AMTRUST FINANCIAL SERVICES, INC.
Exhibit
10.4
2010
OMNIBUS INCENTIVE PLAN
AmTrust
Financial Services, Inc. a Delaware corporation, (the “Company”),
hereby grants restricted stock (“Restricted
Stock”) relating to shares of its common stock, $.01 par value, (the
“Stock”),
to the individual named below as the Grantee, subject to the vesting conditions
set forth in this Agreement. This grant is subject to the terms and conditions
set forth in (i) this Agreement, and (ii) the 2010 Omnibus Incentive
Plan (the “Plan”).
Unless otherwise defined herein, capitalized terms used in this Agreement are
defined in the Plan, and have the meaning set forth in the Plan.
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Award
of Restricted Stock
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You
have been granted ________ shares of Restricted Stock, subject to the
terms and conditions of this Agreement and the Plan.
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Grant
Date
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The
effective date of this grant of Restricted Stock is _______ ____, 20__
(“Grant
Date”).
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Vesting
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Your
award of Restricted Stock shall vest in four equal installments
of 25% on each of the first, second, third and fourth anniversaries of the
Grant Date, provided you remain in Service (as defined below) on the
vesting date.
“Service”
means that you are currently an employee of the Company, are a member of
the Company’s Board of Directors, or are otherwise providing services to
the Company.
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Restricted
Stock
Ownership
and
Transferability
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Subject
to the restrictions set forth in the Plan and this Agreement, the Award
holder shall possess all incidents of ownership of the Restricted Stock
granted hereunder, including the right to receive dividends with respect
to such Restricted Stock and the right to vote such Restricted
Stock.
Restricted
Stock may not be transferred, assigned, pledged or hypothecated, whether
by operation of law or otherwise (except by the laws of descent and
distribution) nor may shares of Restricted Stock be made subject to
execution, attachment or similar process.
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Forfeiture
of Unvested
Restricted
Stock
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Except
as specifically provided in this Agreement or as may be provided in other
agreements between you and the Company, no additional shares of Restricted
Stock will vest after your Service has terminated for any reason and you
will forfeit to the Company all of the Restricted Stock not yet vested or
with respect to which all applicable restrictions and conditions have not
lapsed.
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Death
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If
your Service terminates because of your death, the Restricted Stock
granted under this Agreement will automatically vest as to the number of
Restricted Stock that would have vested had you remained in Service for
the 12 month period immediately following your death.
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Disability
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If
your Service terminates because of your Disability (as defined below), the
Restricted Stock granted under this Agreement will automatically vest as
to the number of Restricted Stock that would have vested had you remained
in Service for the 12 month period immediately following your
termination for Disability.
For
purposes of this Agreement, “Disability”
shall mean the Award holder is unable to perform the duties of their
Service (or other services) (i) for a period of 90 consecutive days, or
(ii) any 120 days during any consecutive 12 month period.
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Termination For
Cause
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If
your Service is terminated for Cause (as defined below), then you shall
immediately forfeit all rights to your vested (but undelivered) and
unvested Restricted Stock and this award shall immediately
terminate.
For
purposes of this Agreement, “Cause”
shall mean (a) willful misconduct or gross negligence; (b) conviction of a
felony or conviction of a crime involving moral turpitude; (c) any act
constituting fraud or the misappropriation or embezzlement of money or
other property of any member of the Company; and (d) any willful act or
course of conduct constituting an abuse of office or authority which has a
material adverse impact on the Company’s reputation or financial
condition.
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Termination
without Cause within 12 Months of Change in Control
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If your Service with the Company
(or any affiliate) is terminated by the Company without Cause
within 12 months
following the
effective date of a
“Change of Control,” the Board of Directors may accelerate
the vesting of any award of Restricted Stock held by
you.
