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EXHIBIT 4.3
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OVERSEAS PARTNERS LTD.
INCENTIVE COMPENSATION PLAN
(THE "PLAN")
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OVERSEAS PARTNERS LTD.
INCENTIVE COMPENSATION PLAN
Article 1
Establishment, Objectives, and Duration
1.1. Establishment of the Plan. By this document, Overseas Partners Ltd.,
a Bermuda company (the "Company"), establishes the incentive compensation plan.
The Plan permits the Committee to grant Nonqualified Stock Options, Incentive
Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares
and Performance Units, and it allows employees to purchase Shares as described
in Article 10.
1.2. Objectives of the Plan. The objectives of the Plan are to: (a)
optimize the profitability and growth of the Company by linking the compensation
of Participants to the value of the Company's Shares and thereby aligning the
interests of Participants more closely with those of the Company's shareowners;
(b) to provide Participants with an incentive for excellence in individual
performance; and (c) to promote teamwork among Participants. The Plan is also
intended to provide flexibility to the Company in its ability to motivate,
attract, and retain employees who make significant contributions to the
Company's success by allowing Participants to share in the success of the
Company.
1.3. Duration of the Plan. Subject to approval by the Company's
shareowners, the Plan shall become effective on May 11, 2000 and shall remain in
effect (subject to the right of the Committee to amend or terminate the Plan as
described in Article 15), until all Shares allotted to the Plan have been
purchased or acquired according to the Plan's provisions. However, no Awards
will be granted under the Plan on or after May 11, 2010. Employees may purchase
Shares as described in Article 10 after May 11, 2010, subject to the Committee's
right to amend or terminate the Plan as described in Article 15.
Article 2
Definitions
The following terms shall have the meanings set forth below, and when this
meaning is intended, the initial letter of the word shall be capitalized:
2.1. Affiliate means any corporation, partnership, joint venture or other
entity in which the Company either directly or indirectly controls at least 25%
of the voting interest or owns at least 25% or more of the value or capital or
profits interest of such entity.
2.2. Award means, individually or collectively, a grant under this Plan of
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights,
Restricted Stock, Performance Shares and Performance Units.
2.3. Award Agreement means an agreement entered into by the Company and a
Participant setting out the terms and provisions applicable to an Award.
2.4. Beneficial Owner or Beneficial Ownership shall have the meaning given
to the term in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
2.5. Board or Board of Directors means the Board of Directors of the
Company.
2.6. Change in Control of the Company shall be deemed to have occurred as
of the first day that any one or more of the following conditions has been
satisfied:
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(a) The Shareowners of the Company approve a reorganization, merger, share
exchange or consolidation, in each case, where persons who were shareowners of
the Company immediately prior to such reorganization, merger, share exchange or
consolidation do not, immediately afterward, own more than 50% of the combined
voting power of the reorganized, merged, surviving or consolidated company's
then outstanding securities entitled to vote generally in the election of
directors; or
(b) There is a liquidation or dissolution of the Company or the sale of
substantially all of the Company's assets; or
(c) After May 11, 2000, there is a change of 20% or more of the members of
the Board of Directors of the Company (the "Incumbent Board"). However, any
person becoming a director after May 11, 2000, who was properly elected and was
approved by a vote of at least 50% of the current directors (other than an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) shall be deemed a member of the Incumbent Board; or
(d) After May 11, 2000, there is a change of 50% or more of the executive
officers of the Company at the level of Vice President and above within a
consecutive 12-month period.
2.7. Code means the Internal Revenue Code of 1986, as amended from time
to time, or any successor Act to the Code.
2.8. Committee means the Compensation Committee of the Board.
2.9. Company means Overseas Partners Ltd. and its Subsidiaries and
Affiliates.
2.10. Director means any individual who is a member of the Board of
Directors.
2.11. Disability shall have the meaning given to the term in the Company's
long-term disability plan, or if no such plan exists, the meaning determined by
the Committee in its discretion.
2.12. Effective Date means May 11, 2000.
2.13. Employee means a person providing services to the Company who is
classified on the Company payroll as an employee. Under no circumstances shall
an individual who performs services for the Company, but who is not classified
on the Company's payroll as an employee (for example, an individual performing
services for the Company under a leasing agreement), be treated as an Employee
even if that individual qualifies as an "employee" of the Company by virtue of
common law principles or the leased employee rules under Code (S)414(n).
Further, if an individual performing services for the Company is later
reclassified as an Employee of the Company, this reclassified individual shall
not be treated as an Employee for purposes of this Plan for any period prior to
the actual date of his or her reclassification. Directors who are employed by
the Company shall be considered Employees under this Plan.
2.14. ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act to ERISA.
2.15. Exchange Act means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act to the Exchange Act.
2.16. Fair Value of a Share shall mean, as of any date, the value of a
Share determined as follows:
(a) If the common stock of the Company is listed on any established stock
exchange or quoted on an electronic quotation system, the Fair Value of a the
closing bid and asked prices, if no sales were reported on the relevant date),
as quoted on such exchange
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or system on the last trading day before the date the Share value is to be
determined, as reported in The Wall Street Journal or any other source that the
Board deems reliable; or
(b) If the common stock of the Company is not publicly traded (i.e., there
is no established market for the common stock of the Company), the Fair Value of
a Share shall be the price per Share that the Board has most recently authorized
the Company to purchase from its shareowners. In making this determination, the
Board may consider a variety of factors, including past and current earnings,
earnings estimates, the ratio of the Company common stock to debt of the
Company, the stock price, earnings and book value of comparable companies,
industry considerations, liquidity, other factors affecting the business and
outlook of the Company and general economic conditions, as well as opinions
furnished by investment advisors and other experts acting as independent
appraisers. The Board shall not be required to follow any predetermined formula,
but shall have discretion to exercise its judgment in light of the long-term
interests of the Company and its shareowners; or
(c) If, for any reason, the Fair Value of a Share cannot be determined or
is unavailable for the date in question, the Fair Value of a Share may, in the
sole and absolute discretion of the Board, be determined as of the nearest
preceding date on which the value can be determined under the appropriate method
described above.
2.17. Freestanding SAR means an SAR that is granted independently of any
Options, as described in Article 7.
2.18. Incentive Stock Option or ISO means an option to purchase Shares
granted under Article 6, which is designated as an Incentive Stock Option and is
intended to meet the requirements of Code (S)422.
2.19. Insider means an individual who is, on the relevant date, an
officer, Director or ten percent (10%) Beneficial Owner of any class of the
Company's equity securities that is registered pursuant to Section 12 of the
Exchange Act, all as defined under Section 16 of the Exchange Act.
2.20. Key Person means a consultant, distributor or other person who has
rendered or will render valuable services to the Company.
2.21. Nonqualified Stock Option or NQSO means an option to purchase Shares
granted under Article 6 that is not intended to be treated as an ISO under Code
(S)422.
2.22. Option means an Incentive Stock Option or a Nonqualified Stock
Option as described in Article 6.
2.23. Option Price means the price at which a Share may be purchased by a
Participant in respect of an Option.
2.24. Outside Director means a member of the Board who is not an employee
and who qualifies as (1) a "non-employee director" under Rule 16b-3(b)(3) of the
General Rules and Regulations of the Exchange Act, and (2) an "outside director"
under Code (S)162(m) and regulations made thereunder.
