| UNITED STATES | |
| SECURITIES AND EXCHANGE COMMISSION | |
| Washington, D.C. 20549 | |
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2 Front Street
Hamilton HM 11
Bermuda
TO BE HELD MAY 5, 2008
1. | To elect four Class 2 directors of Max Capital to serve until the annual general meeting of the shareholders of Max Capital in 2011. |
2. | To authorize the election of one Class 2 director of Max Bermuda Ltd., a wholly-owned subsidiary of Max Capital, which we refer to as Max Bermuda, to serve until the annual general meeting of the shareholders of Max Bermuda in 2011. |
3. | To ratify the appointment of KPMG, Hamilton, Bermuda, as Max Capital’s independent auditors for 2008. |
4. | To authorize the ratification of the appointment of KPMG, Hamilton, Bermuda, as Max Bermuda’s independent auditors for 2008. |
5. | To approve Max Capital’s 2008 Employee Stock Purchase Plans, which we refer to as the 2008 ESPPs. |
6. | To approve an amendment to Max Capital’s bye-laws to permit for the holding by Max Capital of treasury shares. |
7. | To approve the Max Capital 2008 Stock Incentive Plan, which we refer to as the 2008 Incentive Plan. |
8. | To act upon such other matters as may properly come before the Meeting or any adjournments thereof. |
Chairman of the Board
March 19, 2008
Hamilton, Bermuda
(a Bermuda company)
2 Front Street
Hamilton HM 11
Bermuda
Reference | Entity’s legal name | |||||
---|---|---|---|---|---|---|
Max Bermuda | Max Bermuda Ltd. | |||||
Max Europe | Collectively: Max Europe Holdings Limited, Max Re Europe Limited and Max Insurance Europe Limited | |||||
Max Europe Holdings | Max Europe Holdings Limited | |||||
Max Re Europe | Max Re Europe Limited | |||||
Max Insurance Europe | Max Insurance Europe Limited | |||||
Max Diversified | Max Diversified Strategies Ltd. | |||||
Max Managers | Max Managers Ltd. | |||||
Max USA | Max USA Holdings Ltd. | |||||
Max Specialty | Max Specialty Insurance Company | |||||
Max Specialty Services | Max Specialty Insurance Services Ltd. | |||||
Max California | Max California Insurance Services Ltd. | |||||
Max Managers USA | Max Managers USA Ltd. | |||||
MCS Ireland | Max Capital Services Limited | |||||
MCS BDA | Max Capital Services BDA Ltd. | |||||
MCS USA | Max Capital Services USA LLC |
ELECTION OF DIRECTORS OF MAX CAPITAL
was promoted to Executive Vice President in February 2001 and served as our Chief Risk Officer until February 2007. Mr. Minton has served as a director of Max Diversified since October 2001; a director of Max Europe Holdings, Max Re Europe, Max Insurance Europe, Max Managers, Max USA and Grand Central Re Limited, which we refer to as Grand Central Re, since 2006; and a director of Max Specialty, Max Specialty Services, Max California, Max Managers USA, MCS Ireland, MCS BDA and MCS USA since 2007. Mr. Minton has also served as Executive Vice President and Treasurer of Max USA since 2006. From 1999 to 2000, Mr. Minton was Managing Director and Head of Fixed Income Research for Scudder Kemper Investments. From 1996 to 1999, Mr. Minton was a Senior Vice President of Investments at General Reinsurance Company. From 1991 to 1996, Mr. Minton held the position of Principal and Head of Fixed Income Strategy at Morgan Stanley & Co. Incorporated. From 1984 to 1991, Mr. Minton was Vice President and Portfolio Manager at CMB Investment Counselors. Prior to joining CMB Investment Counselors, Mr. Minton was a tax planner in the Tax Department of Ernst & Whinney between 1981 and 1984.
of XL America, Inc. From 1985 until its acquisition in 1999 by XL Capital, Mr. Kronenberg was owner, Chief Executive Officer and President of ECS, Inc., a company specializing in integrated environmental risk management solutions. Mr. Kronenberg also established ECS International, a London-based subsidiary and first environmental insurance underwriter in Europe. From 1975 to 1985, Mr. Kronenberg held several casualty-oriented underwriting positions with American International Group, concluding as the officer in charge of American International Group’s program unit. Mr. Kronenberg also serves on the board of directors of each of Camphill Soltane and the Stroud Water Research Center, both non-profit organizations. Mr. Kronenberg holds the designations of Certified Property and Casualty Underwriter (CPCU) and Certified Insurance Counselor (CIC).
President and Controller, and also served as Senior Vice President and Treasurer. Mr. Tees also served as corporate secretary of Max Capital, Max Bermuda, Max Managers and Max Diversified from 2000 to 2007. From 1991 to 2000, Mr. Tees was employed by Stockton Holdings Limited, a reinsurance business pursuing a diversified, global investment strategy and served in several roles, including Vice President and Controller prior to joining Max Capital. Mr. Tees, a CPA, began his career in 1980 at the public accounting firm of Coopers & Lybrand, where he started working as a staff accountant and advanced to senior audit manager. Mr. Tees is a member of both the American and Pennsylvania Institute of Certified Public Accountants.
Director | Audit and Risk Management Committee | Compensation Committee | Executive Committee | Finance and Investment Committee | Nominating and Corporate Governance Committee | |||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Zack H. Bacon III | X | X | ||||||||||||||||||||
W. Marston Becker | X(Chairman) | X | ||||||||||||||||||||
Gordon F. Cheesbrough | X (Chairman) | |||||||||||||||||||||
K. Bruce Connell | X | |||||||||||||||||||||
William H. Heyman* | ||||||||||||||||||||||
Willis T. King, Jr. | X (Chairman) | X | ||||||||||||||||||||
William Kronenberg III | X | X | ||||||||||||||||||||
Peter A. Minton | X | |||||||||||||||||||||
Steven M. Skala | X | X | ||||||||||||||||||||
Mario P. Torsiello | X (Chairman) | X | X | |||||||||||||||||||
James L. Zech | X | X (Chairman) | ||||||||||||||||||||
James H. MacNaughton** |
* | Mr. Heyman is not seeking re-election at the Meeting. |
** | Mr. MacNaughton, if elected, is expected to be a member of the ARMC. |
Board of Directors | 4 | |||||
Audit and Risk Management Committee | 4 | |||||
Compensation Committee | 4 | |||||
Executive Committee | 0 | |||||
Finance and Investment Committee | 4 | |||||
Nominating and Corporate Governance Committee | 3 |
Name and Address of Beneficial Owner (1) | | Number of Common Shares | | Percent of Class (2) | ||||||
---|---|---|---|---|---|---|---|---|---|---|
Louis Moore Bacon Moore Holdings, LLC (“Moore Holdings”) 1251 Avenue of the Americas, 53rd Floor New York, NY 10020 USA | 11,078,119 | (3) | 18.1 | % | ||||||
Entities affiliated with Moore Capital Management, LLC (other than Moore Holdings, LLC) 1251 Avenue of the Americas, 53rd Floor New York, NY 10020 USA | 2,333,334 | (4) | 4.1 | % | ||||||
T. Rowe Price Associates, Inc. (“Price Associates”) 100 East Pratt Street Baltimore, MD 21202 USA | 3,118,300 | (5) | 5.5 | % | ||||||
W. Marston Becker | 304,333 | (6) | * | |||||||
Angelo M. Guagliano | 198,800 | (7) | * | |||||||
Keith S. Hynes | 532,828 | (8) | * | |||||||
Peter A. Minton | 456,185 | (9) | * | |||||||
Joseph W. Roberts | 36,090 | (10) | * | |||||||
Stephen J. Vaccaro, Jr. | 0 | (11) | * | |||||||
Zack H. Bacon III | 202,000 | (12) | * | |||||||
Gordon F. Cheesbrough | 2,000 | (13) | * | |||||||
K. Bruce Connell | 4,000 | (14) | * | |||||||
William H. Heyman | 18,120 | (15) | * |
Name and Address of Beneficial Owner (1) | | Number of Common Shares | | Percent of Class (2) | ||||||
---|---|---|---|---|---|---|---|---|---|---|
Willis T. King, Jr. | 60,000 | (16) | * | |||||||
William Kronenberg III | 94,333 | (17) | * | |||||||
James H. MacNaughton | 0 | * | ||||||||
Steven M. Skala | 46,666 | (18) | * | |||||||
Mario P. Torsiello | 60,000 | (19) | * | |||||||
James L. Zech | 363,647 | (20) | * | |||||||
All directors, nominees and executive officers, as a group (18 persons) | 2,539,867 | (21) | 4.4 | % |
* | Less than 1% |
(1) | Unless otherwise stated, the address for each beneficial owner is c/o Max Capital Group Ltd., Max House, 2 Front Street, Hamilton HM 11, Bermuda. |
(2) | Computed on the basis of (i) 56,841,221 shares outstanding as of February 29, 2008, plus (ii) options exercisable within 60 days thereafter and (iii) warrants exercisable within 60 days thereafter. Our bye-laws reduce the total voting power of any U.S. shareholder owning, directly or indirectly, beneficially or otherwise, as described in our bye-laws, 9.5% or more of the common shares to less than 9.5% of the total voting power of our capital stock unless otherwise waived at the discretion of the board of directors. As a result of the application of our bye-laws, the combined voting power of Moore Holdings, together with its affiliates, Moore Global Investments, Ltd. and Remington Investment Strategies, L.P., which we refer to collectively as the Moore Group, is now limited to less than 9.5%, which results in the increase of the voting power of other shareholders. Pursuant to our bye-laws, the voting power of other shareholders, in aggregate, is increased by the same number of votes held by the Moore Group that are subject to the voting limitation. Such increase applies to each of the other shareholders in proportion to its voting power as determined on any applicable record date, provided that such increase will be limited to the extent necessary to avoid causing any U.S. shareholder to have 9.5% or more voting power. Our bye-laws also limit the number of our common shares that may be owned by any person to less than 9.5% of our total common shares outstanding, unless otherwise waived by the board of directors. Our board of directors has waived this ownership limitation with respect to the Moore Group. |