For purposes of this Agreement:
“Change
in Control” shall
mean:
(i) any “person” (as such
term is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange
Act”), including any syndicate or group deemed to be a “person”
under Section 13(d)(3) of the Exchange Act) other than Xxxxx Xxxxxxx,
Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, any subsidiary or any employee
benefit plan of the Company or a subsidiary or former subsidiary, is or
becomes a beneficial owner, directly or indirectly, of stock of the
Company representing 50% of more of the total voting power of the
Company’s then outstanding stock;
(ii)
a tender offer (for which a
filing has been made with the Securities and Exchange Commission (the “SEC”) that purports to comply with the
requirements of Section 14(d) of the Exchange Act, and the corresponding SEC rules)
is made for the stock of the Company. In case of a tender offer described
in this paragraph (ii), the “Change of Control” will be deemed to have
occurred upon the first to occur of (A) any time during the offer when the
person (using the definition in (i) above) making the offer owns or has
accepted for payment stock of the Company with 50% or more of the total voting
power of the Company's outstanding stock or (B) three business days before
the offer is to terminate unless the offer is withdrawn first, if the
person making the offer could own, by the terms of the offer plus any
shares owned by this person, stock with 50% or more of the total voting
power of the Company's outstanding stock when the offer terminates;
or
(iii) individuals who were the
Board’s nominees for
election as directors of the Company immediately prior to a meeting of the
stockholders of the Company involving a
contest for the election of directors shall not constitute a majority of
the Board following the election.
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2
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Certificate;
Book Entry Form; Legend
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The
Company shall issue the shares of Restricted Stock either (i) in
certificate form or (ii) in book entry form, registered in the name of the
Award holder, with legends, or notations, as applicable, referring to the
terms, conditions, and restrictions applicable to the
Award. Any certificate issued for Restricted Stock prior to
vesting will be inscribed with the following legend:
“The transferability of this
certificate and the shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) relating to Restricted Stock
contained in the AmTrust Financial Services, Inc. 2010 Omnibus Incentive Plan and an Agreement
entered into between the registered owner and AmTrust Financial Services,
Inc. Copies of such Plan and Agreement are on file at the principal office
of AmTrust Financial Services, Inc.”
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Escrow
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Any
Restricted Stock issued pursuant to this Award shall be held by the
Company in escrow for the benefit of the Award recipient. Upon vesting, a
certificate for the vested shares shall be issued to the Award holder free
of the restrictive legend.
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Vesting:
Delivery of Shares
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Upon
vesting, restrictions related to the vested shares of Restricted stock
shall lapse and the Company shall, as applicable, either remove the
notations on such vested shares issued in book-entry form or deliver to
the Award holder or their personal representative a stock certificate
representing the number of shares of Stock, free of any restrictive
legend, equal to the number of vested shares. If certificates
representing such Restricted Stock had previously been delivered to you,
you shall return such certificates to the Company, complete with any
necessary signatures or instruments of transfer prior to the issuance by
the Company of shares of Stock without the restrictive
legend.
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Income
Taxes
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(a) You
shall pay to the Company promptly upon request, and in any event at the
time you recognize taxable income in respect of the Restricted Stock
(whether in connection with the grant or vesting of the Restricted Stock,
the making of an election under Section 83(b) of the Code in connection
with the Award as described below or otherwise), an amount equal to the
taxes the Company determines it is required to withhold under applicable
tax laws with respect to the Restricted Stock. Such payment may
be made by any of, or a combination of, the following methods: (i) cash or
check; (ii) out of your current compensation; (iii) in the sole discretion
of the Company, by surrender of other shares of Common Stock of the
Company that (a) in the case of shares initially acquired from the Company
(upon exercise of a stock option or otherwise), have been owned by you for
such period, if any, as may be required to avoid a charge to the Company’s
earnings and (b) have a Fair Market Value on the date of surrender equal
to the amount required to be withheld; or (iv) in the sole discretion of
the Company, by electing to have the Company withhold or otherwise
reacquire from you shares of Restricted Stock that vest pursuant to the
terms hereof having a Fair Market Value equal to the minimum statutory
amount required to be withheld in connection with the vesting of such
shares. For these purposes, the Fair Market Value of the shares
to be withheld or repurchased, as applicable, shall be determined on the
date that the amount of the tax to be withheld is to be determined (the
“Tax
Date”).