2.25. Participant means an Employee, Director or Key Person who has been
selected to receive an Award or who has an Award outstanding under the Plan.
2.26. Performance-Based Exception means the performance-based exception
from the deduction limitations of Code (S)162(m).
2.27. Performance Share means an Award granted to a Participant, as
described in Article 9.
2.28. Performance Unit means an Award granted to a Participant, as
described in Article 9.
2.29. Period of Restriction means the period during which the transfer of
Shares of Restricted Stock is subject to a substantial risk of forfeiture, as
described in Article 8.
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2.30. Plan Year means the period from March 1 to February 28 of each
calendar year.
2.31. Restricted Stock means an Award granted to a Participant as
described in Article 8. This term also includes awards of units tied to the
value of Shares, but not in the form of actual Shares, during the Period of
Restriction.
2.32. Retirement means the first day of the calendar month on which the
Participant reaches the age of 65 or such other date as determined by the
Committee in its discretion.
2.33. Shares means shares of the common stock, par value $0.10 per share,
of the Company.
2.34. Stock Appreciation Right or SAR means an Award, granted alone or in
connection with a related Option, as described in Article 7.
2.35. Subsidiary means any corporation, partnership, joint venture, or
other entity in which the Company either directly or indirectly controls at
least 50% of the voting interest or owns at least 50% of the value or capital or
profits interest.
2.36. Tandem SAR means an SAR that is granted in connection with a related
Option as described in to Article 7, the exercise of which shall require
forfeiture of the right to purchase a Share under the related Option (and when a
Share is purchased under the Option, the Tandem SAR shall similarly be
canceled).
2.37. Target Amount means, with respect to an Award, the target amount
upon which such Award is based, which shall be specified in the Award Agreement.
2.38. Termination For Cause or For Cause shall have the meaning given to
the term(s) in the Company's Handbook, or if no Handbook exists, the meaning
determined by the Committee in its discretion.
Article 3
Administration
3.1. General. The Plan shall be administered by the Committee; provided,
however, that: (1) the Board may at any time take on the powers, authority and
duties of the Committee, and (2) the Board shall have the powers, authority and
duties of the Committee with respect to the granting and interpretation of
Awards to Outside Directors. The Committee shall be appointed by, and shall
serve at the discretion of, the Board of Directors. If permitted by law, the
Committee shall have the authority to delegate administrative duties to officers
or Directors of the Company. Provided however, that only a Committee (or a sub-
committee) comprised solely of two or more Outside Directors may grant Awards
that will meet the Performance-Based Exception.
3.2. Authority of the Committee. Except as limited by law or by the
Memorandum of Association or Bye-laws of the Company, and subject to the
provisions described in this document, the Committee shall have full power to
select the Employees, Directors and Key Persons who are granted Awards;
determine the sizes and types of Awards; determine the terms and conditions of
Awards in a manner consistent with the Plan; construe and interpret the Plan and
any agreement or instrument entered into under the Plan; establish, amend, or
waive rules and regulations for the Plan's administration; and (subject to the
provisions of Article 14 and Article 15) amend the terms and conditions of any
outstanding Award. Further, the Committee shall make all other determinations
that may be necessary or advisable for the administration of the Plan.
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3.3. Decisions Binding. All decisions made by the Committee under this
Plan and all related orders and resolutions of the Committee shall be final,
conclusive and binding on all persons, including the Company, its shareowners,
Directors, Employees, Key Persons, Participants, and their estates and
beneficiaries.
Article 4
Shares Subject to the Plan and Maximum Awards
4.1. Number of Shares Available for Grants. Subject to adjustment as
provided in Sections 4.2 and 15.2, the number of Shares reserved for issuance to
Participants under the Plan shall be five million (5,000,000). The Committee
shall determine the appropriate method for calculating the number of Shares
actually issued under the Plan. Unless the Committee determines that an Award
shall not be designed to comply with the Performance-Based Exception, the
following rules shall apply to Awards granted under the Plan:
(a) Stock Options: The maximum number of Shares that may be granted in the
form of Stock Options in any one Plan Year, to any one Participant, shall be
150,000.
(b) SARs: The maximum number of Shares that may be granted in the form of
Stock Appreciation Rights in any one Plan Year, to any one Participant, shall be
150,000.
(c) Restricted Stock: The maximum number of Shares that may be granted in
the form of Restricted Stock in any one Plan Year, to any one Participant, shall
be 150,000.
(d) Performance Shares/Units: The maximum payout (determined at the end
of the applicable Performance Term, as defined in Article 9) with respect to
Awards of Performance Shares/Units granted in any one Plan Year, to any one
Participant, shall equal the value of 150,000 Shares.
(e) Stock Purchase Plan: The maximum number of Shares that may be
purchased in any one Plan Year, by any one Participant, shall be 20,000.
4.2. Adjustments in Authorized Shares. In the event of any change in
corporate capitalization, such as a stock split or dividend, or a corporate
transaction, such as a merger, consolidation, separation, including a spin-off,
or other distribution of stock or property of the Company, any reorganization
(whether or not such reorganization comes within the definition of such term in
Code (S)368) or any partial or complete liquidation of the Company, an
adjustment shall be made in the number and class of Shares reserved for issuance
under Section 4.1, in the number and class of and/or price of Shares subject to
outstanding Awards granted under the Plan, and in the Award limits described in
Section 4.1, as the Committee, determines to be appropriate and equitable in
order to prevent dilution or enlargement of rights; provided, however, that the
number of Shares awarded shall always be a whole number.
4.3. Reissuance of Shares. If any Shares subject to an Award are
forfeited or an Award otherwise terminates without the issuance of all of the
Shares to a Participant, or if any Shares are surrendered by a Participant in
full or partial payment of the price of an Option, these Shares shall be
available for grant under the Plan.
Article 5
Eligibility and Participation
5.1. Eligibility. Persons eligible to participate in this Plan include
all Employees, Directors and Key Persons.
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5.2. Actual Participation. Subject to the provisions of the Plan, the
Committee may, at its discretion, select from all eligible Employees, Directors
and Key Persons, those to whom Awards shall be granted and shall determine the
nature and amount of each Award.
Article 6
Stock Options
6.1. Grant of Options. Subject to the terms and provisions of the Plan,
the Committee may grant Options in such number, and upon such terms, and at such
time as the Committee, may determine; provided, however, that ISOs may only be
granted to Participants who are Employees of the Company or a "subsidiary" of
the Company (within the meaning of Code (S)424(f)).
6.2. Award Agreement. Stock Options shall be granted in an Award
Agreement that shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option relates, and such other provisions as the
Committee determines. The Award Agreement shall also state whether the Option
is intended to be an ISO or an NQSO.
6.3. Option Price. The Option Price for each Option shall be at least
equal to one hundred percent (100%) of the Fair Value of a Share on the date as
of which the Option is granted. With respect to Awards of ISOs, the Option
Price of any ISO may not be less than one hundred percent (100%) of the Fair
Value of a Share on the date as of which the Option is granted, and the Option
Price of any ISO which is granted to an individual who owns more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
"parent" or "subsidiary" corporation of the Company (within the meaning of Code
(S)424(e) and (f) may not be less than one hundred and ten percent (110%) of the
Fair Value of a Share on the date as of which the Option is granted.