(3) | Includes warrants to acquire 4,411,452 common shares beneficially owned by Moore Holdings. Does not include 1,666,667 common shares beneficially owned by Moore Global Investments, Ltd., which we refer to as MGI, or 666,667 common shares beneficially owned by Remington Investment Strategies, L.P., which we refer to as Remington. Does not include 235,333 common shares owned by family members of Mr. Louis Bacon including 200,000 common shares owned by Mr. Zack Bacon, his brother. Mr. Louis Bacon, as the controlling member of Moore Holdings, may be deemed to beneficially own the common shares and warrants to acquire common shares beneficially owned by Moore Holdings. |
(4) | Consists of 1,666,667 common shares held of record or beneficially by MGI and 666,667 common shares held of record or beneficially by Remington. Moore Capital exercises voting and investment power with respect to portfolio assets held for the account of MGI. Moore Capital Advisors, L.L.C. is the sole general partner of Remington. Mr. Louis Bacon is the majority shareholder of Moore Capital and is the majority equity holder of Moore Capital Advisors, L.L.C. As a result, Mr. Louis Bacon may be deemed to be the beneficial owner of the aggregate shares held of record or beneficially by MGI and Remington. Does not include 6,666,667 common shares or warrants to acquire 4,411,452 common shares beneficially owned by Moore Holdings as described in footnote 3. |
(5) | Price Associates’ beneficial ownership of our common shares is based solely on a Form 13G filed by Price Associates on February 12, 2008. These common shares are owned by various individual and institutional investors including T. Rowe Price Mutual Funds, which Price Associates serves as investment advisor with power to direct investments and/or sole power to vote the common shares. For purposes of the reporting requirements of the Exchange Act, Price Associates is deemed to be a beneficial owner of these common shares, however, Price Associates expressly disclaims that it is, in fact, the beneficial owner of such common shares. |
(6) | Includes 73,667 common shares owned by Mr. Becker and 2,000 common shares owned by the Becker Family Limited Partnership, of which Mr. Becker is a controlling partner. Includes (i) 226,666 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (ii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include (i) 108,334 common shares issuable upon the exercise of options under our 2000 Incentive Plan that are not currently exercisable and (ii) 105,826 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(7) | Includes 82,763 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable. Does not include 138,114 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(8) | Mr. Hynes was an Executive Vice President and Chief Financial Officer of the company until his resignation effective March 31, 2007. Includes (i) 105,819 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (ii) 14,137 restricted common shares that vest within 60 days following February 29, 2008. Does not include 5,863 restricted common shares issued under our 2000 Incentive Plan that will be forfeited on March 31, 2008. |
(9) | Includes (i) warrants that are currently exercisable to acquire 116,652 common shares and (ii) 110,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable. Does not include 91,182 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(10) | Includes 12,090 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable. Does not include 80,556 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(11) | Does not include (i) 300,000 common shares issuable upon the exercise of options under our 2000 Incentive Plan that are not currently exercisable and (ii) 100,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(12) | Includes 2,000 restricted common shares that vest within 60 days following February 29, 2008. 200,000 common shares beneficially owned by Mr. Zack Bacon have been pledged to HSBC Bank USA pursuant to that certain Pledge and Hypothecation Agreement dated March 12, 2002. Mr. Zack Bacon disclaims any beneficial interest in the common shares beneficially owned by Mr. Louis Bacon, Moore Holdings and entities affiliated with Moore Capital. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(13) | Consists of 2,000 common shares held by PSV Investments Ltd., an entity controlled by Mr. Cheesbrough. Does not include 2,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting restrictions. |
(14) | Consists of 4,000 shares owned by Mr. Connell’s wife. Does not include 2,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting restrictions. |
(15) | Includes (i) 2,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (ii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. Does not include 1,058,833 common shares beneficially owned by a subsidiary of The Travelers Companies, Inc., as to which Mr. Heyman, as an affiliate thereof, disclaims any beneficial ownership. |
(16) | Includes (i) 18,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (ii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting restrictions. |
(17) | Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting restrictions. |
(18) | Includes (i) 26,666 common shares beneficially owned by Stockmoor Pty. Ltd., as to which Mr. Skala has a beneficial interest as the sole director thereof and as a beneficiary of a trust, the trustee of which is a shareholder in the ultimate holding company of Stockmoor Pty. Ltd., (ii) 18,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (iii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(19) | Includes (i) 18,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable and (ii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(20) | Includes (i) 18,000 common shares issuable upon the exercise of options issued under our 2000 Incentive Plan that are currently exercisable, (ii) 188,538 shares held in trust for the benefit of family members and (iii) 2,000 restricted common shares that vest within 60 days following February 29, 2008. Does not include 4,000 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
(21) | Includes (i) warrants that are currently exercisable to acquire 168,652 common shares, (ii) options to acquire 660,618 common shares that are currently exercisable and (iii) 28,137 restricted common shares that vest within 60 days following February 29, 2008. Does not include (A) options to acquire 408,334 common shares that are not currently exercisable and (B) 617,770 restricted common shares issued under our 2000 Incentive Plan that remain subject to vesting provisions. |
• | base salary; |
• | annual cash bonuses; and |
• | equity awards under our 2000 Incentive Plan (which, subject to shareholder approval, will be replaced with the 2008 Incentive Plan after the Meeting). |
• | individual responsibilities and performance expectations; |
• | the scope of the individual’s position; |
• | our ability to replace the individual based on the limited number of qualified candidates available in or willing to relocate to Bermuda (if applicable); and |
• | market salary rates. |
Performance Measure | | Target Performance | | Estimated Results | ||||||
---|---|---|---|---|---|---|---|---|---|---|
Return on Equity | 15.6 | 20.9 | ||||||||
Combined Ratio | 93.3 | 88.3 | ||||||||
Expense Ratio | 11.9 | 13.2 |
in the amount that was used to pay the exercise price of the original award. Our Compensation Committee has evaluated the costs and benefits to the company of this reload feature and does not intend to include reload provisions in future option awards (the 2008 Incentive Plan discussed below will not permit the granting of options with a reload feature). In 2007, Mr. Guagliano received a grant of options to acquire 11,783 of our common shares pursuant to this reload feature. Other than Mr. Guagliano, no named executive officer received an option grant pursuant to this feature in 2007.
• | a cash payment based on a multiple of the named executive officer’s base salary set forth in his employment agreement or actual base salary at the time of termination; |
• | a pro-rated target bonus for the year of termination (as determined in good faith by our Compensation Committee based on the relative achievement of performance targets through the termination date); and |
• | in the case of Messrs. Minton, Roberts and Guagliano, a cash payment reflecting a multiple of the named executive officer’s last paid bonus; |
• | in the case of Mr. Becker, a cash payment reflecting a multiple of Mr. Becker’s last paid bonus; and |
• | accelerated vesting of equity grants. |
Mr. Guagliano and (iii) Mr. Vaccaro are materially similar, the definitions in each of Messrs. Guagliano’s and Vaccaro’s agreement reflect employment by Max Bermuda and Max Specialty Services, respectively. As such, while there is substantial overlap among the definitions, Mr. Guagliano and Vaccaro’s definitions contain references to Max Bermuda or Max Specialty Services, as applicable, for purposes of describing occurrences that would constitute a change in control under their agreements.
