EXCHANGE AGREEMENT
Exhibit 10.13
THIS EXCHANGE AGREEMENT, effective as of October 27, 2005 (this “Agreement”), is made
by and between American Wholesale Insurance Holding Company, LLC, a Delaware limited liability
company (the “Company”), and Xxxx X. Xxxxx (the “Manager”). Except as otherwise
indicated, capitalized terms used herein are defined in Section 5 hereof.
WHEREAS, the Manager is the holder of 319,922 Management Units of the Company that were issued
to the Manager pursuant to that certain Admission and Vesting Agreement, dated as of April 13,
2005, by and between the Company and the Manager (the “Vesting Agreement”); and
WHEREAS, in connection with the 17th Amendment to the Company’s Operating
Agreement, the parties hereto desire to reclassify the Manager’s Management Units as Class Z Units
by exchanging such Management Units for 319,922 Class Z Units of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
Section 1. Exchange. Effective as of the date hereof, the Manager hereby
surrenders to the Company his 319,922 Management Units, free and clear of all liens, and the
Company hereby issues to the Manager 319,922 Class Z Units. The Company hereby acknowledges and
confirms that the Manager has been admitted as a Member of the Company, with all the rights,
privileges, duties and obligations of a Member in respect of such Class Z Units.
Section 2. Adoption of Operating Agreement. By his execution of this
Agreement, the Manager hereby confirms that he has accepted and agreed to be bound by and to
perform all the terms and provisions of the Operating Agreement, as it may hereafter be amended
from time to time.
Section 3. Class Z Unit Restrictions .
3.01 Return Threshold. For purposes of the Operating Agreement, the Class Z
Units issued hereunder shall have a return threshold (the “Return Threshold”) which shall
be met following such time as the Interest Holders shall have received Distributions in respect of
their Units following the date of this Agreement pursuant to the Operating Agreement equal to
$150,959,187 in the aggregate, such that the holder of such Class Z Units shall be entitled to
participate in Distributions on a pro rata basis with the holders of all other Units entitled to
receive Distributions after total Distributions made by the Company following the date of this
Agreement exceed $150,959,187.
3.02 Vesting. As of the date hereof, 31,992.20 or 10.00% of the Class Z Units issued
hereunder by the Company to the Manager shall be vested. The remaining Class Z Units shall be
unvested, and shall vest in accordance with Schedule A attached hereto; provided,
however, upon the termination of the Manager’s employment with American Wholesale Insurance Group,
Inc., a Delaware corporation, for any reason, voluntarily or involuntarily, with or without cause,
all remaining unvested Class Z Units (i) shall discontinue vesting in accordance with Schedule
A attached hereto as of the date of such event and (ii) shall be forfeited by the Manager and
terminated and cancelled by the Company.
Section 4. No Right to Common Units. For the avoidance of doubt, the
parties hereto acknowledge and agree that upon execution of this Agreement, Manager shall have
transferred his entire interest in, and shall have no further rights to, any Awarded Units (as
defined in the Vesting Agreement) pursuant to the Vesting Agreement.
Section 5. Definitions .
“Affiliates” shall have the meaning set forth in the Operating Agreement.
“Class Z Units” shall have the meaning set forth in the Operating Agreement.
“Distributions” shall have the meaning set forth in the Operating Agreement, provided
that Distributions as used herein shall include any pro rata redemption or repurchase by the
Company of its outstanding securities and any redemption or repurchase by the Company of any
Investor Equity or securities of the Company held by Holdings, its members, their respective
Affiliates or their respective successors.
“Holdings” means AmWINS Holdings, LLC, a Delaware limited liability company.
“Interest Holders” shall have the meaning set forth in the Operating Agreement.
“Investor Equity” shall have the meaning set forth in the Operating Agreement.
“Management Units” shall have the meaning set forth in the Operating Agreement.
“Member” shall have the meaning set forth in the Operating Agreement.
“Operating Agreement” shall mean the Amended and Restated Operating Agreement of
American Wholesale Insurance Holding Company, LLC, dated as of May 31, 2002, as amended (including,
without limitation, by the 17th Amendment, effective as of October 27, 2005), by and
among AmWINS Holdings, LLC and the other Persons listed on the signature pages thereto, the form of
which is attached hereto as Exhibit A.