6.4. Duration of Options. Each Option shall expire on a date determined
by the Committee at the time of grant; provided, however, that no Option shall
be exercisable later the tenth (10th) anniversary date of its grant.
6.5. Exercise of Options. Options granted shall be exercisable at such
times and be subject to such restrictions and conditions as the Committee shall
in each instance approve, which need not be the same for each grant or for each
Participant.
6.6. Payment. Options granted shall be exercised by the delivery of
notice to the Company (in accordance with the procedures established by the
Committee), setting forth the number of Shares with respect to which the Option
is to be exercised, together with full payment for the Shares.
The Option Price upon exercise of any Option shall be payable to the
Company in full either:
(a) in cash or its equivalent, or
(b) by tendering previously acquired Shares having a total value at the
time of exercise equal to the Option Price, or
(c) by a combination of (a) and (b); provided, however, that Shares
tendered must have been held by the Participant for at least six (6) months
prior to their tender (i.e., "mature shares" for accounting purposes).
Further, with respect to any Participant who is an Insider, if tendering
shares, the transaction (1) must have met the requirements of an exemption under
Rule 16b-3 of the General Rules and Regulations of the Exchange Act (the
"General Rule"), as amended from time to time, or (2) be a subsequent
transaction, the terms of which were provided for in a transaction initially
meeting the requirements of an exemption under the General Rule. Unless the
Award Agreement provides otherwise, paying the Option Price as described above,
or other evidence of share ownership shall be deemed to be subsequent
transactions approved by the original grant of an Option.
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6.7 Delivery of the Shares. As soon as practicable after exercise of an
Option, the Company will deliver to First Union, as Custodian for the Shares,
for the benefit of the Participant, the Shares purchased by the Participant.
First Union will send the Participant notification that it has the Shares in its
possession.
First Union will register the Shares in its name and will sell or otherwise
dispose of the Shares upon the Participant's instruction and in conformity with
the restrictions contained in the Company's Bye-laws. Any cash dividends and
other distributions that may be paid on the Shares will be promptly remitted by
First Union to the Participant. Until instructions are received by First Union
requesting that the certificates for Shares be delivered to a purchaser, First
Union will continue to hold such Shares, as Custodian for the purchaser.
6.8. Restrictions on Share Transferability. All Shares acquired shall be
subject to the Company's Bye-laws and the Memorandum of Association. Further,
the Committee may impose such restrictions on any Shares acquired under this
Article, as it may deem advisable, including, without limitation, restrictions
under applicable federal securities laws, under the requirements of any stock
exchange or market upon which the Shares are then listed and/or traded, and
under any state securities laws applicable to the Shares.
6.9. Termination of Employment/Directorship/Other Relationship. If a
Participant's employment is terminated because of a loss of Bermuda work permit,
retirement, death or disability, or For Cause, Articles 19, 20 and 21 shall
apply. Otherwise, each Participant's Award Agreement shall state the extent to
which the Participant may exercise the Option following termination of the
Participant's employment or directorship or other relationship with the Company.
Such provisions shall be determined by the Committee, shall be included in the
Award Agreement, need not be uniform among all Options issued under this
Article, and may reflect distinctions based on the reasons for termination.
However, for Participants receiving ISO's, in no event shall the Award Agreement
for the ISO specify that the Option may be exercised beyond the time limits
established in Code (S)422, unless the Option is no longer to be considered an
ISO.
6.10. No transferability of Options. Except as otherwise provided in a
Participant's Award Agreement, no Option granted under this Article may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant's Award Agreement, all Options granted to a
Participant under this Article shall be exercisable during his or her lifetime
only by such Participant; provided, however, that in the event the Participant
is incapacitated and unable to exercise his or her Option, the Option may be
exercised by the Participant's legal representative, or other representative
whom the Committee deems appropriate. The determination of incapacity of a
Participant and the determination of the appropriate representative of the
Participant shall be determined by the Committee.
Article 7
Stock Appreciation Rights
7.1. Grant of SARs. Subject to the terms and conditions of the Plan, the
Committee may grant SARs in such number and upon such terms, and at such time as
the Committee, may determine. The Committee may grant Freestanding SARs, Tandem
SARs, or any combination of these forms of SARs. The grant price of a
Freestanding SAR shall equal the Fair Value of a Share on the date of grant of
the SAR. The grant price of a Tandem SAR shall equal the Option Price of the
related Option.
7.2. SAR Agreement. SARs shall be granted in an Award Agreement that
shall specify the grant price, the term of the SAR, and such other provisions as
the Committee shall determine.
7.3. Term of SARs. Each SAR shall expire on a date determined by the
Committee at the time of grant; provided, however, that no SAR shall be
exercised later than the tenth (10th) anniversary of the date of grant.
7.4. Exercise of Tandem SARs. Tandem SARs may be exercised for all or part
of the Shares subject to the related Option. Upon exercise of a Tandem SAR, the
related Option shall automatically be canceled to the
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extent of the number of Shares subject to the exercise. Conversely, if the
related Option is exercised, the Tandem SAR shall automatically be canceled to
the extent of the number of Shares subject to the exercise. A Tandem SAR may
only be exercised with respect to Shares for which its related Option is
exercisable.
Notwithstanding any other provision of this Plan to the contrary, with respect
to a Tandem SAR granted in connection with an ISO: (a) the Tandem SAR will
expire at the same time as the underlying ISO; (b) the value of the payout with
respect to the Tandem SAR may not be greater than one hundred percent (100%) of
the difference between the Option Price of the underlying ISO and the Fair Value
of the Shares subject to the ISO at the time the Tandem SAR is exercised; and
(c) the Tandem SAR may only be exercised when the Fair Value of the Shares
subject to the ISO exceeds the Option Price of the ISO.
7.5. Exercise of Freestanding SARs. Freestanding SARs shall be exercised
according to the terms and conditions contained in the Award Agreement.
7.6. Payment of SAR Amount. Upon exercise of an SAR, the Participant
shall, upon exercise, be entitled to receive from the Company an amount equal
to: (a) multiplied by (b) where (a) and (b) equal the following:
(a) (i) The Fair Value of a Share on the date of exercise; less
(ii) The grant price per Share; plus
(iii) Paid and declared dividends per Share of common stock
underlying the SAR from the beginning of the grant date to
the date the SAR is exercised;
(b) The number of Shares with respect to which the SAR is exercised.
As indicated above, upon exercise of an SAR, a Participant shall be
entitled to all dividends paid (either cash or stock) and declared on Shares of
common stock underlying the SAR from the grant date to the date the SAR is
exercised. During this period, dividends will accrue without interest.
The form of SAR payout shall be stated in the Award Agreement. Payment may
be in cash, in Shares of equivalent value, or some combination of these two.
7.7. Termination of Employment/Directorship/Other Relationship. If a
Participant's employment is terminated because of a loss of Bermuda work permit,
retirement, death or disability, or For Cause, Articles 19, 20 and 21 shall
apply. Otherwise, each SAR Award Agreement shall state the extent to which the
Participant has the right to exercise the SAR following termination of the
Participant's employment or directorship or other relationship with the Company.
Such provisions shall be determined in the sole discretion of the Committee,
shall be included in the Award Agreement entered into with the Participant, need
not be uniform among all SARs issued pursuant to the Plan, and may reflect
distinctions based on the reasons for termination.
