Exhibit 4.11
SHAREHOLDER'S AGREEMENT
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This Shareholder's Agreement (this "Agreement") is entered
into as of [o], 2003, between Aspen Insurance Holdings Limited, a Bermuda
corporation (the "Company"), and the undersigned person ("Shareholder") (the
Company and Shareholder being hereinafter collectively referred to as the
"Parties"). All capitalized terms not immediately defined are hereinafter
defined in Section 1 hereof.
WHEREAS, this Agreement is one of several other agreements
("Other Shareholders' Agreements") which have been, or which in the future will
be, entered into between the Company and other individuals who are or will be
directors, executive officers or key employees of the Company or one of its
Affiliates (collectively, the "Other Shareholders");
WHEREAS, prior to the date hereof Shareholder acquired from
the Company and is the holder of [o] Ordinary Shares (the "Purchased Shares")
pursuant to the terms of [FOR MYNERS, O'KANE, CUSACK, DAVIES, MAY: that certain
Subscription and Shareholders' Agreement dated 28 May 2002, between the Company,
Shareholder and others (as amended on 21 June 2002, 17 September 2002, 3 October
2002, 22 November 2002, 27 November 2002 and 11 February 2003, the "Subscription
and Shareholders' Agreement")] [FOR ALL OTHERS: a Subscription [Deed][Agreement]
dated [21 June 2002][or appropriate date] between the Company and Shareholder
(the "Share Subscription Agreement")]; and
WHEREAS, Shareholder has been selected by the Company, as of
or prior to the date hereof, to receive options to purchase [o] Ordinary Shares
(the "Options") pursuant to the terms set forth below and the terms of the Aspen
Insurance Holdings Limited 2003 Share Incentive Plan (the "Plan") and the
Nonqualified Share Option Agreement dated as of [o], 2003, entered into by and
between the Company and Shareholder (the "Option Agreement").
NOW THEREFORE, to implement the foregoing and in consideration
of the grant of Options and of the mutual agreements contained herein, the
Parties agree as follows:
1. Definitions. Terms used herein and defined above shall have
the meanings specified above and the following terms shall have the following
meanings:
"Affiliate" shall mean (i) any entity that controls, is
controlled by, or is under common control with, the Company (and the term
"control", including, with correlative meanings, the terms "controlled by" and
"under common control with", shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such entity, whether through the ownership of voting securities, by contract or
otherwise) or (ii) any other entity designated by the Board in which the Company
or any of its Affiliates has an interest.
[FOR DIRECTORS/EXECUTIVE OFFICERS ONLY: "Appraisal Notice"
shall have the meaning set forth in Section 2(j) hereof.]
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[FOR DIRECTORS/EXECUTIVE OFFICERS ONLY: "Appraiser" shall have
the meaning set forth in Section 2(j) hereof.]
"Beneficial Owner" means a "beneficial owner", as such term is
defined in Rule 13d-3 under the Exchange Act (except that a Person shall be
deemed to have "beneficial ownership" of all Shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time).
"Board" shall mean the board of directors (or any committee
thereof, as determined by the board of directors) of the Company.
"Business Day" shall mean a day (excluding Saturday and
Sunday) on which banks are open for business in New York, London and Bermuda for
the transaction of normal banking business.
"Call Closing Date" shall have the meaning set forth in
Section 6(c) hereof.
"Called Options" shall have the meaning set forth in Section
6(c) hereof.
"Called Shares" shall have the meaning set forth in Section
6(c) hereof.
"Call Event" shall mean a Section 6(a) Call Event or a Section
6(b) Call Event.
"Call Notice" shall have the meaning set forth in Section 6(c)
hereof.
"Call Price" shall mean (i) for a Section 6(a) Call Event, the
Section 6(a) Call Price and (ii) for a Section 6(b) Call Event, the Section 6(b)
Call Price.