(For Fiscal Year 2007)
William Kronenberg III
Steven M. Skala
Mario P. Torsiello
Name and Principal Position | | Year | | Salary ($) | | Bonus ($)(1) | | Share Awards ($)(2) | | Option Awards ($)(3) | | Non-Equity Incentive Plan Compensation ($) | | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | | All Other Compensation ($)(4) | | Total ($) | ||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
W. Marston Becker, Chairman and Chief Executive Officer | 2007 | 750,000 | 1,300,000 | 916,808 | 523,356 | 0 | 0 | 406,693 | (5) | 3,896,857 | ||||||||||||||||||||||||||||
2006 | 102,404 | (6) | 185,000 | 828,541 | (7) | 839,539 | (8) | 0 | 0 | 111,573 | (9) | 2,067,057 | ||||||||||||||||||||||||||
Joseph W. Roberts, Executive Vice President and Chief Financial Officer | 2007 | 334,042 | 335,000 | 548,624 | 0 | 0 | 0 | 168,077 | (10) | 1,385,743 | ||||||||||||||||||||||||||||
2006 | 240,000 | 325,000 | 277,378 | 34,471 | 0 | 0 | 163,274 | (11) | 1,040,123 | |||||||||||||||||||||||||||||
Peter A. Minton, Executive Vice President and Chief Operating Officer | 2007 | 500,000 | 700,000 | 896,287 | 0 | 0 | 0 | 361,823 | (12) | 2,458,110 | ||||||||||||||||||||||||||||
2006 | 475,000 | 500,000 | 1,277,121 | 0 | 0 | 0 | 309,944 | (13) | 2,562,065 | |||||||||||||||||||||||||||||
Angelo M. Guagliano, President and Chief Executive Officer of Max Bermuda | 2007 | 485,853 | 625,000 | 970,234 | 78,239 | 0 | 0 | 350,000 | (14) | 2,509,326 | ||||||||||||||||||||||||||||
2006 | 408,333 | 625,000 | 646,810 | 131,219 | 0 | 0 | 294,388 | (15) | 2,105,750 | |||||||||||||||||||||||||||||
Stephen J. Vaccaro, Jr., | 2007 | 500,000 | 425,000 | (16) | 808,667 | 276,938 | 0 | 0 | 15,327 | 2,025,932 | ||||||||||||||||||||||||||||
President and Chief Executive Officer of Max Specialty | ||||||||||||||||||||||||||||||||||||||
Keith S. Hynes, Former Executive Vice President and Chief Financial Officer (17) | 2007 | 106,250 | (18) | 0 | 297,275 | 0 | 0 | 0 | 983,031 | (19) | 1,386,556 | |||||||||||||||||||||||||||
2006 | 425,000 | 50,000 | 509,769 | 0 | 0 | 0 | 292,115 | (20) | 1,276,884 |
(1) | In addition to the cash bonus reflected in this column, the named executive officers also received a portion of their 2007 and 2006 bonus in the form of restricted shares granted in 2008 and 2007, respectively. Accordingly, (i) in February 2008, 148,658 restricted shares were granted to Messrs. Becker, Roberts, Minton and Guagliano which will be expensed over a three year vesting period commencing in February 2008 and (ii) in February 2007, 88,437 restricted shares were granted to Messrs. Becker, Robert, Minton, Guagliano and Hynes which will be expensed over a three year vesting period commencing in February 2007. |
(2) | All share awards were granted under our 2000 Incentive Plan. We account for the 2000 Incentive Plan under SFAS No. 123R “Share Based Payments.” The value reported under “Share Awards” is the amount we expensed during 2007 and 2006, as applicable, for each named executive officer’s share award. All share awards, with the exception of the 100,000 restricted shares granted to Mr. Becker in December 2006, are expensed ratably over their three year vesting period and thus the amounts included in this column with respect to these officers include expenses related to share awards issued in 2004, 2005, 2006 and 2007 for shares expensed in 2007 and 2003, 2004, 2005 and 2006 for shares expensed in 2006. The 100,000 restricted share award granted in December 2006 to Mr. Becker vests 33,334 on January 1, 2007 and 33,333 on January 1, 2008 and 33,333 on January 1, 2009, subject to the attainment of performance goals. |
(3) | All stock options were granted under our 2000 Incentive Plan. We account for the 2000 Incentive Plan under SFAS No. 123R “Share Based Payments.” The value reported under “Option Awards” is the amount we expensed during 2007 and 2006, as applicable, for each named executive officer’s stock options. |
(4) | Includes perquisites for housing allowance, partial tax gross-up allowance (which we refer to as the “tax gross-up allowance”) for named executive officers who work in Bermuda and are U.S. taxpayers, car allowance, travel allowance, our contributions on behalf of the named executive officers to our defined contribution plans, financial planning and tax preparation costs, country club dues and costs related to family members accompanying named executive officers to one board of directors meeting or other business trips, as applicable. |
(5) | Includes a housing allowance of $180,000, tax gross up allowance of $91,731 and $75,000 that we contributed on behalf of Mr. Becker to our defined contribution plans. |
(6) | Reflects salary paid for the period from November 13, 2006, the date on which Mr. Becker commenced employment with us, through December 31, 2006. |
(7) | Includes the amount expensed in 2006 related to 33,334 restricted share awards granted to Mr. Becker in 2006 as part of his employment agreement and the amount expensed in 2006 related to 2,000 restricted share awards granted to Mr. Becker in 2006 and 2,000 restricted share awards granted to Mr. Becker in 2005 in his role as a director (prior to becoming an employee). |
(8) | Includes the amount expensed in 2006 related to 108,333 options granted to Mr. Becker in 2006 as part of his employment agreement and the amount expensed in 2006 related to 10,000 stock options granted in 2004 to Mr. Becker in his role as a director (prior to becoming an employee). |
(9) | Includes compensation Mr. Becker received as a director during 2006 (prior to becoming an employee) of $68,500 comprising (i) board meeting fees of $14,500, (ii) committee meeting fees of $24,000 and (iii) retainer fees of $30,000. Also includes consulting fees of $34,615. |
(10) | Includes a housing allowance of $119,167, and $33,404 that we contributed on behalf of Mr. Roberts to our defined contribution plans. |
(11) | Includes a housing allowance of $102,000 and $24,000 that we contributed on behalf of Mr. Roberts to our defined contribution plans. |
(12) | Includes a housing allowance of $120,000, tax gross up allowance of $135,530 and $50,000 that we contributed on behalf of Mr. Minton to our defined contribution plans. |
(13) | Includes a housing allowance of $120,000, tax gross up allowance of $82,866 and $47,500 that we contributed on behalf of Mr. Minton to our defined contribution plans. |
(14) | Includes a housing allowance of $120,000, tax gross up allowance of $135,530 and $48,585 that we contributed on behalf of Mr. Guagliano to our defined contribution plans. |
(15) | Includes a housing allowance of $120,000, tax gross up allowance of $82,866 and $40,833 that we contributed on behalf of Mr. Guagliano to our defined contribution plans. |
(16) | Mr. Vaccaro’s 2007 bonus was specified per the terms of his employment agreement. |
(17) | Mr. Hynes resigned his employment with us effective March 31, 2007. |
(18) | Reflects salary paid for the period January 1, 2007 through March 31, 2007, the effective date of Mr. Hynes’ resignation. |
(19) | Includes severance of $850,000 expensed in 2007, housing allowance of $30,000, tax gross up allowance of $82,191 and $10,625 that we contributed on behalf of Mr. Hynes to our defined contribution plans. |
(20) | Includes a housing allowance of $120,000, tax gross up allowance of $82,866 and $42,500 that we contributed on behalf of Mr. Hynes to our defined contribution plans. |
All other Share | All other Option Awards: | Exercise | Grant Date | ||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Estimated Future Payouts Under Non Equity Incentive Plan Awards | Estimated Future Payouts Under Equity Incentive Plan Awards | Awards: Number of Shares | Number of Shares Underlying | or Base Price of Option | Fair Value of Share and | Closing Price on the | |||||||||||||||||||||||||||||||||||||||||||||||||
Name | | Grant Date | | Approval Date | | Threshold ($) | | Target ($) | | Maximum ($) | | Threshold (#) | | Target (#) | | Maximum (#) | | or Units (#) | | Options (#) | | Awards ($/Sh)(1) | | Option Awards | | Grant Date | |||||||||||||||||||||||||||||
W. Marston Becker | 2/14/07 | 2/9/07 | 9,670 (2 | ) | 0 | 240,009 | |||||||||||||||||||||||||||||||||||||||||||||||||
Joseph W. Roberts | 2/14/07 | 2/9/07 | 48,699 (2 | ) | 0 | 1,208,709 | |||||||||||||||||||||||||||||||||||||||||||||||||
Peter A. Minton | 2/14/07 | 2/9/07 | 32,232 (2 | ) | 0 | 799,998 | |||||||||||||||||||||||||||||||||||||||||||||||||
Angelo M. Guagliano | 2/14/07 | 2/9/07 | 32,836 (2 | ) | 0 | 814,990 | |||||||||||||||||||||||||||||||||||||||||||||||||
3/5/07 | 1/13/03 | 0 | 11,783 | (3) | 24.40 | 78,239 | 24.40 | ||||||||||||||||||||||||||||||||||||||||||||||||
Stephen J. Vaccaro, Jr. (4) | — | — | 0 | 0 |
(1) | Pursuant to the terms of our 2000 Incentive Plan, the exercise price is the closing price on the day before the grant date. |
(2) | Grant made pursuant to our 2000 Incentive Plan. Award is subject to three-year cliff vesting. |
(3) | This fully vested option award resulted from the exercise of options with a reload provision. |
(4) | Mr. Vaccaro did not receive an award grant in 2007. |
Option Awards | | Share Awards | | ||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name | | Number of Shares Underlying Unexercised Options Exercisable (#) | | Number of Shares Underlying Unexercised Options Unexercisable (#) | | Equity Incentive Plan Awards: Number of Shares Underlying Unexercised Unearned Options (#) | | Option Exercise Price ($) | | Option Expiration Date | | Number of Shares or Units That Have not Vested (#) | | Market Value of Shares or Units That Have Not Vested ($)(1) | | Equity Incentive Plan Awards: Number of Unearned Shares, Units or other Rights That Have Not Vested (#) | | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) | |||||||||||||||||||||
W. Marston Becker | 10,000 | 21.95 | 4/30/14 | 13,670 (2 | ) | 382,623 | 66,666 (3 | ) | 1,865,981 | ||||||||||||||||||||||||||||||