7.8. Nontransferability of SARs. Except as otherwise provided in a
Participant's Award Agreement, no SAR granted under the Plan may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant's Award Agreement, all SARs granted to a
Participant under the Plan shall be exercisable during his or her lifetime only
by such Participant; provided, however, that in the event the Participant is
incapacitated and unable to exercise his or her SAR, such SAR may be exercised
by such Participant's legal representative, or other representative whom the
Committee deems appropriate. The determination of incapacity of a Participant
and the appropriate representative shall be determined by the Committee.
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Article 8
Restricted Stock
8.1. Grant of Restricted Stock. Subject to the terms and provisions of
the Plan, the Committee may grant Shares of Restricted Stock in such number and
upon such terms, and at such times, as the Committee, may determine.
8.2. Award Agreement. Restricted Stock shall be granted in an Award
Agreement that shall specify the Period(s) of Restriction, the number of Shares
of Restricted Stock granted, conditions and/or restrictions to the grant, if
any, and such other provisions as the Committee shall determine.
8.3. Other Restrictions. All Shares of Restricted Stock shall be subject
to the Company's Bye-laws and Memorandum of Association. Further, the Committee
shall impose such other conditions and/or restrictions on any Shares of
Restricted Stock granted under the Plan as it deems advisable including, without
limitation: (1) a requirement that Participants pay a stipulated purchase price
for each Share of Restricted Stock; (2) restrictions based upon the achievement
of specific performance goals; (3) time-based restrictions on vesting following
the attainment of the performance goals, and (4) restrictions under applicable
federal or state securities laws. Such restrictions may apply after the Period
of Restriction specified in the Award Agreement, or after the satisfaction of
any other conditions set forth in the Award Agreement. Shares of Restricted
Stock shall be forfeited to the extent that a Participant fails to satisfy the
applicable conditions and/or restrictions during the Period of Restriction. The
Company may retain the certificates representing Shares of Restricted Stock in
the Company's possession until such time as all conditions and/or restrictions
applicable to the Shares have been satisfied. Except as otherwise provided in
this Article, the Company's Bye-laws and/or Memorandum of Association, or as
otherwise provided in the Award Agreement, Shares of Restricted Stock granted
under the Plan shall become freely transferable by the Participant after the
last day of the applicable Period of Restriction.
8.4. Voting Rights. Unless otherwise provided in the Award Agreement,
Participants holding Shares of Restricted Stock granted under the Plan shall be
permitted to exercise full voting rights with respect to those Shares during the
Period of Restriction.
8.5. Dividends. Unless otherwise provided in the Award Agreement, during
the Period of Restriction, Participants holding Shares of Restricted Stock
granted under the Plan shall be credited with dividends (either cash or stock)
paid or declared, as well as any other non-cash distributions made by the
Company with respect to the underlying Shares all of which shall be accrued and
granted upon vesting of the Restricted Stock. During the Period of Restriction,
dividends shall be accrued without interest. The Committee may apply any
restrictions to the dividends and/or distributions that the Committee deems
appropriate. Without limiting the generality of the preceding sentence, if the
grant or vesting of Shares of Restricted Stock is intended to comply with the
requirements of the Performance-Based Exception, the Committee may apply any
restrictions it deems appropriate to the payment of dividends declared with
respect to such Shares of Restricted Stock, such that the dividends and/or the
Shares of Restricted Stock maintain eligibility for the Performance-Based
Exception.
8.6. Transferability. Except as otherwise provided in a Participant's
Award Agreement, and subject to the Company's Bye-laws and Memorandum of
Association, Shares of Restricted Stock may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the applicable
Period of Restriction specified in the Award Agreement, or upon earlier
satisfaction of any other conditions in the Award Agreement, other than by will
or by the laws of descent and distribution.
8.7. Termination of Employment/Directorship/Other Relationship. If a
Participant's employment is terminated because of a loss of Bermuda work permit,
retirement, death or disability, or For Cause, Articles 19, 20 and 21 shall
apply. Otherwise, each Restricted Stock Award Agreement shall set forth the
extent to which the Participant shall have the right to receive unvested
Restricted Shares following termination of the Participant's employment or
directorship or other relationship with the Company prior to the end of the
Period of Restriction. Such provisions shall be determined by the Committee,
shall be included in the Award Agreement, need not be
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uniform among all Shares of Restricted Stock issued under the Plan, and may
reflect distinctions based on the reasons for termination.
Article 9
Performance Units and Performance Shares
9.1. Grant of Performance Units/Shares. Subject to the terms of the Plan,
the Committee may grant Performance Units and Performance Shares in such number,
and upon such terms, and at such time as the Committee, may determine.
9.2. Award Agreement. Performance Units or Performance Shares shall be
granted in an Award Agreement that shall specify the initial value of the
Performance Units/Shares, the performance goals, the number of Performance
Units/Shares granted, and such other provisions as the Committee shall
determine.
9.3. Value of Performance Units/Shares. Each Performance Unit shall have
an initial value that is established by the Committee at the time of grant. Each
Performance Share shall have an initial value equal to the Fair Value of a Share
as of the date of grant. The Committee shall set performance goals in its
discretion which, depending on the extent to which they are met, will determine
the number and/or value of Performance Units/Shares that will be paid to the
Participant. For purposes of this Article, the time period during which the
performance goals must be met shall be called the "Performance Term".
9.4. Earning of Performance Units/Shares. Subject to the terms of this
Plan, after the applicable Performance Term has ended, the holder of Performance
Units/Shares shall be entitled to receive payout on the number and value of
Performance Units/Shares earned by the Participant over the Performance Term, to
be determined as a function of the extent to which the performance goals have
been met. Performance Units/Shares shall be forfeited to the extent that a
Participant fails to satisfy the applicable performance goals during the
Performance Term.
9.5. Form and Timing of Payment of Performance Units/Shares. Payment of
earned Performance Units/Shares shall be made in a single lump sum following the
close of the applicable Performance Term. Subject to the terms of this Plan, the
Committee, may pay earned Performance Units/Shares in the form of cash or in
Shares (or a combination of the two), which have a Fair Value equal to the value
of the earned Performance Units/Shares at the end of the applicable Performance
Term. Such Shares shall be granted subject to the Company's Bye-laws and
Memorandum of Association and to any restrictions deemed appropriate by the
Committee. The form of payout shall be stated in the Award Agreement. The Award
Agreement shall state whether a Participant is entitled to receive any dividends
(either cash or stock) declared with respect to the Shares underlying the
Performance Unit/Share. In addition, Participants may, at the discretion of the
Committee and as provided in the Award Agreement, be entitled to exercise voting
rights with respect to such Shares.
9.6. Termination of Employment/Directorship/Other Relationship. If a
Participant's employment is terminated because of a loss of Bermuda work permit,
retirement, death or disability, or For Cause, Articles 19, 20 and 21 shall
apply. Otherwise, the Award Agreement shall state the extent to which the
Participant shall have the right to receive payment with respect to Performance
Units/Shares following termination of the Participant's employment or
directorship or other relationship with the Company prior to the last day of the
Performance Term. Such provisions shall be determined by the Committee, shall
be included in the Award Agreement entered into with each Participant, need not
be uniform among all Performance Units/Shares issued pursuant to this Plan, and
may reflect distinctions based on the reasons for termination.