"Cause" shall mean (i) Shareholder's engagement in misconduct
which is materially injurious to the Company or any of its Affiliates, (ii)
Shareholder's continued failure to substantially perform his duties to the
Company or any of its Affiliates, (iii) Shareholder's repeated dishonesty in the
performance of his duties to the Company or any of its Affiliates, (iv)
Shareholder's commission of an act or acts constituting any (x) fraud against,
or misappropriation or embezzlement from, the Company or any of its Affiliates,
(y) crime involving moral turpitude, or (z) criminal offense that could result
in a jail sentence of at least 30 days, (v) Shareholder's continued failure to
comply with the material applicable rules or regulations of any regulatory
authority with regulatory jurisdiction over the Company or any of its
Affiliates, or (vi) Shareholder's material breach of any confidentiality or
non-competition covenant entered into between Shareholder and the Company,
provided that, with respect to such a breach of covenant that could be cured to
the Company's satisfaction, Shareholder did not promptly cure such breach. The
determination of the existence of Cause shall be made by the Board in good
faith. Notwithstanding anything in this Agreement to the contrary, if the Board
determines in good faith that grounds for termination of Shareholder's
Employment for Cause exist at the time of termination of Shareholder's
Employment for any reason, then, for all purposes, the Shares and the Options of
Shareholder shall be treated as if Shareholder's Employment were or had been
terminated for Cause.
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(a) "Change in Control" means
(i) at any time that the Investors (as defined below) are the
Beneficial Owners of 33.33% or more of the combined voting power of the
voting shares of the Company, the occurrence of any of the following
events:
(A) the sale or disposition, in one or a
series of related transactions, of all or
substantially all of the assets of the Company to any
Person or Group (other than (x) any subsidiary (as
defined below) of the Company or (y) any entity which
is a holding company of the Company (other than any
holding company which became a holding company in a
transaction that resulted in a Change in Control) or
any subsidiary of such holding company);
(B) any Person or Group is or becomes the
Beneficial Owner, directly or indirectly, of more
than 50% of the combined voting power of the voting
shares of the Company (or any entity which is the
Beneficial Owner of more than 50% of the combined
voting power of the voting shares of the Company),
including by way of merger, consolidation, tender or
exchange offer or otherwise; excluding, however, the
following: (I) any acquisition directly from the
Company, (II) any acquisition by the Company, or
(III) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company;
or
(C) the consummation of any transaction or
series of transactions resulting in a merger,
consolidation or amalgamation, in which the Company
is involved, other than a merger, consolidation or
amalgamation which would result in the shareholders
of the Company immediately prior thereto continuing
to own (either by remaining outstanding or by being
converted into voting securities of the surviving
entity), in the same proportion as immediately prior
to the transaction(s), more than 50% of the combined
voting power of the voting shares of the Company or
such surviving entity outstanding immediately after
such merger, consolidation or amalgamation.
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(ii) at any time that the Investors (as defined below) are the
Beneficial Owners of less than 33.33% of the combined voting power of
the voting shares of the Company, the occurrence of any of the
following events:
(A) the sale or disposition, in one or a
series of related transactions, of all or
substantially all of the assets of the Company to any
Person or Group (other than (x) any subsidiary of the
Company or (y) any entity that is a holding company
of the Company (other than any holding company which
became a holding company in a transaction that
resulted in a Change in Control) or any subsidiary of
such holding company);
(B) any Person or Group is or becomes the
Beneficial Owner, directly or indirectly, of more
than 30% of the combined voting power of the voting
shares of the Company (or any entity which is the
Beneficial Owner of more than 50% of the combined
voting power of the voting shares of the Company),
including by way of merger, consolidation, tender or
exchange offer or otherwise; excluding, however, the
following: (I) any acquisition directly from the
Company, (II) any acquisition by the Company, (III)
any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (IV)
any acquisition by a Person or Group if immediately
after such acquisition a Person or Group who is a
shareholder of the Company on the date the Board
approved the Plan (the "Plan Effective Date")
continues to own voting power of the voting shares of
the Company that is greater than the voting power
owned by such acquiring Person or Group;
(C) the consummation of any transaction or
series of transactions resulting in a merger,
consolidation or amalgamation, in which the Company
is involved, other than a merger, consolidation or
amalgamation which would result in the shareholders
of the Company immediately prior thereto continuing
to own (either by remaining outstanding or by being
converted into voting securities of the surviving
entity), in the same proportion as immediately prior
to the transaction(s), more than 50% of the combined
voting power of the voting shares of the Company or
such surviving entity outstanding immediately after
such merger, consolidation or amalgamation; or
(D) a change in the composition of the
entire Board such that the individuals who, as of the
Plan Effective Date, constitute the Board (such Board
shall be referred to for purposes of this subsection
(D) as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board;
provided, however, that for purposes of this
definition, any individual who becomes a member of
the Board subsequent to the Plan Effective Date,
whose election, or nomination for election, by a
majority of those individuals who are members of the
Board and who were also members of the Incumbent
Board (or deemed to be such pursuant to this
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proviso) shall be considered as though such
individual were a member of the Incumbent Board; and,
provided further, however, that any such individual
whose initial assumption of office occurs as the
result of or in connection with either an actual or
threatened election contest (as such terms are used
in Rule 14a-11 or Regulation 14A of the Act) or other
actual or threatened solicitation of proxies or
consents by or on behalf of an entity other than the
Board shall not be so considered as a member of the
Incumbent Board.