108,334 | 216,666 (4 | ) | 24.49 | 12/8/16 | |||||||||||||||||||||||||||||||||||
Joseph W. Roberts | 7,500 | 15.05 | 5/6/12 | 72,699 (5 | ) | 2,034,845 | |||||||||||||||||||||||||||||||||
4,590 | 24.59 | 5/6/12 | |||||||||||||||||||||||||||||||||||||
Peter A. Minton | 70,000 | (6) | 15.00 | 3/31/10 | 91,182 | (7) | 2,552,184 | ||||||||||||||||||||||||||||||||
240 | (6) | 15.00 | 6/29/10 | ||||||||||||||||||||||||||||||||||||
2,245 | (6) | 16.00 | 1/1/11 | ||||||||||||||||||||||||||||||||||||
30,000 | 16.00 | 1/1/11 | |||||||||||||||||||||||||||||||||||||
4,167 | (6) | 18.00 | 5/22/11 | ||||||||||||||||||||||||||||||||||||
30,000 | 16.00 | 8/13/11 | |||||||||||||||||||||||||||||||||||||
40,000 | (6) | 16.00 | 8/17/11 | ||||||||||||||||||||||||||||||||||||
50,000 | 15.66 | 1/1/12 | |||||||||||||||||||||||||||||||||||||
Angelo M. Guagliano | 67,400 | 11.50 | 1/13/13 | 125,136 | (8) | 3,502,557 | |||||||||||||||||||||||||||||||||
3,580 | 24.41 | 1/13/13 | |||||||||||||||||||||||||||||||||||||
11,783 | 24.40 | 1/13/13 | |||||||||||||||||||||||||||||||||||||
Stephen J. Vaccaro, Jr. | 75,000 | 24.26 | 12/13/16 | 50,000 | (9) | 1,399,500 | 50,000 | (10) | 1,399,500 | ||||||||||||||||||||||||||||||
75,000 | 32.26 | 12/13/16 | |||||||||||||||||||||||||||||||||||||
75,000 | 36.26 | 12/13/16 | |||||||||||||||||||||||||||||||||||||
75,000 | 28.26 | 12/13/16 | |||||||||||||||||||||||||||||||||||||
Keith S. Hynes | 21,000 | 16.00 | 1/1/11 | 35,000 | (11) | 979,650 | |||||||||||||||||||||||||||||||||
30,000 | 16.00 | 8/13/11 | |||||||||||||||||||||||||||||||||||||
50,000 | 15.66 | 1/1/12 | |||||||||||||||||||||||||||||||||||||
4,819 | 26.56 | 1/1/11 |
(1) | Assumes stock price of $27.99, the closing price on December 31, 2007. |
(2) | 2,000 of Mr. Becker’s restricted shares will vest in April 2008, 2,000 in September 2009 and 9,670 in December 2009. |
(3) | 33,333 of Mr. Becker’s restricted shares vested in January 2008. The remainder of Mr. Becker’s shares will vest in January 2009, subject to the attainment of performance goals. |
(4) | 108,333 of Mr. Becker’s options vested in January 2008. The remainder of Mr. Becker’s options will vest in January 2009, subject to the attainment of performance goals. |
(5) | 12,000 of Mr. Roberts’ restricted shares vested in February 2008. The remainder of Mr. Roberts’ restricted shares will vest 12,000 in February 2009 and 48,699 in February 2010. |
(6) | These amounts relate to warrants outstanding. |
(7) | 32,200 of Mr. Minton’s restricted shares vested in February 2008. The remainder of Mr. Minton’s restricted shares will vest 26,750 in February 2009 and 32,232 in February 2010. |
(8) | 22,800 of Mr. Guagliano’s restricted shares vested in February 2008. The remainder of Mr. Guagliano’s restricted shares will vest 19,500 in February 2009, 50,000 in October 2009 and 32,836 in February 2010. |
(9) | All of Mr. Vaccaro’s restricted shares will vest in December 2009. |
(10) | All of Mr. Vaccaro’s restricted shares will vest in December 2009, subject to the attainment of performance goals. |
(11) | 15,000 of Mr. Hynes’ restricted shares vested in February 2008. In accordance with Mr. Hynes’ separation agreement, 14,137 restricted shares will vest on March 31, 2008 and 5,863 will be forfeited on March 31, 2008. |
Option Awards | | Share Awards | | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name | | Number of Shares Acquired on Exercise (#) | | Value Realized on Exercise ($) | | Number of Shares Acquired on Vesting (#) | | Value Realized on Vesting ($) | |||||||||||
W. Marston Becker | 0 | 0 | 0 | 0 | |||||||||||||||
Joseph W. Roberts | 0 | 0 | 12,000 | 289,440 | |||||||||||||||
Peter A. Minton | 0 | 0 | 95,000 | 2,390,900 | |||||||||||||||
Angelo M. Guagliano | 25,000 | 322,500 | 22,500 | 542,700 | |||||||||||||||
Stephen J. Vaccaro, Jr. | 0 | 0 | 0 | 0 | |||||||||||||||
Keith S. Hynes | 197,652 | (1) | 2,467,178 | (2) | 30,000 | 723,600 |
(1) | 186,652 shares relate to the exercise of warrants and 11,000 shares relate to the exercise of options. |
(2) | $2,343,538 relates to the value realized on the exercise of warrants and $123,640 relates to the value realized on the exercise of options. |
Name | | Executive Contributions in 2007 ($) | | Registrant Contributions in 2007 ($) | | Aggregate Earnings in 2007 ($) | | Aggregate Withdrawals/ Distributions ($)(1) | | Aggregate Balance at 12/31/07 ($) | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
W. Marston Becker | 17,000 | (2) | 52,500 | (3) | 1,210 | (4) | 0 | 70,710 | (5) | |||||||||||||
Joseph W. Roberts | 16,702 | (6) | 33,404 | (7) | 1,103 | (8) | 0 | 210,293 | (9) | |||||||||||||
Peter A. Minton | 268,250 | (10) | 27,500 | (11) | 136,161 | (12) | 0 | 2,677,091 | (13) | |||||||||||||
Angelo M. Guagliano | 3,793 | (14) | 26,085 | (15) | 204,161 | (16) | 0 | 2,015,281 | (17) | |||||||||||||
Stephen J. Vaccaro, Jr. (18) | 0 | 0 | 0 | 0 | 0 | |||||||||||||||||
Keith S. Hynes | 26,250 | (19) | 5,000 | (20) | 332,929 | (21) | 0 | 2,580,813 | (22) |
(1) | There were no withdrawals or distributions by any of the named executive officers in 2007. |
(2) | Reflects contributions made by Mr. Becker to our Top Hat Plan. |
(3) | Reflects amounts we contributed on behalf of Mr. Becker to our Excess Benefit Plan. |
(4) | Includes earnings of $1,057 with respect to amounts credited to our Excess Benefit Plan and $153 with respect to amounts credited to our Top Hat Plan. |
(5) | Reflects balance of $53,557 in our Excess Benefit Plan and $17,153 in our Top Hat Plan. |
(6) | Reflects contributions made by Mr. Roberts to our Bermuda Pension Plan. |
(7) | Reflects $16,702 we contributed on behalf of Mr. Roberts to our Bermuda Pension Plan and $16,702 we contributed on behalf of Mr. Roberts to the Max Bermuda Ltd. Employee Benefit Trust. |
(8) | Includes earnings of $4,772 with respect to amounts credited to our Bermuda Pension Plan and losses of $3,669 with respect to amounts credited to the Max Bermuda Ltd. Employee Benefit Trust. |
(9) | Reflects balance of $146,405 in our Bermuda Pension Plan and $63,888 in the Max Bermuda Ltd. Employee Benefit Trust. |
(10) | Reflects contributions made by Mr. Minton to our Top Hat Plan. |
(11) | Reflects contributions we made on behalf of Mr. Minton to our Excess Benefit Plan. |
(12) | Includes earnings of $2,267 with respect to amounts credited to our Excess Benefit Plan, earnings of $21,495 with respect to amounts credited to our Top Hat Plan and earnings of $112,399 with respect to amounts credited to our Deferred Compensation Plan for U.S. Citizens. |
(13) | Reflects balance of $64,178 in our Excess Benefit Plan, $519,566 in our Top Hat Plan and $2,093,347 in our Deferred Compensation Plan for U.S. Citizens. |
(14) | Reflects contributions made by Mr. Guagliano to our Top Hat Plan. |
(15) | Reflects contributions we made on behalf of Mr. Guagliano to our Excess Benefit Plan. |
(16) | Includes earnings of $1,190 with respect to amounts credited to our Excess Benefit Plan, earnings of $21,131 with respect to amounts credited to our Top Hat Plan and earnings of $181,840 with respect to amounts credited to our Deferred Compensation Plan for U.S. Citizens. |
(17) | Reflects balance of $45,720 in our Excess Benefit Plan, $351,718 in our Top Hat Plan and $1,617,843 in our Deferred Compensation Plan for U.S. Citizens. |
(18) | We do not maintain non-qualified deferred compensation plans for our employees based in the United States. |
(19) | Reflects contributions made by Mr. Hynes to our Top Hat Plan. |
(20) | Reflects amounts we contributed on behalf of Mr. Hynes to our Excess Benefit Plan. |
(21) | Includes earnings of $1,568 with respect to amounts credited to our Excess Benefit Plan, earnings of $27,101 with respect to amounts credited to our Top Hat Plan and earnings of $304,260 with respect to amounts credited to our Deferred Compensation Plan for U.S. Citizens. |
(22) | Reflects balance of $34,362 in our Excess Benefit Plan, $232,041 in our Top Hat Plan and $2,314,410 in our Deferred Compensation Plan for U.S. Citizens. |
Plan category | | Number of securities to be issued upon exercise of outstanding options, warrants and rights | | Weighted-average exercise price of outstanding options, warrants and rights | | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) | ||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Equity compensation plans approved by security holders | 2,623,922 | (1) | 20.21 | 1,057,328 | (2) | |||||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||||
Total | 2,623,922 | (1) | 20.21 | 1,057,328 | (2) |
(1) | Includes 2,185,749 common shares issuable upon the exercise of options that were outstanding under our 2000 Incentive Plan as of December 31, 2007. Also includes 438,173 common shares issuable upon the exercise of warrants granted in 1999, 2000 and 2001 to certain named executive officers and certain other employees pursuant to their respective employment agreements. The terms in the employment agreements providing for the granting of these warrants were approved by written shareholder resolution in December 1999. |
(2) | Represents the difference between the number of securities issuable under our 2000 Incentive Plan (8,000,000) and the number of securities issued under our 2000 Incentive Plan as of December 31, 2007, 6,942,672, which consist of options to acquire 2,185,749 common shares (net of exercises of 1,145,418 and forfeitures of 20,400) as well as 3,295,873 restricted shares and 295,232 restricted stock units. |
the amount otherwise provided to our other senior executive officers, and participation in pension, life insurance, health, disability and major medical insurance plans, and in such other employee benefit plans that may be established during the term of his employment. Mr. Becker is also entitled to six weeks of paid vacation each year and access to a private plane as needed in accordance with company policy.
