified in such notice) and (ii) an opportunity during the period commencing with delivery of such notice and ending 10 days prior to such proposed effective date, to exercise the unexercised portion of the SARs in full; provided, however, that upon the occurrence of a Change of Control, the SARs, to the extent not so exercised, may be terminated without the Grantee’s consent.

(i) no fractional shares shall be issued as a result of any such adjustment, and any fractional shares resulting from the computations pursuant to Section 12(a) shall be eliminated without consideration from the SARs;

(ii) no adjustment shall be made for the issuance to shareholders of rights to subscribe for additional Ordinary Shares or other securities; and

(iii) any adjustment referred to in Section 12(a) or (b) shall be made by the Committee in its sole discretion and shall be final, binding and conclusive on the Grantee.

SECTION 13. Plan Controls. The SARs hereby granted are subject to, and the Company and the Grantee agree to be bound by, all of the terms and conditions of the Plan, as the same may be amended from time to time in accordance with the terms thereof, but no such amendment shall be effective as to the SARs without the Grantee’s consent insofar as it may adversely affect the Grantee’s rights under this Agreement. The Committee shall have sole discretion to determine whether the events or conditions described in this Agreement have been satisfied and to make all other interpretations, constructions and determinations required under this Agreement and all such determinations by the Committee shall be final, binding and conclusive. In the event of any conflict between any term or provision contained in this Agreement and a term or provision of the Plan, the applicable terms and provisions of the Plan shall govern and prevail.

SECTION 14. Notices. All notices, claims, certificates, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given and delivered if personally delivered or if sent by nationally recognized overnight courier, by telecopy or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows:

(a) if to the Company:

Xxxxxxx International Limited
Stock Award Administration
0000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy:(000) 000-0000
Attention: Human Resources

(b) if to the Grantee, to such Grantee’s address as most recently supplied to the Company and set forth in the Company’s records;

or to such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery (or if such date is not a business day, on the next business day after the date sent), (ii) in the case of nationally-recognized overnight courier, on the next business day after the date sent, (iii) in the case of telecopy transmission, when received (or if not sent on a business day, on the next business day after the date sent), and (iv) in the case of mailing, on the third business day following the date on which the piece of mail containing such communication is posted.

SECTION 15. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.

SECTION 16. Grantee’s Undertaking. The Grantee hereby agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgment deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Grantee pursuant to the provisions of this Agreement.

SECTION 17. Amendment. This Agreement may not be amended, terminated, suspended or otherwise modified except in a written instrument, duly executed by both parties.

SECTION 18. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of the Bahamas (without giving effect to principles of conflicts of laws).

SECTION 19. Exclusive Jurisdiction; Waiver of Jury Trial. (a) Except as otherwise specifically provided herein, the Grantee and the Company each hereby irrevocably submit to the exclusive jurisdiction of the Supreme Court of the Bahamas with respect to any disputes or controversies arising out of or relating to this Agreement. The parties undertake not to commence any suit, action or proceeding arising out of or relating to this Agreement in a forum other than a forum described in this Section 19(a); provided, however, that nothing herein shall preclude the Company from bringing any suit, action or proceeding in any other court for the purposes of enforcing any judgment obtained by the Company and, in such event, the Grantee hereby irrevocably submits to the jurisdiction of such other court.

(b) The agreement of the parties to the forum described in Section 19(a) is independent of the law that may be applied in any suit, action, or proceeding and the parties agree to such forum even if such forum may under applicable law choose to apply non-forum law. The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding brought in an applicable court described in Section 19(a), and each party agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. The parties agree that, to the fullest extent permitted by applicable law, a final and non-appealable judgment in any suit, action or proceeding brought in any applicable court described in Section 19(a) shall be conclusive and binding upon the parties and may be enforced in any other jurisdiction.

(c) Each party hereto irrevocably consents to the service of any and all process in any suit, action or proceeding arising out of or relating to this Agreement by the mailing of copies of such process to such party at such party’s address specified in Section 14.

(d) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of or relating to this Agreement. Each party hereto (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement by, among other things, the mutual waiver and certifications in this Section 19(d).

SECTION 20. Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts together shall constitute but one agreement.

SECTION 21. Entire Agreement. This Agreement (and the other writings incorporated by reference herein) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior written or oral negotiations, commitments, representations and agreements with respect thereto.

SECTION 22. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect to the fullest extent permitted by law. The Grantee agrees that in the event that any court of competent jurisdiction shall finally hold that any provision of this Agreement (whether in whole or in part) is void or constitutes an unreasonable restriction against the Grantee, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the greatest scope as such court may determine constitutes a reasonable restriction under the circumstances.

SECTION 23. Non-Uniformity of Treatment. There is no obligation for uniformity of treatment of the Grantee and any other holders or beneficiaries of stock appreciation rights with respect to Ordinary Shares, and the terms and conditions of these SARs and such other stock appreciation rights, and the Committee determinations and interpretations with respect to these SARs and such other stock appreciation rights need not be the same with respect to the Grantee and such other grantees (whether or not they are similarly situated) or with respect to each stock appreciation right held by the Grantee and any such other grantees.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.


		XXXXXXX INTERNATIONAL LIMITED,

		by

				Name:
				Title:

		GRANTEE,

		by


				[*insert name of Grantee*]

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