9.7. Non-transferability. Except as otherwise provided in an Award
Agreement, Performance Units/Shares may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. Except as otherwise provided in a
Participant's Award Agreement, no Performance Units/Shares granted under the
Plan may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, except as otherwise
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provided in a Participant's Award Agreement, all Performance Units/Shares
granted to a Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant; provided, however, that in the event the
Participant is incapacitated and unable to exercise his or her Performance
Units/Shares, such Performance Units/Shares may be exercised by such
Participant's legal representative, or other representative whom the Committee
deems appropriate. The determination of incapacity of a Participant and the
appropriate representative shall be determined by the Committee in its sole and
absolute discretion.
Article 10
Employee Stock Purchase
10.1 Eligibility. Only Employees who, on the date on which their
subscription is accepted by the Company, have been employed by the Company for
at least six (6) months shall be entitled to purchase shares under the Plan;
provided, however, that Employees who are subject to Section 16(b) of the
Exchange Act may not subscribe to Shares unless such subscription is approved by
the Committee.
10.2 Purchase Price; Delivery of Shares; Payment. The purchase price for
each Share shall equal the Fair Value. An eligible Employee may subscribe to
purchase not less than 50 Shares, nor more than 20,000 Shares annually, by
delivering a fully executed subscription agreement, together with a check or
money order payable to "First Union National Bank," ("First Union") as Transfer
Agent. Availability of Shares to be purchased will be determined by the Company
in its sole discretion.
10.3 Acceptance of Subscriptions by the Company. No subscription for the
purchase of Shares will be binding on the Company until the Company has accepted
it. The Company reserves the right, in its sole discretion, to accept or reject
any subscription in part or in its entirety.
The Company's acceptance of a subscription will take place upon the
mailing, or personal delivery to the subscriber, of a notice of acceptance,
confirming its acceptance of the subscription, and showing the number and Fair
Value of the Shares sold to the subscriber ("Notice of Acceptance"). The
subscriber will be advised of the acceptance of his or her subscription by an
account statement from First Union, who is the Custodian for the Company's
Shares, indicating the number of Shares newly allocated to his or her account.
The account statement will be mailed to the subscriber as soon as practicable
after the purchase date.
The Company will not accept a subscription until the subscriber's check or
money order has been collected. If any check or money order cannot be
collected, the Company may, in its sole discretion, return the subscription
documents or request that the subscriber forward cash or wire funds in the
amount of his or her payment.
10.4 Normal Processing of Subscriptions. The process of receiving
subscriptions, determining acceptability and mailing Notices of Acceptance may
require up to 15 days after the Company receives the subscription. Employees
whose subscriptions for Shares are received less than 15 days prior to a change
in the Fair Value of the Shares may incur an increase in the Fair Value of the
Shares to which they subscribe. Similarly, subscriptions for Shares received
less than 15 days prior to the record date of a dividend on Shares may not be
processed in time to enable the subscriber to receive the dividend. Subscribers
will not be entitled to receive, and no adjustment will be made on account of,
any cash or stock dividend paid or declared to shareowners of record on a date
preceding acceptance of subscriptions (including where subscriptions are
accepted on a purchase date). In no event shall the Company be liable for any
costs or damages to a subscriber due to such changes in price or the failure to
receive such dividends. Further, in no event will interest be paid on account
of any subscription payment delayed due to questions as to the acceptability of
an individual subscriber.
10.5 Insufficient Number of Shares Available. If there are not enough
Shares available to satisfy all subscriptions for Shares the Company, in its
sole discretion, will fill subscriptions for Shares as such subscriptions are
received.
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10.6 Effects of Changes in Fair Value or Dividends on Unaccepted
Subscriptions. Shares will be sold at the Fair Value in effect when the Company
accepts the subscription. Subscribers who send payment with their subscription
and whose subscriptions have not been accepted by the Company at the time of an
increase in the Fair Value of the Shares will be notified of the increase, and
the individual subscriber may then choose either (i) to withdraw his or her
subscription, or (ii) to pay the additional amount needed to equal the higher
Fair Value of the Shares, or (iii) to reduce to not less than 50 the number of
Shares subject to the subscription. If the Fair Value of the Shares decreases at
any time, the Company will give notice to subscribers of this fact and afford
them the opportunity to withdraw their subscription or, in the alternative,
either to seek a refund of the amounts not needed to pay the aggregate Fair
Value of the Shares subscribed to or to increase the number of Shares which the
subscriber desires to purchase.
In the event of a stock split prior to acceptance of subscriptions that
have been received, the price and number of shares subject to the subscription
will be adjusted proportionately. The Board shall determine, in its sole
discretion, whether a distribution is a stock split.
10.7 Rejection of Subscriptions. Notwithstanding any provision of this
Plan to the contrary, the Committee, may accept or reject any subscription until
the subscription has been accepted. Upon the rejection of a subscription, the
Company will refund to the subscriber, or if applicable, will cause First Union
to refund to the subscriber, without interest, any monies paid by such
subscriber on account of his or her subscription.
10.8 Delivery of the Shares for the Account of Subscribers Upon
Acceptance. As soon as practicable after the Company has accepted a
subscription, the Company will deliver to First Union as Custodian for the
Shares, for the benefit of the subscriber, the Shares purchased by the
subscriber. First Union will send the Subscriber notification that it has the
shares in its possession.
First Union will register the Shares in its name and will sell or otherwise
dispose of the Shares upon the subscriber's instruction and in conformity with
the restrictions contained in the Company's Bye-laws. Any cash dividends and
other distributions that may be paid on the Shares will be promptly remitted by
First Union to the subscriber. Until instructions are received by First Union
requesting that the certificates for Shares be delivered to a purchaser, First
Union will continue to hold such Shares as Custodian for the purchaser.
Article 11
Performance Measures
11.1 Performance Measures. Until the shareowners approve a change in the
general performance measures set forth in this Article, the following will be
used by the Committee to determine the payout and/or vesting with respect to
Awards which are intended to qualify for the Performance-Based Exception:
(a) Earnings per share;
(b) Net income (before or after taxes);
(c) Return measures (including, but not limited to, return on assets,
equity, or sales);
(d) Cash flow return on investments which equals net cash flows divided by
owners equity;
(e) Earnings before or after taxes;
(f) Gross revenues;
(g) Share price (including, but not limited to, growth measures and total
shareowner return);
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(h) Pretax profit;
(i) Economic Value Added;
(j) Gross premiums written;
(k) Combined ratio;
(l) Underwriting income;
(m) Net income;
(n) Return on equity; and/or
(o) NPV of underwriting results.
11.2 Degree of Attainment. The Committee shall have discretion to
determine the degree to which the pre-established performance goals have been
met; provided, however, that Awards which are intended to qualify for the
Performance-Based Exception may not be adjusted upward (the Committee shall
retain the discretion to adjust such Awards downward).
11.3 Modifications to Performance Measures. In the event that applicable
tax and/or securities laws change to permit the Committee the discretion to
alter the governing performance measures without obtaining shareowner or
Participant approval of such changes, the Committee shall have sole discretion
to make such changes without obtaining shareowner or Participant approval. In
addition, in the event that the Committee determines that it is advisable to
grant Awards that shall not qualify for the Performance-Based Exception, the
Committee may make such grants without satisfying the requirements of Code
(S)162(m).