For purposes of this Plan, (i) "Investors" shall mean The
Blackstone Group, Wellington Underwriting plc, Candover Partners Limited, Credit
Suisse First Boston Private Equity, Montpelier Re Holdings Ltd., 3i Group plc,
Olympus Partners and Phoenix Equity Partners or their respective Affiliates;
(ii) "subsidiary" shall mean, in respect of any entity, any other entity that
is, directly or indirectly, wholly owned by the first entity; and (iii) "holding
company" shall mean, in respect of any entity, any other entity that, directly
or indirectly, wholly owns such first entity.
"Companies Act" means the Bermuda Companies Act 1981, as
amended from time to time, and any successor thereto.
"Default Event" shall have the meaning set forth in Section
5(c) hereof.
"Eligible Put Shares" shall have the meaning set forth in
Section 5(a)(i) hereof.
"Employment" shall mean (i) Shareholder's employment if
Shareholder is an employee of the Company or any of its Affiliates and (ii)
Shareholder's services as a non-employee director or as an officer if
Shareholder is a non-employee member of the Board or of the board of directors
of an Affiliate of the Company or an officer of the Company or any of its
Affiliates, provided, that, unless otherwise determined by the Board, a change
in Shareholder's status from employee to non-employee (other than a non-employee
director of the Company or any of its Affiliates) shall constitute a termination
of employment hereunder.
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, and any successor thereto.
"Exercisable Options" shall have the meaning set forth in
Section 6(b)(B) hereof.
"Exercisable Option Shares" shall have the meaning set forth
in Section 6(b)(B) hereof.
"Fair Market Value Per Share" shall mean, on a given date, (i)
if there is a public market for the Ordinary Shares on such date, the arithmetic
mean of the high and low prices of the Ordinary Shares as reported on such date
on the Composite Tape of the principal national securities exchange on which
such Shares are listed or admitted to trading, or, if the Ordinary Shares are
not listed or admitted on any national securities exchange, the arithmetic mean
of the per Ordinary Share closing bid price and per Ordinary Share closing asked
price on such date as quoted on the National Association of Securities Dealers
Automated Quotation System (or such
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market in which such prices are regularly quoted) (the "NASDAQ"), or, if no sale
of Ordinary Shares shall have been reported on the Composite Tape of any
national securities exchange or quoted on the NASDAQ on such date, then the
immediately preceding date on which sales of Ordinary Shares have been so
reported or quoted shall be used (if such date is the completion date of the
Initial Public Offering, the Fair Market Value Per Share on such date shall be
the public offering price), and (ii) if there is not a public market for the
Ordinary Shares on such date, [FOR DIRECTORS/EXECUTIVE OFFICERS: the value
determined in accordance with the provisions of Section 2(j)] [FOR ALL OTHER
EMPLOYEES: the value determined by the Board in good faith].
"Group" shall mean "group" as such term is defined in Section
13(d)(3) or 14(d)(2) of the Exchange Act, or any successor section thereto.
"Initial Public Offering" shall mean the initial public
offering by the Company of Ordinary Shares pursuant to a registration statement
(other than a registration statement on Form S-4 or Form S-8, or any other
similar or successor form) filed under the Securities Act and declared effective
by the SEC.
"Investors' Agreement" shall mean that certain Amended and
Restated Shareholders' Agreement dated [o], 2003, by and among the Company, BCP
Excalibur Holdco (Cayman) Limited, Wellington Underwriting plc, The Names'
Trustees Limited on behalf of the Names Trust (defined therein) and others, as
may be amended, restated, supplemented or otherwise modified from time to time.