“Person” means an individual, a partnership, a joint venture, a corporation, a limited
liability company, a trust, an unincorporated organization and a government or any department or
agency thereof.
“Units” shall have the meaning set forth in the Operating Agreement.
Section 6. Miscellaneous.
6.01 Lockup Agreement. If the Company or any of its subsidiaries undertakes an
underwritten initial public offering of its equity securities, the Manager hereby agrees that,
without the prior written consent of the Company (and Holdings, so long as Holdings or its
Affiliates owns no less than 35% of the outstanding equity interest in the Company), the Manager
shall not, directly or indirectly, effect any public sale or distribution (including sales pursuant
to Rule 144 under the Securities Act of 1933, as amended) of such equity securities or enter into a
transaction that would have the same effect, or enter into any swap, hedge or other arrangement
that transfers, in whole or in part, any economic consequences of ownership of such securities,
whether any such aforementioned transaction is to be settled by delivery of such securities or
other securities, in cash or otherwise, or publicly discloses the
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intention to make any such offer,
sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other
arrangement, in each case during a period of one (1) year following the consummation of such
offering. The Manager further agrees to execute and deliver such other similar “lock-up”
agreements (not in excess of one (1) year from the completion of the offering) requested by the
managing underwriter(s) in such offering.
6.02 Amendments and Waivers. Except as otherwise provided herein, no modification,
amendment or waiver of any provision hereof shall be effective against the Company or the Manager
unless such modification, amendment or waiver is approved in writing by the Company and the
Manager. The failure of any party to enforce any provision of this Agreement or any agreement
contemplated hereby shall in no way be construed as a waiver of such provision and shall not affect
the right of such party thereafter to enforce each and every provision of this Agreement and any
agreement referred to herein in accordance with their terms.
6.03 Assignment. Except as otherwise set forth in the Operating Agreement, the Class
Z Units shall not be assignable by the Manager without the prior written consent of the Company.
This Agreement shall be binding upon and inure to the benefit of any successors and assigns to the
Company and all Persons lawfully claiming under the Manager.
6.04 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable under any applicable law or rule
in any jurisdiction, such provision will be ineffective only to the extent of such invalidity,
illegality or unenforceability in such jurisdiction, without invalidating the remainder of this
Agreement in such jurisdiction or any provision hereof in any other jurisdiction.
6.05 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same Agreement.
6.06 Descriptive Heading. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
6.07 Governing Law. All issues concerning the enforceability, validity and binding
effect of this Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause the application of
the law of any jurisdiction other than the State of Delaware.
6.08 Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, one day after being sent to the
recipient by reputable overnight courier service (charges prepaid), upon machine-generated
acknowledgment of receipt after transmittal by facsimile or five days after being mailed to the
recipient by certified or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the Manager and to the Company at the
respective addresses indicated below:
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| If to the Manager: | ||||
| Xxxx X. Xxxxx | ||||
| __________________ | ||||
| Xxxxxxxxxxxxxx, Xxxxxxxxx 00000 | ||||
| If to the Company: | ||||
| c/o American Wholesale Insurance Group, Inc. | ||||
| 0000 Xxxxxx Xxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Attention: President and Chief Executive Officer | ||||
or to such other address or to the attention of such other Person as the recipient party has
specified by prior written notice to the sending party.
6.09 Rights. This Agreement shall not confer any rights or remedies upon any Person,
other than the parties hereto and their respective heirs, successors and permitted assigns.
6.10 No Strict Construction; Independent Significance. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.11 Delivery by Facsimile. This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of
a facsimile machine, shall be treated in all manner and respects as an original signed version
thereof delivered in person. At the request of any party hereto or to any such agreement or
instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or instrument shall raise the
use of a facsimile machine to deliver a signature or the fact that any signature or agreement or
instrument was transmitted or communicated through the use of a facsimile machine as a defense to
the formation or enforceability of a contact and each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Exchange Agreement on the day and
year first above written.