Article 12
Deferrals
The Committee may require or permit: (a) a Participant to defer his or her
receipt of payment or Shares that would otherwise be due to such Participant by
virtue of the exercise of an Option or SAR, (b) the lapse or waiver of
restrictions with respect to Restricted Stock, or (c) deferral of meeting any
requirements or goals with respect to Performance Units/Shares, provided that no
deferral shall be longer than 60 days without the prior written consent of the
Participant. If payment or receipt of Shares is deferred, the Committee shall,
establish rules and procedures for such payment deferrals. However,
notwithstanding the preceding provisions of this Article nor any other provision
of this Plan to the contrary, the Committee shall not, (1) in establishing the
terms and provisions of any Award, or (2) in exercising its powers under this
Article, create any arrangement which would constitute an employee pension
benefit plan as defined in ERISA (S)3(2) unless the arrangement provides
benefits solely to one or more individuals who constitute members of a select
group of management or highly compensated employees (within the meaning of ERISA
(S)(S)201(2), 301(a)(3), 401(a)(1) and 4021(b)(6)).
Article 13
Rights of Employees/Directors
13.1. Employment and Performance of Services. Nothing in the Plan shall
interfere with or limit in any way the right of the Company to terminate a
Participant's employment or service contract, nor confer upon a Participant any
right to continue in the employ of the Company or the right to continue
performing services for the Company.
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13.2. Participation. No Employee, Director or Key Person shall have the
right to be selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
Article 14
Change in Control
14.1. Treatment of Outstanding Awards. Upon the occurrence of a Change in
Control, unless otherwise specifically prohibited under applicable laws, or by
the rules and regulations of any governmental agencies or national securities
exchanges, or otherwise agreed by the Company and the Participant:
(1) SARs. Any SARs granted under the Plan shall become immediately
exercisable and, within thirty (30) days following the effective date of the
Change in Control (the "Change in Control Date"), the Participant shall, upon
exercise, be paid as follows:
(a) If the Change of Control Date occurs within one year following the
date of grant of the SAR, the Participant shall be paid the greater of
(i) the Defined Amount, or (ii) the Target Amount upon which the Award
was based pro rated as to the time that has elapsed prior to the
Change in Control Date.
(b) If the Change of Control Date occurs later than one year following the
date of grant of the SAR, the Participant shall be paid the Defined
Amount.
The Defined Amount shall equal (a) multiplied by (b) where (a) and (b)
equal the following:
(a) (i) The Fair Value of a Share on the date of exercise; less
(ii) The grant price per Share; plus
(iii) Paid and declared dividends per Share of common stock underlying
the SAR from the beginning of the grant date to the date the SAR
is exercised;
(b) The number of Shares with respect to which the SAR is exercised.
(2) Restricted Stock (Non-performance based). Any restriction periods and
restrictions imposed on Shares of Restricted Stock based on continued service
and/or employment shall lapse and, within thirty (30) days following the Change
in Control Date, the Participant shall receive the number of Shares specified as
the Target Award, pro rated based on the time that has elapsed under the Award
Agreement prior to the Change in Control Date.
(3) Restricted Stock (Performance based) & Performance Units/Shares.
Performance-based Restricted Stock and Performance Units/Shares shall vest as of
the Change in Control Date, and within thirty (30) days following the Change in
Control Date, the Participant shall be paid the Target Award (in cash or Shares,
as the case may be) pro rated based upon assumed achievement of all targeted
performance goals and upon the length of time within the Performance Term that
has elapsed prior to the Change in Control Date.
(4) Options. Any Options granted under the Plan shall become immediately
exercisable, and the Participant shall be entitled to exercise the Option for
the number of Shares specified as the Target Award, pro rated based on the time
that has elapsed prior to the Change in Control Date. The Participant shall have
thirty (30) days following the Change in Control Date to deliver appropriate
notice to the Company together with full payment for the Shares.
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(5) Put Right. A Participant may not exercise his or her rights described
in Article 21.9 (the Put Option) more than forty-five (45) days after the Change
in Control Date.
14.2. Special Gross-Up Payment for Excise Tax Imposed.
(a) Appointment of Independent Tax Consultant. Upon a Change In Control,
the Company shall appoint an independent tax consultant (the "ITC") who shall be
a lawyer, certified public accountant or a compensation consultant with
expertise in the area of executive compensation tax law, and whose fees and
disbursements shall be paid by the Company.
(b) Request for Gross-Up Payment. Upon a Change in Control, each
Participant who believes that he or she might be required to pay any Code
(S)4999 excise tax shall be entitled to request the calculation and payment of a
Gross-Up Payment (as defined below); provided, however, that any Participant
requesting the calculation and payment of a Gross-Up Payment must provide the
ITC with all information necessary for the ITC to determine the proper amount of
Gross-Up Payment which should be made to the Participant, and must agree to the
release of such information by the Company to the ITC.
(c) Calculations by ITC. The ITC shall, with respect to each Participant
making a request for the calculation and payment of a Gross-Up Payment (a
"Requesting Participant"), make a determination as to whether (1) the amounts
paid to such Participant under Awards issued under this Plan and (2) other
payments otherwise paid to such Participant, which constitute "parachute
payments" (as defined in Code (S)280G) (together "Parachute Payments") would be
subject to the Code (S)4999 excise tax. If the ITC determines that the Parachute
Payments to a Requesting Participant would be subject to the Code (S)4999 excise
tax, then that Participant shall receive an additional lump sum cash payment
(the "Gross-Up Payment") in an amount such that after payment by the Requesting
Participant of all federal and state taxes imposed upon the Gross-Up Payment,
the Requesting Participant retains from the Gross-Up Payment an amount equal to
the Code (S)4999 excise tax imposed upon the Parachute Payments.
(d) IRS Assessments. If the ITC determines that no Code (S)4999 excise
tax is payable by a Requesting Participant, the ITC shall provide the Requesting
Participant with a written opinion that the Requesting Participant has
substantial authority not to report any Code (S)4999 excise tax due on the
Requesting Participant's income tax returns. A Requesting Participant shall
notify the Company in writing within 15 days of any claim by the Internal
Revenue Service ("IRS") that, if successful, would require the payment by the
Company of a Gross-Up Payment. If the Requesting Participant is subsequently
required to make a payment of any Code (S)4999 excise tax by the IRS, then the
Company shall make a payment (the "Gross-Up Underpayment") to the Requesting
Participant equal to the amount assessed as a Code (S)4999 excise tax by the
IRS; provided, however, the Company may, in lieu of making such Gross-Up
Underpayment to the Requesting Participant, notify the Requesting Participant in
writing that the Requesting Participant contest the IRS claim, in which case the
Requesting Participant and the Company shall cooperate, and the Company shall
bear all costs and expenses (including payment of any resulting Code (S)4999
excise tax ultimately determined to be due, additional interest and penalties)
incurred in connection with contesting the IRS claim.
14.3. Termination, Amendment, and Modifications of Change-in-Control
Provisions. Notwithstanding any other provision of this Plan or any Award
Agreement provision to the contrary, the provisions of this Article 14 may not
be terminated, amended, or modified on or after the date of a Change in Control
in any manner that adversely affects any prior Award without the written consent
of the Participant; provided, however, that the Committee shall retain the power
to amend any provision of the Plan to comply with changes in the Code, the
Exchange Act or other applicable law or stock exchange rule after the date of a
Change in Control and further provided that the Committee may terminate, amend,
or modify this Article 14 and Section 2.6 at any time prior to the date of a
Change in Control.