housing allowance of $7,000 per month, (v) four roundtrip business class tickets per year to California or similar destination per year, (vi) financial planning assistance, (vii) participation in our pension, life insurance, health, disability, and major medical insurance plans and (viii) such other employee benefit plans that may be established during the term of his employment.
anniversary thereof, subject to Mr. Hynes’ continued employment with us. Mr. Hynes also received (i) an automobile allowance, (ii) payment of country club dues not to exceed $5,000 annually, (iii) housing allowance not to exceed $7,000 per month for temporary housing or $8,000 per month for permanent housing, (iv) two airline tickets per month for travel between Bermuda and the United States and (v) participation in our pension, life insurance, health, disability and major medical insurance plans, and in such other employee benefit plans that we establish during the term of his employment.
Bermuda has been amended to be a Safe Harbor Plan within the meaning of the Code, effective as of January 1, 2008.
pro-rated bonus (as determined in good faith by our Compensation Committee based on the relative achievement of performance targets through the termination date) and accrued vacation pay. Payments to Mr. Becker made in connection with his death or disability will be made no later than thirty days after the effective date of termination.
Event | | Pro-Rated Bonus | | Total Cash Severance | | Value of Accelerated Equity (1) | | Gross Up | | Total | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Termination without Cause | 0 | 1,500,000 | (2) | 3,006,938 | (3) | 0 | 4,506,938 | |||||||||||||||
Death or Disability | 1,300,000 | (4) | 3,006,938 | (3) | 0 | 4,306,938 | ||||||||||||||||
Expiration of the Employment Agreement without similar offer of employment | 0 | 750,000 | (2) | 3,006,938 | (3) | 0 | 3,756,938 | |||||||||||||||
With Cause or without Good Reason | 0 | 0 | 0 | 0 | 0 | |||||||||||||||||
Change in Control or for Good Reason | 0 | 3,000,000 | (5) | 3,006,938 | (3) | 2,131,134 | (6) | 8,138,072 | ||||||||||||||
Retirement | 0 | 0 | 270,663 | (7) | 0 | 270,663 |
(1) | Calculated as the sum of (i) the number of restricted shares becoming vested upon termination of employment multiplied by the closing price of our common shares on December 31, 2007 ($27.99) and (ii) the number of options becoming vested upon termination of employment multiplied by the difference between $27.99 and the applicable exercise price of the options. |
(2) | Equal to contractually stated severance amount. |
(3) | Calculated assuming that all unvested restricted shares and options fully vest upon termination of employment. |
(4) | Assumes that actual bonus equals target bonus. |
(5) | Calculated as two times the aggregate of (i) Mr. Becker’s then current base salary and (ii) the greater of Mr. Becker’s last paid bonus or then current target bonus. |
(6) | Pursuant to his employment agreement, Mr. Becker under certain circumstances is entitled to receive a gross-up payment from us to make him whole as a result of any excise taxes that may be imposed upon him under Section 4999 of the Code. |
(7) | Calculated assuming forfeiture of all restricted shares issued prior to February 2007 and full vesting of all restricted shares issued on or after February 1, 2007. |
Event | | Pro-Rated Bonus | | Total Cash Severance | | Value of Accelerated Equity (1) | | Total | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Termination without Cause or for Good Reason | 0 | 665,500 | (2) | 1,591,806 | (3) | 2,257,306 | ||||||||||||
Death or Disability | 335,000 | (4) | 0 | 938,706 | (3) | 1,273,706 | ||||||||||||
Expiration of the Employment Agreement without similar offer of employment | 0 | 170,250 | (5) | 1,904,225 | (6) | 2,074,475 | ||||||||||||
With Cause or without Good Reason | 0 | 0 | 0 | 0 | ||||||||||||||
Change in Control | 0 | 1,351,000 | (7) | 2,034,845 | (8) | 3,385,845 | ||||||||||||
Retirement | 335,000 | (4) | 0 | 1,363,085 | (9) | 1,698,085 |
(1) | Calculated as the sum of (i) the number of restricted shares becoming vested upon termination of employment multiplied by the closing price of our common shares on December 31, 2007 ($27.99) and (ii) the number of options becoming vested upon termination of employment multiplied by the difference between $27.99 and the applicable exercise price of the options. |
(2) | Calculated as the sum of (i) Mr. Roberts’ base salary in effect on December 31, 2007 and (ii) the cash bonus paid to Mr. Roberts with respect to the fiscal year ended December 31, 2006. |
(3) | Calculated assuming (i) pro-rata vesting of unvested restricted shares provided, however, that Mr. Roberts was granted an additional 730 days of credit in determining the vesting of the 35,000 restricted shares from Mr. Roberts’ February 2007 award and (ii) full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(4) | Calculated as Mr. Roberts’ pro rata bonus at December 31, 2007. Assumes Mr. Roberts’ pro rata bonus at December 31, 2007 equals the actual bonus received by Mr. Roberts for fiscal year 2007. |
(5) | Calculated as six months of Mr. Roberts’ then current base salary. |
(6) | Calculated assuming pro-rata vesting of all restricted shares issued prior to February 2007, full vesting of all restricted shares issued on or after February 1, 2007 and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(7) | Calculated as two times the aggregate of (i) Mr. Roberts’ then current base salary and (ii) Mr. Roberts’ then current target bonus. Assumes target bonus equals actual bonus for fiscal year 2007. |
(8) | Calculated assuming that all unvested restricted shares and options fully vest upon termination of employment. |
(9) | Calculated assuming forfeiture of all restricted shares issued prior to February 2007 and full vesting of all restricted shares issued on or after February 1, 2007. |
Event | | Pro-Rated Bonus | | Total Cash Severance | | Value of Accelerated Equity (1) | | Total | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Termination without Cause or for Good Reason | 0 | 1,000,000 | (2) | 1,617,733 | (3) | 2,617,733 | ||||||||||||
Death or Disability | 700,000 | (4) | 0 | 1,617,733 | (3) | 2,317,733 | ||||||||||||
Expiration of the Employment Agreement without similar offer of employment | 0 | 250,000 | (5) | 2,256,773 | (6) | 2,506,773 | ||||||||||||
With Cause or without Good Reason | 0 | 0 | 0 | 0 | ||||||||||||||
Change in Control | 0 | 2,400,000 | (7) | 2,552,184 | (8) | 4,952,184 | ||||||||||||
Retirement | 700,000 | (4) | 0 | 902,174 | (9) | 1,602,174 |
(1) | Calculated as the sum of (i) the number of restricted shares becoming vested upon termination of employment multiplied by the closing price of our common shares on December 31, 2007 ($27.99) and (ii) the number of options becoming vested upon termination of employment multiplied by the difference between $27.99 and the applicable exercise price of the options. |
(2) | Calculated as the sum of (i) Mr. Minton’s base salary in effect on December 31, 2007 and (ii) the cash bonus paid to Mr. Minton with respect to the fiscal year ended December 31, 2006. |
(3) | Calculated assuming pro-rata vesting of unvested restricted shares and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(4) | Calculated as Mr. Minton’s pro rata bonus at December 31, 2007. Assumes Mr. Minton’s pro rata bonus at December 31, 2007 equals the actual bonus received by Mr. Minton for fiscal year 2007. |
(5) | Calculated as six months of Mr. Minton’s then current base salary. |
(6) | Calculated assuming pro-rata vesting of all restricted shares issued prior to February 2007, full vesting of all restricted shares issued on or after February 1, 2007 and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(7) | Calculated as two times the aggregate of (i) Mr. Minton’s then current base salary and (ii) Mr. Minton’s then current target bonus. Assumes target bonus equals actual bonus for fiscal year 2007. |
(8) | Calculated assuming that all unvested restricted shares and options fully vested upon termination of employment. |
(9) | Calculated assuming forfeiture of all restricted shares issued prior to February 2007 and full vesting of all restricted shares issued on or after February 1, 2007. |
Event | | Pro-Rated Bonus | | Total Cash Severance | | Value of Accelerated Equity (1) | | Total | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Termination without Cause or for Good Reason | 0 | 1,103,000 | (2) | 1,781,469 | (3) | 2,884,469 | ||||||||||||
Death or Disability | 625,000 | (4) | 0 | 1,781,469 | (3) | 2,406,469 | ||||||||||||
Expiration of the Employment Agreement without similar offer of employment | 0 | 239,000 | (5) | 2,432,483 | (6) | 2,671,483 | ||||||||||||
With Cause or without Good Reason | 0 | 0 | 0 | 0 | ||||||||||||||
Change in Control | 0 | 2,206,000 | (7) | 3,502,557 | (8) | 5,708,557 | ||||||||||||
Retirement | 625,000 | (4) | 0 | 919,080 | (9) | 1,544,080 |
(1) | Calculated as the sum of (i) the number of restricted shares becoming vested upon termination of employment multiplied by the closing price of our common shares on December 31, 2007 ($27.99) and (ii) the number of options becoming vested upon termination of employment multiplied by the difference between $27.99 and the applicable exercise price of the options. |
(2) | Calculated as the sum of (i) Mr. Guagliano’s base salary in effect on December 31, 2007 and (ii) the cash bonus paid to Mr. Guagliano with respect to the fiscal year ended December 31, 2006. |
(3) | Calculated assuming pro-rata vesting of unvested restricted shares and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(4) | Calculated as Mr. Guagliano’s pro rata bonus at December 31, 2007. Assumes Mr. Guagliano’s pro rata bonus at December 31, 2007 equals the actual bonus received by Mr. Guagliano for fiscal year 2007. |
(5) | Calculated as six months of Mr. Guagliano’s then current base salary. |
(6) | Calculated assuming pro-rata vesting of all restricted shares issued prior to February 2007, full vesting of all restricted shares issued on or after February 1, 2007 and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(7) | Calculated as two times the aggregate of (i) Mr. Guagliano then current base salary and (ii) Mr. Guagliano then current target bonus. Assumes target bonus equals actual bonus for fiscal year 2007. |
(8) | Calculated assuming that all unvested restricted shares and options fully vested upon termination of employment. |
(9) | Calculated assuming forfeiture of all restricted shares issued prior to February 2007 and full vesting of all restricted shares issued on or after February 1, 2007. |
salary in effect as of the termination date for a two-year period in twenty-four equal monthly installments and (ii) COBRA premiums for a period not to exceed eighteen months.