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All
elections by you to have the shares withheld or repurchased to satisfy tax
obligations shall be made in writing in a form acceptable to the Company
and shall be subject to the following restrictions:
(i) the
election must be made on or prior to the applicable Tax Date;
(ii) once
made, the election shall be irrevocable as to the particular shares as to
which the election is made and you acknowledge that this irrevocable
written instruction is intended to constitute an instruction pursuant to
Rule 10b5-1 of the Exchange Act;
(iii) all
elections shall be subject to the consent or disapproval of the Company;
and
(iv) If
you are subject to Section 16 of the Exchange Act, the election must
comply with the applicable provisions of Rule 16(b)-3 promulgated under
the Exchange Act and shall be subject to such additional conditions or
restrictions as may be required thereunder to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
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(b) Section 83(b)
Election. You hereby acknowledge that you may file an
election pursuant to Section 83(b) of the Code to be taxed currently on
the fair market value of the shares of Restricted Stock (less any purchase
price paid for the shares), provided that such election must be filed with
the Internal Revenue Service no later than thirty (30) days after the date
of the Award. You will seek the advice of your own tax advisors
as to the advisability of making such a Section 83(b) election, the
potential consequences of making such an election, and the other tax
consequences of the Award under federal, state, and any other laws that
may be applicable. The Company and its affiliates and agents
have not and are not providing any tax advice to you.
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Recapture
Rights
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In
the event that you violate any of your obligations pursuant to the
Confidentiality, Non-Competition, or Non-Solicitation provisions of this
Agreement, you agree to return to the Company, within five days of receipt
of written demand from the Company, any gains you realize from the sale of
all or any portion of the Restricted Stock during the 12 months
immediately preceding such violation, and any remaining unsold portion of
your Restricted Stock shall be immediately and totally
forfeited.
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Confidentiality
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During
your Service, you will have access to confidential or proprietary data or
information of the Company (and its affiliates) and its
operations. You agree not to at any time divulge or communicate
the Confidential Information (defined below) to any person, nor shall you
direct any employee to divulge or communicate to any person (other than to
a person bound by confidentiality obligations similar to those contained
herein and other than as necessary in performing your duties hereunder),
or use to the detriment of the Company (or any of its affiliates) or for
the benefit of any other person, any Confidential
Information. This restriction shall survive your Service
hereunder, whether by the normal expiration thereof or
otherwise.
The
term “Confidential
Information” shall mean all information, whether or not reduced to
written or recorded form, that is related to the Company and that is not
generally known or accessible to members of the public and/or competitors
of the Company nor intended for general dissemination, whether furnished
by the Company or compiled by the employee, including, without limitation,
relating to the Company’s (or any affiliate’s) financial performance,
customers, existing or proposed future projects, prospects, or business
strategies, personnel information, financial information, customer lists,
supplier lists, trade secrets, information regarding operations, systems,
services, know-how, computer and any other processed or collated data,
computer programs, pricing, marketing and advertising data.
You
understand the Company intends to maintain the confidentiality of the
Confidential Information notwithstanding that employees of the Company may
have free access to the information for the purpose of performing their
duties with the Company, and notwithstanding that employees not expressly
bound by agreements similar to this agreement may have access to such
information for job purposes. You acknowledge that Confidential
Information need not be marked as such to preserve the confidential nature
of the information.
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Non-Competition
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You
acknowledge that (a) in the course of your Service with the Company and
its affiliates, you have, and will continue to, become familiar with the
Company’s and its affiliates’ trade secrets, methods of doing business,
business plans and other valuable confidential and proprietary information
concerning the Company, its affiliates, their customers and business
partners and that your services have been and will be of special, unique
and extraordinary value to the Company and its affiliates. In
consideration thereof and of this Award, during your Service with the
Company or an affiliate and for a period of one (1) year thereafter, you
shall not, without the Company’s prior written approval, become engaged,
directly or indirectly, as a director, officer, employee or 5% or more
stockholder or equity interest owner in, partner in, or consultant to, any
business that is directly competitive with the business of the Company (or
any affiliate) in any area or region where the Company (or any affiliate)
conducts business (“Competition”).
Notwithstanding the foregoing, you shall not be deemed to be in
Competition with the Company if you provide evidence satisfactory to the
Company, in its sole and absolute discretion, that you: (i) work in a
separate division, department or unit that does not compete with the
business of the Company (or any affiliate); and (ii) will not have contact
with the division, department or unit that does compete with the business
of the Company (or any affiliate). If you received your Restricted
Stock grant as a non-employee member of the Company’s Board of Directors,
this provision will not apply to you unless your Service is terminated for
Cause (as defined above) or for cause pursuant to the Company’s
Certificate of Incorporation.