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Article 15
Amendment, Modification, and Termination
15.1. Amendment, Modification, and Termination. Subject to the terms of
the Plan, the Committee may at any time, alter, amend, suspend or terminate the
Plan in whole or in part.
15.2. Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. Subject to Article 14 and to this Article 15, the
Committee may make adjustments in the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4.2) affecting the Company
or the financial statements of the Company, or in the event of changes in
applicable laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be granted under
the Plan; provided that, unless the Committee determines otherwise at the time
such adjustment is considered, no adjustment shall be made if it would be
inconsistent with the requirements of Code (S)162(m), as from time to time
amended, to the extent the Award is intended to satisfy the Performance-Based
Exception.
15.3. Awards Previously Granted. Notwithstanding any other provision of
the Plan to the contrary, no termination, amendment, or modification of the Plan
shall adversely affect in any material way, any Award previously granted under
the Plan, without the written consent of the Participant holding such Award.
15.4. Compliance with Code (S)162(m). The Committee shall have full and
absolute discretion to determine whether an Award granted under this Plan is
intended to comply with the requirements of Code (S)162(m) and the regulations
thereunder. In addition, in the event that changes are made to Code (S)162(m)
to permit greater flexibility with respect to any Award under the Plan, the
Committee may make any adjustments it deems appropriate.
Article 16
Withholding
16.1. Tax Withholding. The Company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company as a
condition precedent for the fulfillment of any Award, an amount sufficient to
satisfy all taxes (whether domestic or foreign), required by law or regulation
to be withheld with respect to any taxable event arising as a result of this
Plan, as it relates to the particular Participant.
16.2. Share Withholding. Whenever Shares are to be issued or cash paid to
a Participant upon the exercise of an Option, the Company shall have the right
to require the Participant to remit to the Company, as a condition of exercise
of the Option, an amount sufficient to satisfy federal, state and local
withholding tax requirements at the time of exercise. However, notwithstanding
the foregoing, to the extent that a Participant is an Insider, satisfaction of
the withholding tax requirements, by having the Company withhold Shares, may
only be made to the extent that such withholding of Shares (1) has met the
requirements of an exemption under Rule 16b-3 of the General Rules and
Regulations of the Exchange Act, or (2) is a subsequent transaction, the terms
of which were provided for in a transaction initially meeting the requirements
of an exemption under Rule 16b-3 of the General Rules and Regulations of the
Exchange Act. Unless the Award Agreement provides otherwise, the withholding of
Shares to satisfy federal, state and local withholding tax requirements shall be
a subsequent transaction approved by the original grant of an Award. Shares
withheld by the Company for taxes for any Award under this Plan shall be limited
to the minimum number sufficient to satisfy federal, state and local tax
withholding requirements at the time of exercise.
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Article 17
Indemnification
Each person who is or shall have been a member of the Committee, or of the
Board, or an officer delegated the administrative duties of the Board or
Committee, shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him or her in connection with or resulting from any
claim, action, suit, or proceeding to which he or she may be a party or in which
he or she may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him or her in
settlement there of, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against him
or her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company's Bye-laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
Article 18
Successors
All obligations of the Company under the Plan in respect to Awards granted
under this Plan shall be binding on any successor to the Company.
Article 19
Loss of Bermuda Work Permit
If a Participant's Bermuda work permit is not extended by a decision of the
Bermuda Department of Immigration, unless otherwise specifically prohibited
under applicable laws or by the rules and regulations of any governmental
agencies or national securities exchanges, or otherwise agreed by the Company
and the Participant:
(1) SARs. Any SARs granted to the Participant under the Plan shall become
immediately exercisable and, within thirty (30) days following the effective
date of notice of the non-renewal of the Bermuda work permit (the "Relevant
Date"), the Participant shall, upon exercise, be paid as follows:
(a) If the Relevant Date occurs within one year following the date of
grant of the SAR, the Participant shall be paid the greater of (i) the
Defined Amount, or (ii) the Target Amount upon which the award was
based pro rated as to the time that has elapsed prior to the Relevant
Date.
(b) If the Relevant Date occurs later than one year following the date of
grant of the SAR, the Participant shall be paid the Defined Amount.
The Defined Amount shall equal (a) multiplied by (b) where (a) and (b)
equal the following:
(a) (i) The Fair Value of a Share on the date of exercise; less
(ii) The grant price per Share; plus
(iii) Paid and declared dividends per Share of common stock underlying
the SAR from the beginning of the grant date to the date the SAR
is exercised;
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(b) The number of Shares with respect to which the SAR is exercised.
(2) Restricted Stock (Non-performance based). Any restriction periods and
restrictions imposed on Shares of Restricted Stock based on continued service
and/or employment shall lapse and, within thirty (30) days following the
Relevant Date, the Participant shall receive the number of Shares specified as
the Target Award, pro rated based on the time that has elapsed under the Award
Agreement prior to the Relevant Date.
(3) Restricted Stock (Performance based) and Performance Units/Shares.
Performance-based Restricted Stock and Performance Units/Shares shall vest as of
the Relevant Date, and within thirty (30) days following the Relevant Date, the
Participant shall be paid the Target Award (in cash or Shares, as the case may
be) pro rated based upon an assumed achievement of all targeted performance
goals and upon the length of time within the Performance Term that has elapsed
prior to the Relevant Date.
(4) Options. Any Options granted under the Plan shall become immediately
exercisable, and the Participant is entitled to exercise the Option for the
number of Shares specified as the Target Award, pro rated based on the time
that has elapsed under the Award Agreement prior to the Relevant Date. The
Participant shall have thirty (30) days following the Relevant Date to deliver
appropriate notice to the Company together with full payment for the Shares.
(5) Put Right. A Participant may not exercise his or her rights described
in Article 21.9 (the Put Option) more than forty-five (45) days after the
Relevant Date.
Article 20
Retirement, Death, Disability or Termination For Cause
20.1 Retirement. Unless otherwise indicated in the Award Agreement, if a
Participant retires, all Awards shall vest and any performance-based or length
of service or employment based restrictions shall lapse. Any Option or SAR
shall be exercisable for the lesser of three (3) years or according to the
original term in the Award Agreement. If the Award is an Incentive Stock
Option, the Option must be exercised within ninety (90) days of Retirement in
order for the Option to continue to be treated as an Incentive Stock Option.
20.2 Disability. The rights under this Plan shall be exercisable only by
a Participant during his lifetime; provided, however, that in the event the
Participant is incapacitated and unable to exercise his or her rights, the
Participant's legal representative, or other representative whom the Committee
deems appropriate shall be permitted to exercise the rights under the Plan. The
determination of incapacity of a Participant and the determination of the
appropriate representative of the Participant shall be determined by the
Committee.
Unless otherwise indicated in the Award Agreement, if a Participant becomes
disabled, all Awards shall vest and any performance-based or length of service
or employment based restrictions shall lapse. Any Option or SAR shall be
exercisable for the lesser of three (3) years or according to the original term
in the Award Agreement. If the Award is an Incentive Stock Option, the Option
must be exercised within one (1) year of disability in order for the Option to
continue to be treated as an Incentive Stock Option.