Event | | Pro-Rated Bonus | | Total Cash Severance | | Value of Accelerated Equity (1) | | Total | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Termination without Cause or for Good Reason | 425,000 | (2) | 1,020,756 | (3) | 962,196 | (4) | 2,407,952 | |||||||||||
Death or Disability | 0 | 0 | 962,196 | (4) | 962,196 | |||||||||||||
Expiration of the Employment Agreement without similar offer of employment | 0 | 0 | 962,196 | (4) | 962,196 | |||||||||||||
With Cause or without Good Reason | 0 | 0 | 0 | 0 | ||||||||||||||
Change in Control | 425,000 | (2) | 1,020,756 | (3) | 3,078,750 | (6) | 4,524,506 | |||||||||||
Retirement | 0 | 0 | 0 | (7) | 0 |
(1) | Calculated as the sum of (i) the number of restricted shares becoming vested upon termination of employment multiplied by the closing price of our common shares on December 31, 2007 ($27.99) and (ii) the number of options becoming vested upon termination of employment multiplied by the difference between $27.99 and the applicable exercise price of the options. |
(2) | Calculated as Mr. Vaccaro’s pro rata bonus at December 31, 2007. Assumes Mr. Vaccaro’s pro rata bonus at December 31, 2007 equals the actual bonus received by Mr. Vaccaro for fiscal year 2007. |
(3) | Calculated as the aggregate of (i) two times Mr. Vaccaro’s then current base salary and (ii) COBRA premiums for no more than eighteen months following Mr. Vaccaro’s termination date. |
(4) | Calculated assuming pro-rata vesting of unvested restricted shares and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(5) | Calculated assuming pro-rata vesting of all restricted shares issued prior to February 2007, full vesting of all restricted shares issued on or after February 1, 2007 and full vesting of all unvested options that would have vested in the one year period following termination of employment. |
(6) | Calculated assuming that all unvested restricted shares and options fully vested upon termination of employment. |
(7) | Calculated assuming forfeiture of all restricted shares issued prior to February 2007 and full vesting of all restricted shares issued on or after February 1, 2007. |
named executive officer’s employment agreement; (v) willful failure or refusal to perform the duties under the named executive officer’s employment agreement; or (vi) breach of any material provision of the named executive officer’s employment agreement related to conduct which is not cured, if curable, within 10 days after written notice is given by us to the named executive officer (or in the case of Mr. Becker, 30 days written notice).
beginning of such period constituted our board of directors (together with any new directors whose election by our board of directors whose nomination by our shareholders was approved by a vote of our board of directors then still in office who are either directors at the beginning of such period or whose election or nomination for election was so previously approved) cease for any reason to constitute a majority of our board of directors then in office; or (iv) our board of directors or our shareholders approve a merger or consolidation of the parent with any other corporation, other than a merger or consolidation which would result in our voting securities outstanding immediately prior thereto continuing to represent at least 80% of the total voting power represented by our voting securities immediately after such merger or consolidation, or our board of directors or shareholders approve a plan of our complete liquidation or an agreement for the sale or disposition by us (in one or a series of transactions) of all or substantially all of our assets.
each non-employee director (except as otherwise provided above) receives a $2,500 fee per board of directors or committee meeting attended. We reimburse directors for usual and customary expenses while on company business. In addition, we reimburse directors for expenses for family members to accompany them to one board meeting per year.
Name | | Fees Earned or Paid in Cash ($)(1) | | Share Awards ($)(2)(3) | | Option Awards ($)(4) | | Non-Equity Incentive Plan Compensation ($) | | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | | All Other Compensation ($)(5) | | Total ($) | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Zack H. Bacon III | 50,000 | 42,476 | — | — | — | 197 | 92,673 | |||||||||||||||||||||||
John R. Barber (6) | — | — | — | — | — | — | — | |||||||||||||||||||||||
Gordon Cheesbrough | 40,000 | 11,996 | — | — | — | — | 51,996 | |||||||||||||||||||||||
K. Bruce Connell | 42,500 | 11,996 | — | — | — | 4,048 | 58,544 | |||||||||||||||||||||||
William H. Heyman | 62,500 | 42,476 | 1,538 | — | — | 4,718 | 111,232 | |||||||||||||||||||||||
Willis T. King, Jr. | 62,500 | 42,476 | 1,538 | — | — | 3,569 | 110,083 | |||||||||||||||||||||||
William Kronenberg III | 55,000 | 27,929 | — | — | — | 4,100 | 87,029 | |||||||||||||||||||||||
Steven M. Skala | 57,500 | 42,476 | 1,538 | — | — | — | 101,514 | |||||||||||||||||||||||
Mario P. Torsiello | 62,500 | 42,476 | 1,538 | — | — | 103 | 106,617 | |||||||||||||||||||||||
James L. Zech | 57,500 | 42,476 | 1,538 | — | — | — | 101,514 |
(1) | Fees earned are comprised of the following: |
Name | | Board Meeting Fee | | Committee Meeting Fee | | Retainer Fee | | Total Fees earned | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Zack H. Bacon III | 10,000 | 10,000 | 30,000 | 50,000 | ||||||||||||||
John R. Barber | — | — | — | — | ||||||||||||||
Gordon Cheesbrough | 5,000 | 5,000 | 30,000 | 40,000 | ||||||||||||||
K. Bruce Connell | 7,500 | 5,000 | 30,000 | 42,500 | ||||||||||||||
William H. Heyman | 10,000 | 12,500 | 40,000 | 62,500 | ||||||||||||||
Willis T. King, Jr. | 10,000 | 17,500 | 35,000 | 62,500 | ||||||||||||||
William Kronenberg III | 10,000 | 15,000 | 30,000 | 55,000 | ||||||||||||||
Steven M. Skala | 10,000 | 17,500 | 30,000 | 57,500 | ||||||||||||||
Mario P. Torsiello | 10,000 | 22,500 | 30,000 | 62,500 | ||||||||||||||
James L. Zech | 7,500 | 15,000 | 35,000 | 57,500 |
(2) | All awards were granted under our 2000 Incentive Plan. We account for the 2000 Incentive Plan under SFAS No. 123R “Share Based Payments.” The value in the “Share Awards” column is the amount we expensed during 2007 for each director’s share award. The full grant fair value of the share awards computed in accordance with SFAS No. 123R is $1,082,260. |
(3) | The aggregate number of unvested restricted shares held by each director on December 31, 2007 was 44,000. |
(4) | The aggregate number of stock options, vested and unvested, held by each director on December 31, 2007 was 74,000. |
(5) | Includes costs to have family members accompany the director to one board of director’s meeting per year. |
(6) | Mr. Barber was a director until May 2007 but was not compensated for his service as a director. |
(For fiscal year 2007)
K. Bruce Connell
William Kronenberg III
James L. Zech
AUTHORIZATION OF ELECTION OF A DIRECTOR OF MAX BERMUDA
MAX CAPITAL AUDITORS PROPOSAL
MAX BERMUDA AUDITORS PROPOSAL
MAX CAPITAL EMPLOYEE STOCK PURCHASE PLANS
be sold or otherwise disposed of while held in the restricted account without the committee’s prior written consent. However, in the event of a change in control (as defined in the Plans), the twelve month holding period will no longer apply and the participant may sell the common shares at any time.
AMENDMENT TO THE BYE-LAWS OF MAX CAPITAL
MAX CAPITAL 2008 STOCK INCENTIVE PLAN
authority to determine who will be granted an award under the 2008 Incentive Plan, however, it may delegate such authority to one or more officers of the company under the circumstances set forth in the 2008 Incentive Plan.
with an option shall be subject to terms similar to the option corresponding to such SARs. SARs shall be subject to terms established by our Compensation Committee and reflected in the award agreement.