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Non-Solicitation
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During
Service and for a period of two (2) years thereafter, you shall not,
without the prior written consent of the Company, directly or indirectly,
on your own behalf or on behalf of any other person, firm, corporation or
business entity: (a) induce or attempt to induce any agent, affinity group
or policyholder of the Company (or any affiliate), or any prior agent,
affinity group or policyholder that was an agent, affinity group or
policyholder within twelve (12) months of such contact, to withdraw,
decrease or cancel its business with the Company (or any affiliate) or
otherwise terminate any written or oral agreement or understanding or
other relationship with the Company (or any affiliate); (b) solicit or
attempt to solicit, service or attempt to service, or for the purpose of
obtaining the business of any customer of the Company (or any affiliate),
or any prior agent, affinity group or policyholder that was an agent,
affinity group or policyholder within twelve (12) months of such contact,
to the extent the business solicited is similar to, or competitive with,
the business of the Company (or any affiliate), engage
in discussions or other communications with (regardless of who initiates
such discussions or communications) any person, firm or entity that was an
actual or prospective customer of the Company during
any part of the twelve (12) month period immediately preceding termination
of
Service if
you
participated, directly or indirectly, in the solicitation or servicing of
that customer or prospective customer, or supervised or managed those who
did, during your Service
with the Company at any time during such twelve (12) month period
immediately preceding your
termination of Service; (c) solicit or attempt to solicit, hire or attempt
to hire, or call, any person who is an employee, individual consultant or
independent contractor of the Company (or any affiliate), or any prior
employee, individual consultant or independent contractor that was an
employee, consultant or independent contractor within twelve (12) months
of such contact, with
the purpose or intent of attracting such
person from the employ of the Company (or
any
affiliate);
or (d) induce or attempt to induce any person who is an employee,
individual consultant or independent contractor of the Company (or any
affiliate) to terminate or limit his or her Service or other relationship
with the Company (or any affiliate), or any prior employee, individual
consultant or independent contractor that was an employee, individual
consultant or independent contractor within twelve (12) months of such
contact.
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No Right to
Employment
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Neither
your Restricted Stock nor this Agreement give you the right to be retained
by the Company in any capacity and your Service may be terminated at any
time and for any reason.
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Shareholder
Rights
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You
have no rights as a shareholder unless and until the Stock relating to the
Restricted Stock has been issued to you (or an appropriate book entry has
been made). Except as described in the Plan or herein, no adjustments are
made for dividends or other rights if the applicable record date occurs
before your Stock is issued (or an appropriate book entry has been made).
If the Company pays a dividend on its Stock, you will, however, be
entitled to receive a cash payment equal to the per-share dividend paid on
the Stock times the number of Restricted Stock that you hold as of the
record date for the dividend.
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Applicable
Law
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This
Agreement shall be governed by the laws of the State of Delaware, with
consent to jurisdiction by you in the State of New York.
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Data
Privacy
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To
administer the Plan, the Company may process personal data about you. Such
data includes the information provided in this Agreement, other
appropriate personal and financial data about you such as home address and
business addresses and other contact information, payroll information and
any other information deemed appropriate by the Company to facilitate the
administration of the Plan.
By
accepting this award, you consent to the Company’s processing of such
personal data and the transfer of such data outside the country in which
you work or are employed, including, with respect to non-U.S. residents,
to the United States, to transferees who shall include the Company and
other persons designated by the Company to administer the
Plan.
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Consent to Electronic
Delivery
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Certain
statutory materials relating to the Plan may be delivered to you in
electronic form. By accepting this grant, you consent to electronic
delivery and acknowledge receipt of these materials, including the Plan
and the Plan prospectus.
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This
Agreement is not a not a stock certificate or a negotiable
instrument.
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By
accepting your grant, you agree to the terms and conditions in this Agreement
and in the Plan, and agree that the Plan will control in the event any provision
of this Agreement should appear to be inconsistent with the terms and conditions
of the Plan.
IN WITNESS WHEREOF, the parties have
executed this Agreement on the date and year below.
AMTRUST
FINANCIAL SERVICES, INC
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By:
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Its:
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Date:
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EMPLOYEE
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Date:
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Name:
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