Restricted Stock (Performance Based) and Performance Units/Shares. Upon
vesting of any Performance-based Restricted Stock and/or Performance
Units/Shares, the Participant's legal representative shall be paid the Target
Award (in cash or Shares, as the case may be) pro rated based upon assumed
achievement of all targeted performance goals and upon the length of time within
the Performance Term that has elapsed prior to the date of disability.
20.3 Death. In the event of the death of a Participant, any rights of a
Participant under this Plan shall pass in accordance with the Participant's will
or by applicable laws of descent and distribution. Unless otherwise
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indicated in the Award Agreement, if a Participant dies, all Award(s) shall vest
and any performance-based or length of service or employment based restrictions
shall lapse. Any Option or SAR shall be exercisable for the lesser of three (3)
years or according to the original term in the Award Agreement.
Restricted Stock (Performance Based) and Performance Units/Shares. Upon
vesting of any Performance-based Restricted Stock and/or Performance
Units/Shares, the Participant's legal representative shall be paid the Target
Award (in cash or Shares, as the case may be) pro rated based upon assumed
achievement of all targeted performance goals and upon the length of time within
the Performance Term that has elapsed prior to the date of death.
20.4 Termination For Cause. In the event a Participant's employment or
agreement for services is terminated For Cause prior to the vesting of any
Award, all such Awards shall terminate simultaneous with the termination of
employment and the Participant shall have no right to receive any such Award.
Awards fully vested at the time of termination must be exercised within 30 days
of termination. Further, the Participant shall not be permitted to put Shares
to the Company as described in Article 21.9 (the Put Option). The Participant
will, however, retain all rights of resale available to shareowners generally.
Article 21
Miscellaneous
21.1. Number. Except where otherwise indicated by the context, the plural
shall include the singular and the singular shall include the plural.
21.2. Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the Plan shall be construed and enforced as
if the illegal or invalid provision(s) had not been included.
21.3. Requirements of Law. The granting of Awards and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
21.4. Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions or Rule
16b-3(b)(3) of the General Rules and Regulations of the Exchange Act or its
successors. To the extent any provision of the Plan or action by the Committee
fails to so comply, it shall be deemed null and void, to the extent permitted by
law and deemed advisable by the Committee.
21.5. Governing Law. The Plan, and all Award Agreements, shall be
construed in accordance with and governed by the laws of the Bermuda.
21.6. Plan Document Controls. In the event of any conflict between the
provisions of an Award Agreement, Plan Brochures and the Plan, the Plan shall
control, and the conflicting provisions of the Award Agreement and Plan Brochure
shall be null and void.
21.7. Unfunded Arrangement. The Plan shall not be funded, and except for
reserving a sufficient number of authorized shares to the extent required by law
to meet the requirements of the Plan, the Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to ensure the payment of any grant under the Plan.
21.8 Awards Granted in Substitution. Notwithstanding any contrary
provision, in the event the Company engages in a recapitalization,
reorganization, merger, consolidation, combination, exchange of shares, spin-
off, acquisition or other business transaction with another organization, the
Committee, in its absolute discretion may grant Awards under the Plan in
substitution and cancellation of options, stock appreciation rights,
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restricted stock, performance shares or performance Shares awarded to an
individual by such other organization. Awards made under this Section in
substitution for awards canceled as a result of such business transaction may
have an Option Price or grant price less than one hundred percent (100%) of the
Fair Value of a Share on the date such award is granted.
21.9 Put Option. A Participant in the Plan shall have the right to
require the Company to purchase all or part of the Shares then held by the
Participant at the Fair Value of the Shares, in accordance with the following
terms and conditions:
(a) Ability to Exercise Put Option. Except as provided in subsections (e)
and (f) below, the right to require the Company to purchase Shares may only be
exercised by the Participant.
(b) Price Paid by Company. The purchase price per Share paid for any
Shares put to the Company shall equal the Fair Value of a Share on the date of
the sale of the Shares to the Company multiplied by the number of Shares being
purchased.
(c) Form of Payment by Company. Payments by the Company shall be made in
a single lump sum cash (or check) payment and shall be paid on, or within thirty
(30) days after, the date the Shares are transferred to the Company.
(d) Procedures for Exercise. A Participant shall exercise his or her
rights under this Section by filing with the Company a written request stating
the number of Shares that the Participant wishes to put to the Company. The
Committee will consider the application at its next regularly scheduled meeting,
or at an early time determined by the Committee. If the Committee approves the
application, the Company will contact the Participant and the parties shall
arrange for the execution of all documents that the Company requires for the
transfer of the Shares and payment of the purchase price.
(e) Status of Employment
(i) Current Employees. Current Employees may exercise the put right
at any time, subject to the approval of the Committee.
(ii) Loss of Work Permit or Termination For Cause. If a
Participant's employment is terminated because of a loss of Bermuda work
permit, or For Cause, Articles 19 and 20 shall apply.
(iii) Retirement. If a Participant's employment terminates because of
retirement, the following shall apply:
(a) For Shares owned outright (i.e. not subject to any restrictions
under Articles 6, 8 or 9): the Participant has forty-five (45) days to
request that the Company purchase these Shares.
(b) Restricted Stock and Performance Shares that have not yet vested:
the Participant has forty-five (45) days from the date of exercise of
the grant and/or receipt of these Shares to request that the Company
purchase these Shares.
(iv) Voluntary Departure or termination without cause. If the
Participant voluntarily terminates his or her employment with the Company,
or is terminated without cause, he or she has forty-five (45) days to
request that the Company purchase his or her Shares. The Participant's
Award Agreement shall state the extent to which the Participant may
exercise the put right relating to any Stock Options, Restricted Stock
Awards, or Performance Shares that have not vested at the time of
termination of employment.
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If the Participant makes a request that the Company purchase the shares
within the required 45 days, then the Company shall purchase the shares.
If, within the required 45 days, the Participant fails to request that the
Company purchase the shares, the Participant looses his or her right to
sell the shares to the Company under the Plan (the Participant will retain
all rights of resale available to shareowners generally).
(v) Death or Disability. If a Participant's employment terminates
because of death or disability of the Participant, the following shall
apply:
(a) For Shares owned outright (i.e. not subject to any restrictions
under Articles 6, 8 or 9): the Participant's legal representative has
one (1) year from the date of death or disability to request that the
Company purchase these Shares.
(b) Restricted Stock and Performance Shares that have not yet vested:
the Participant's legal representative has one (1) year from the date
of exercise of the grant and/or receipt of these Shares to request
that the Company purchase these Shares.
If the Participant's legal representative makes a request that the Company
purchase the shares within the required one (1) year, then the Company
shall purchase the shares. If, within the required year, the Participant's
legal representative fails to request that the Company purchase the shares,
the Participant's legal representative looses his or her right to sell the
shares to the Company under the Plan (the Participant's legal
representative will retain all rights of resale available to shareowners
generally).
(f) Limitations. Only Participant's under the Plan shall be permitted to
exercise any rights under this subsection.
The put right may not be exercised as to any Shares that have been held by
the Participant for more than five (5) years.
Notwithstanding anything in this Section to the contrary, no Participant
may exercise his or her rights under this Section to the extent that applicable
laws or regulations prohibit such rights or exercise, or to the extent that the
Company is prohibited by applicable laws or regulations from effecting the
purchase. A Participant may not sell or grant his or her put option to any other
person, except in the event of the death or disability of a Participant, in
which case the legal representative of the Participant's estate shall be
permitted to exercise all rights under this subsection as described below.
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