• | net earnings or net income (before or after taxes); |
• | basic or diluted earnings per share (before or after taxes); |
• | net revenue or revenue growth; |
• | gross profit or gross profit growth; |
• | operating profit (before or after taxes); |
• | return measures (including, but not limited to, return on assets, capital, invested capital, equity or sales); |
• | cash flow (including, but not limited to, operating cash flow, free cash flow and cash flow return on capital); |
• | earnings before or after taxes, interest, depreciation, and/or amortization; |
• | gross or operating margins; |
• | productivity ratios; |
• | share price (including, but not limited to, growth measures and total shareholder return); |
• | expense targets; |
• | margins; |
• | operating efficiency; |
• | objective measures of customer satisfaction; |
• | working capital targets; |
• | measures of economic value added; |
• | inventory control; |
• | enterprise value; |
• | sales; |
• | debt levels and net debt; |
• | client retention; |
• | employee retention; |
• | timely completion of new product rollouts; |
• | timely launch of new facilities; |
• | objective measures of personal targets, goals or completion of projects; |
• | combined ratio; or |
• | any combination of the foregoing. |
the date of grant of the option, or (ii) one year from the date of exercise. Holders of qualified options will generally incur no federal income tax liability at the time of grant or upon exercise of those options. However, the spread at exercise will be an “item of tax preference,” which may give rise to “alternative minimum tax” liability for the taxable year in which the exercise occurs. If the holder does not dispose of the shares before two years following the date of grant and one year following the date of exercise, the difference between the exercise price and the amount realized upon disposition of the shares will constitute long-term capital gain or loss, as the case may be. Assuming both holding periods are satisfied, no deduction will be allowed to the company for federal income tax purposes in connection with the grant or exercise of the qualified option. If, within two years following the date of grant or within one year following the date of exercise, the holder of shares acquired through the exercise of a qualified option disposes of those shares, the participant will generally realize taxable compensation at the time of such disposition equal to the difference between the exercise price and the lesser of the fair market value of the share on the date of exercise or the amount realized on the subsequent disposition of the shares, and that amount will generally be deductible by the company for federal income tax purposes, subject to the possible limitations on deductibility under Sections 280G and 162(m) of the Code for compensation paid to executives designated in those Sections. Finally, if an otherwise qualified option becomes first exercisable in any one year for shares having an aggregate value in excess of $100,000 (based on the grant date value), the portion of the qualified option in respect of those excess shares will be treated as a non-qualified stock option for federal income tax purposes.
Dated: March 19, 2008
Audit and Risk Management Committee Charter
1. | Review and discuss with management and the independent auditor the Company’s quarterly financial statements prior to the filing of its Form 10-Q, including the results of the independent auditor’s reviews of the quarterly financial statements. |
2. | Discuss with management and the independent auditor significant financial reporting issues and judgments made in connection with the preparation of the Company’s financial statements, including any significant changes in the Company’s selection or application of accounting principles, any major issues as to the adequacy of the Company’s internal controls and any special steps adopted in light of material control deficiencies. |
3. | Review and discuss quarterly reports from the independent auditors on: |
a. | All critical accounting policies and practices to be used. |
b. | All alternative treatments of financial information within generally accepted accounting principles that have been discussed with management, ramifications of the use of such alternative disclosures and treatments, and the treatment preferred by the independent auditor. |
c. | Other material written communications between the independent auditor and management, such as any management letter or schedule of unadjusted differences. |
4. | Discuss with management the Company’s earnings press releases, including the use of “pro forma” or “adjusted” non-GAAP information, as well as financial information and earnings guidance provided to analysts and rating agencies. Such discussion may be done generally (consisting of discussing the types of information to be disclosed and the types of presentations to be made). |
5. | Discuss with management and the independent auditor the effect of regulatory and accounting initiatives as well as off-balance sheet structures on the Company’s financial statements. |
6. | Discuss with management the Company’s major financial risk exposures and the steps management has taken to monitor and control such exposures, including the Company’s risk assessment and risk management policies. |
7. | Discuss with the independent auditor the matters required to be discussed by Statement on Auditing Standards No. 61 relating to the conduct of the audit, including any difficulties encountered in the course of the audit work, any restrictions on the scope of activities or access to requested information, and any significant disagreements with management. |
8. | Review disclosures made to the Audit Committee by the Company’s CEO and CFO during their certification process for the Form 10-K and Form 10-Q about any significant deficiencies in the design or operation of internal controls or material weaknesses therein and any fraud involving management or other employees who have a significant role in the Company’s internal controls. |
9. | Review and evaluate the lead partner of the independent auditor team. |
10. | Obtain and review a report from the independent auditor at least annually regarding (a) the independent auditor’s internal quality-control procedures, (b) any material issues raised by the most recent internal quality-control review, or peer review, of the firm, or by any inquiry or investigation by governmental or professional authorities within the preceding five years respecting one or more independent audits carried out by the firm, (c) any steps taken to deal with any such issues, and (d) all relationships between the independent auditor and the Company. Evaluate the qualifications, performance and independence of the independent auditor, including considering whether the auditor’s quality controls are adequate and the provision of permitted non-audit services is compatible with maintaining the auditor’s independence, and taking into account the opinions of management and the internal audit executives. The Committee shall present its conclusions with respect to the independent auditor to the Board. |
11. | Ensure the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as required by law. Consider whether, in order to assure continuing auditor independence, it is appropriate to adopt a policy of rotating the independent auditing firm on a regular basis. |
12. | Recommend to the Board policies for the Company’s hiring of employees or former employees of the independent auditor who participated in any capacity in the audit of the Company. |
13. | Discuss with the national office of the independent auditor issues on which they were consulted by the Company’s audit team and matters of audit quality and consistency. |
14. | Meet with the independent auditor prior to the audit to discuss the planning and staffing of the audit. |
15. | Review the appointment and replacement of the senior internal audit executive. |
16. | Review the significant reports to management prepared by the internal audit executive and management’s responses. |
17. | Discuss with the independent auditor and management the internal audit responsibilities, budget and staffing and any recommended changes in the planned scope of the internal audit. |
18. | Obtain from the independent auditor assurance that Section 10A(b) of the Exchange Act has not been implicated. |
19. | Obtain reports from management, the Company’s senior internal auditing executive and the independent auditor that the Company and its subsidiary/foreign affiliated entities are in conformity with applicable legal requirements and the Company’s Code of Business Conduct and Ethics. Review reports and disclosures of insider and affiliated party transactions. Advise the Board with respect to the Company’s policies and procedures regarding compliance with applicable laws and regulations and with the Company’s Code of Business Conduct and Ethics. |
20. | Review and approve related party transactions which includes any related party transactions that the Company would be required to disclose pursuant to Item 404 of SEC Regulation S-K. |
21. | Establish procedures for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters, and the confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters. |
22. | Discuss with management and the independent auditor any correspondence with regulators or governmental agencies and any published reports that raise material issues regarding the Company’s financial statements or accounting policies. |
23. | Discuss with the Company’s Counsel legal matters that may have a material impact on the financial statements or the Company’s compliance policies. |
MAX CAPITAL GROUP LTD.
EMPLOYEE STOCK PURCHASE PLAN
FOR U.S. TAXPAYERS
Effective July 1, 2008
nomination by the shareholders of the Company was approved by a vote of the then incumbent Board (i.e. those members of the Board who either have been directors from the beginning of such two-year period or whose election or nomination for election was previously approved by the Board as provided in this Section 2(e)(iii)) cease for any reason to constitute a majority of the Board;
such deductible amount;provided, however, no additional amounts will be deducted to satisfy the Outstanding Election.
Capital or a Participating Subsidiary, or if the entity by which he or she is employed should cease to be a Participating Subsidiary, his or her election to purchase Common Shares shall be deemed to have been cancelled at that time;provided, however, that the Committee in its sole discretion may in lieu thereof specify that there shall be a “substitution or assumption” (and not a deemed cancellation) of an election to purchase Common Shares if the Committee determines that a company or entity and Max Capital have made satisfactory arrangements for such company or entity to substitute a new option for the Option under such election to purchase, or to assume such Option under such election to purchase Common Shares, by reason of a transaction: (A) that is a corporate merger, amalgamation, consolidation, acquisition of property or stock, separation, reorganization, or liquidation, as defined in Section 424(a) of the Code and regulations thereunder (including a spin-off, split-up or similar transaction); (B) pursuant to which the excess of the aggregate fair market value of the Common Shares subject to the new option immediately after the substitution or assumption over the aggregate option price of such shares is not more than the excess of the aggregate fair market value of all Common Shares subject to the Option immediately before the substitution or assumption over the aggregate option price of such Common Shares; and (C) pursuant to which the new option or the assumption of the Option does not give the Participant additional benefits which he or she did not have under the Option.
damages for wrongful dismissal or other breach of contract or by way of compensation for loss of office or otherwise.
[Enrollment Form]
MAX CAPITAL GROUP LTD.
EMPLOYEE STOCK PURCHASE PLAN
FOR NON-U.S. TAXPAYERS
Effective July 1, 2008
law. The Committee’s determinations as to the interpretation and operation of this Plan shall be final and conclusive.
Service upon the expiration of his or her leave of absence or lay-off or, in any event, within 90 days from the date of his or her leaving Active Service (unless the Participant’s right to reemployment with his or her employer is guaranteed either by statute or contract), his or her election to purchase Common Shares shall be deemed to have been cancelled on the 91st day after such Participant’s leaving Active Service.
participation in the Plan and will take reasonable measures to keep such personal data private, confidential, accurate and current.