| Company: | AMERICAN WHOLESALE INSURANCE HOLDING COMPANY, LLC |
|||||
| By: | /s/ M. Xxxxxx XxXxxxx
|
|||||
| Name: M. Xxxxxx XxXxxxx | ||||||
| Its: Manager | ||||||
Manager: |
||||||
| /s/ Xxxx X. Xxxxx | ||||||
| Xxxx X. Xxxxx | ||||||
[Manager Exchange Agreement Signature Page]
SCHEDULE A
| Percentage of the Total Number | ||||||||
| As of the First Day of the | Percentage of the Total Number of | of Class Z Units Issued | ||||||
| Following Calendar | Class Z Units Issued Hereunder | Hereunder Classified as | ||||||
| Month | Classified as Vested1 | Unvested | ||||||
| November 2005 | 11.67% | 88.33% | ||||||
| December 2005 | 13.33% | 86.67% | ||||||
| January 2006 | 15.00% | 85.00% | ||||||
| February 2006 | 16.67% | 83.33% | ||||||
| March 2006 | 18.33% | 81.67% | ||||||
| April 2006 | 20.00% | 80.00% | ||||||
| May 2006 | 21.67% | 78.33% | ||||||
| June 2006 | 23.33% | 76.67% | ||||||
| July 2006 | 25.00% | 75.00% | ||||||
| August 2006 | 26.67% | 73.33% | ||||||
| September 2006 | 28.33% | 71.67% | ||||||
| October 2006 | 30.00% | 70.00% | ||||||
| November 2006 | 31.67% | 68.33% | ||||||
| December 2006 | 33.33% | 66.67% | ||||||
| January 2007 | 35.00% | 65.00% | ||||||
| February 2007 | 36.67% | 63.33% | ||||||
| March 2007 | 38.33% | 61.67% | ||||||
| April 2007 | 40.00% | 60.00% | ||||||
| May 2007 | 41.67% | 58.33% | ||||||
| June 2007 | 43.33% | 56.67% | ||||||
| July 2007 | 45.00% | 55.00% | ||||||
| August 2007 | 46.67% | 53.33% | ||||||
| September 2007 | 48.33% | 51.67% | ||||||
| October 2007 | 50.00% | 50.00% | ||||||
| November 2007 | 51.67% | 48.33% | ||||||
| December 2007 | 53.33% | 46.67% | ||||||
| January 2008 | 55.00% | 45.00% | ||||||
| February 2008 | 56.67% | 43.33% | ||||||
| March 2008 | 58.33% | 41.67% | ||||||
| April 2008 | 60.00% | 40.00% | ||||||
| May 2008 | 61.67% | 38.33% | ||||||
| June 2008 | 63.33% | 36.67% | ||||||
| July 2008 | 65.00% | 35.00% | ||||||
| August 2008 | 66.67% | 33.33% | ||||||
| September 2008 | 68.33% | 31.67% | ||||||
| 1 | For the avoidance of doubt, the percentage provided herein is cumulative, and includes all Class Z Units held by Manager that are vested as of the date of this Agreement. |
| Percentage of the Total Number | ||||||||
| As of the First Day of the | Percentage of the Total Number of | of Class Z Units Issued | ||||||
| Following Calendar | Class Z Units Issued Hereunder | Hereunder Classified as | ||||||
| Month | Classified as Vested1 | Unvested | ||||||
| October 2008 | 70.00% | 30.00% | ||||||
| November 2008 | 71.67% | 28.33% | ||||||
| December 2008 | 73.33% | 26.67% | ||||||
| January 2009 | 75.00% | 25.00% | ||||||
| February 2009 | 76.67% | 23.33% | ||||||
| March 2009 | 78.33% | 21.67% | ||||||
| April 2009 | 80.00% | 20.00% | ||||||
| May 2009 | 81.67% | 18.33% | ||||||
| June 2009 | 83.33% | 16.67% | ||||||
| July 2009 | 85.00% | 15.00% | ||||||
| August 2009 | 86.67% | 13.33% | ||||||
| September 2009 | 88.33% | 11.67% | ||||||
| October 2009 | 90.00% | 10.00% | ||||||
| November 2009 | 91.67% | 8.33% | ||||||
| December 2009 | 93.33% | 6.67% | ||||||
| January 2010 | 95.00% | 5.00% | ||||||
| February 2010 | 96.67% | 3.33% | ||||||
| March 2010 | 98.33% | 1.67% | ||||||
| April 2010 | 100.00% | 0% | ||||||