[Enrollment Form]
Amendments to Bye-Laws
MAX CAPITAL GROUP LTD.
2008 STOCK INCENTIVE PLAN
such exchange or system on the day of determination, as reported inThe Wall Street Journal or such other source as the Administrator deems reliable;
any such action, suit or proceeding against such Indemnifiable Person,provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts or omissions of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s bad faith, fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the Company’s Certificate of Incorporation or Bye-Laws. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Indemnifiable Persons may be entitled under the Company’s Certificate of Incorporation or Bye-Laws, as a matter of law, or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
by the Company or a third party under contract with the Company)). Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the applicable Award agreement expressly states that the Option is intended to be an Incentive Stock Option. Incentive Stock Options shall be granted only to Eligible Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless the Plan has been approved by the shareholders of the Company in a manner intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code, provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option appropriately granted under the Plan.
Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Common Shares in lieu of actual delivery of such shares to the Company);provided, that such Common Shares are not subject to any pledge or other security interest and are Mature Shares and; (ii) by such other method as the Committee may permit in accordance with applicable law, in its sole discretion, including without limitation: (A) in other property having a fair market value on the date of exercise equal to the Exercise Price or (B) if there is a public market for the Common Shares at such time, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for which the Option was exercised that number of Common Shares having a fair market value equal to the aggregate Exercise Price for the Common Shares for which the Option was exercised. Any fractional Common Shares shall be settled in cash.
other than such Participant’s termination of employment or service for Cause, but not later than the expiration of the SAR Period; and (iii) both the unvested and the vested portion of a SAR shall expire upon the termination of the Participant’s employment or service by the Company for Cause.
evidencing the shares of Restricted Stock that have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Participant in cash or, at the sole discretion of the Committee, in shares of Common Stock having a fair market value equal to the amount of such dividends, upon the release of restrictions on such share and, if such share is forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by the Committee in the applicable Award agreement).
depreciation and/or amortization; (ix) gross or operating margins; (x) productivity ratios; (xi) share price (including, but not limited to, growth measures and total shareholder return); (xii) expense targets; (xiii) margins; (xiv) operating efficiency; (xv) objective measures of customer satisfaction; (xvi) working capital targets; (xvii) measures of economic value added; (xviii) inventory control; (xix) enterprise value; (xx) sales; (xxi) debt levels and net debt; (xxii) combined ratio; (xxiii) timely launch of new facilities; (xxiv) client retention; (xxv) employee retention; (xxvi) timely completion of new product rollouts; and (xxvii) objective measures of personal targets, goals or completion of projects. Any one or more of the Performance Criteria may be used on an absolute or relative basis to measure the performance of the Company and/or one or more Affiliates as a whole or any business unit(s) of the Company and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Criteria may be compared to the performance of a selected group of comparison companies, or a published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices. The Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance Criteria specified in this paragraph. To the extent required under Section 162(m) of the Code, the Committee shall, within the first 90 days of a Performance Period (or, if longer or shorter, within the maximum period allowed under Section 162(m) of the Code), define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period and thereafter promptly communicate such Performance Criteria to the Participant.
The Committee shall then determine the amount of each Participant’s Performance Compensation Award actually payable for the Performance Period and, in so doing, may apply Negative Discretion.
fair market value of a Common Share subject thereto may be canceled and terminated without any payment or consideration therefor);
effective without the consent of the affected Participant;provided, further, that without shareholder approval, except as otherwise permitted under Section 12 of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee may not cancel any outstanding Option or SAR and replace it with a new Option or SAR, another Award or cash and (iii) the Committee may not take any other action that is considered a “repricing” for purposes of the shareholder approval rules of the applicable securities exchange or inter-dealer quotation system on which the Common Shares are listed or quoted.
Company all rights in any Intellectual Property Product created by the Participant during his or her engagement by the Company, by accepting an Award, the Participant assigns all right, title and interest therein, in perpetuity and throughout the world, to the Company. The Participant agrees to execute, immediately upon the Company’s reasonable request and without charge, any further assignments, applications, conveyances or other instruments, at any time, whether or not the Participant is engaged by the Company at the time such request is made, in order to permit the Company and/or its respective assigns to protect, perfect, register, record, maintain, or enhance their rights in any Intellectual Property Product;provided, that, the Company shall bear the cost of any such assignments, applications or consequences. Upon termination of the Participant’s employment by the Company for any reason whatsoever, and at any earlier time the Company so requests, the Participant will immediately deliver to the custody of the person designated by the Company all originals and copies of any documents and other property of the Company in the Participant’s possession, under the Participant’s control or to which he or she may have access. For purposes of this Section 15, the term “Company” shall include the Company and its Affiliates.
notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) the consequences of the termination of the Participant’s employment by, or services to, the Company or an Affiliate under the terms of the Plan and the applicable Award agreement shall continue to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award agreement.
time to time, revoke or change his beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling;provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his or her spouse or, if the Participant is unmarried at the time of death, his or her estate.
Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of delivery of Common Shares (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof.
consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
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IF THIS PROXY IS PROPERLY EXECUTED AND RETURNED, THE COMMON SHARES REPRESENTED THEREBY WILL BE VOTED. IF A CHOICE IS SPECIFIED BY THE SHAREHOLDER, THE SHARES WILL BE VOTED ACCORDINGLY. IF NOT OTHERWISE SPECIFIED, THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED FOR PROPOSALS 1, 2, 3, 4, 5, 6 AND 7. | Please Mark Here for Address Change or Comments | £ |
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1A. | To elect Willis T. King to the Board of Directors of Max Capital Group Ltd. to serve until the annual meeting of shareholders in 2011. |
| £ | £ | £ | 2. | To authorize the election of Peter A. Minton to the Board of Directors of Max Bermuda Ltd. to serve until the annual meeting of shareholders in 2011. |
| £ | £ | £ | 5. | To approve the Max CapitalGroup Ltd. 2008 EmployeeStock PurchasePlans. |
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1B. | To elect James H.MacNaughtontotheBoardof Directors ofMax CapitalGroup Ltd. to serve untilthe annual meeting of shareholders in 2011. |
| £ | £ | £ | 3. | Auditors. To ratify theappointmentofKPMG,Hamilton,Bermuda as independent auditorsof Max Capital Group Ltd. for 2008. |
| £ | £ | £ | 6. | To approve an amendmentto Max CapitalGroup Ltd.’sbye-lawsto permit fortheholdingof treasury shares by Max Capital Group Ltd. |
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1C. | To elect Peter A Minton to the Boardof Directors of Max Capital GroupLtd.toserve until the annual meeting of shareholders in 2011. |
| £ | £ | £ | 4. | Auditors. To authorize the ratificationofthe appointment of KPMG,Hamilton,Bermuda as independent auditors for Max Bermuda Ltd. for 2008. |
| £ FOR | £ AGAINST | £ ABSTAIN | 7. | To approve the Max CapitalGroupLtd. 2008 StockIncentive Plan. |
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1D. | To elect Steven M.Skala to the Boardof Directors of Max Capital GroupLtd.toserve until the annual meeting of shareholders in 2011. |
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| IN WITNESS WHEREOF,the undersigned has executed this Proxy on this ________ day of __________________ 2008. |
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| Business Entity: _________________________________________ |
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| By: ________________________________________________ |
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In their discretion, the proxies are authorized to vote upon such other matters as may properly come before the meeting or any adjournment or postponement thereof. |
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In the case of joint tenancies, co-executors or co-trustees, all should sign. Persons signing as attorney, executor, administrator, trustee or guardian should indicate their full title. |
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Vote by Internet or Mail
24 Hours a Day, 7 Days a Week
Internet voting is available through 1:00 PM Atlantic Time
on the day prior to annual meeting.
Your Internet vote authorizes the named proxies to vote your shares in the same manner
as if you marked, signed and returned your proxy card.
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INTERNET | OR | Mail |
If you vote your proxy by Internet,
you do NOT need to mail back your proxy card.
| ChooseMLinkSM for fast, easy and secure 24/7 online access to your future proxy materials, investment plan statements, tax documents and more. Simply log on toInvestor ServiceDirect® atwww.bnymellon.com/shareowner/isd where step-by-step instructions will prompt you through enrollment. |
on the Internet at http:/ /bnymellon.mobular.net/bnymellon/mxgl
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| Max Capital Group Ltd. | |
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| ANNUAL GENERAL MEETING OF SHAREHOLDERS | |
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| THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS | |
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The undersigned hereby appoints Sarene A. Bourdages and Rachael M. Lathan, and each of them, as proxies of the undersigned, each with full power to act without the other and with full power of substitution, to vote all the Common Shares of Max Capital Group Ltd. held in the name of the undersigned at the close of business on February 29, 2008, at the Annual General Meeting of Shareholders to be held on May 5, 2008, at 1:00 p.m. (Atlantic Time), and at any adjournment thereof, with all the powers the undersigned would have if personally present, as set forth below. | ||
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| Address Change/Comments(Mark the corresponding box on the reverse side) |
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FOLD AND DETACH HERE |
You can now access your Max Capital Group Ltd. account online.
Access your Max Capital Group Ltd. shareholder account online via Investor ServiceDirect® (ISD).
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| • | View account status | • | View payment history for dividends |
| • | View certificate history | • | Make address changes |
| • | View book-entry information | • | Obtain a duplicate 1099 tax form |
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| • | Establish/change your PIN |
Visit us on the web at http://www.bnymellon.com/shareowner
For Technical Assistance Call 1-877-978-7778 between 9am-7pm
Monday-Friday Eastern Time