"Lapse Date" shall have the meaning set forth in Section 3(a)
hereof.
"Maximum Repurchase Amount" shall have the meaning set forth
in Section 10(a) hereof.
"Offeror" shall have the meaning set forth in Section 4(a)
hereof.
"Option Excess Price" shall have the meaning specified in
Section 6(b)(B) hereof.
"Option Exercise Price" shall mean the exercise price of the
Ordinary Shares covered by the Options.
"Option Shares" shall have the meaning set forth in Section
2(a) hereof.
"Ordinary Shares" shall mean the ordinary shares, par value
[(pound)0.01] per share, in the capital of the Company.
"Permanent Disability" shall mean the inability of Shareholder
to perform in all material respects his duties and responsibilities to the
Company or any of its Affiliates, by reason of a physical or mental disability
or infirmity which inability is reasonably expected to be permanent and has
continued (i) for a period of six consecutive months or (ii) such shorter period
as the Board may reasonably determine in good faith. The permanent disability
determination shall be in the sole discretion of the Board, and Shareholder (or
his or her representative) shall
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furnish the Board with medical evidence documenting Shareholder's disability or
infirmity, which is satisfactory to the Board.
"Person" shall mean "person" as such term is defined in
Section 13(d)(3) or 14(d)(2) of the Exchange Act, or any successor section
thereto.
"Plan" shall mean the Aspen Insurance Holdings 2003 Share
Incentive Plan.
"Prime Rate" shall mean, on any day, the "prime rate" reported
by JPMorganChase Bank in New York, New York on such day (or, if such day is not
a Business Day, the preceding Business Day), and if such rate is no longer being
reported by such bank, the prime rate reported by another major bank located in
New York, New York on such day, as determined by the Board.
"Put Closing Date" shall have the meaning set forth in Section
5(b) hereof.
"Put Notice" shall have the meaning set forth in Section 5(b)
hereof.
"Put Option" shall have the meaning set forth in Section 5(a)
hereof.
"Put Period" shall have the meaning set forth in Section 5(a)
hereof.
"Registration Rights Agreement" shall mean the Second Amended
and Restated Registration Rights Agreement dated [o], 2003, by and among the
Company, BCP Excalibur Holdco (Cayman) Limited, Wellington Underwriting plc, The
Names' Trustees Limited on behalf of the Names Trust (defined therein) and
others, as may be amended, restated, supplemented or otherwise modified from
time to time.
"Repurchase Eligibility Date" shall have the meaning set forth
in Section 5(c) hereof.
"Rule 144" shall mean Rule 144 under the Securities Act, or
any similar or successor rule adopted by the SEC.
"Rule 405 Affiliate" shall mean an affiliate of the Company as
defined under Rule 405 under the Securities Act (or any similar or successor
rule adopted by the SEC) and as interpreted by the Board.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Section 6(a) Call Event" shall have the meaning specified in
Section 6(a) hereof.
"Section 6(a) Call Price" shall have the meaning specified in
Section 6(a) hereof.
"Section 6(b) Call Event" shall have the meaning specified in
Section 6(b) hereof.
"Section 6(b) Call Price" shall have the meaning specified in
Section 6(b) hereof.
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"Securities Act" shall mean the United States Securities Act
of 1933, as amended, and any successor thereto.
"Shareholder Entities" shall mean Shareholder, Shareholder's
Trust and Shareholder's Estate, collectively.
"Shareholder's Estate" shall mean the conservators, guardians,
executors, administrators, testamentary trustees, legatees or beneficiaries of
Shareholder.
"Shareholder's Trust" shall mean (i) a trust solely for the
benefit of Shareholder and Shareholder's spouse, children or grandchildren,
including adopted children and grandchildren and step-children and
step-grandchildren ("Immediate Family") or (ii) a partnership or limited
liability company whose only partners or shareholders are Shareholder or members
of Shareholder's Immediate Family.
"Shares" shall have the meaning set forth in Section 2(a)
hereof.
"Third Party Offer" shall have the meaning set forth in
Section 4(a) hereof.
2. Shareholder's Representations, Warranties and Agreements.
(a) Shareholder agrees and acknowledges that he will not,
directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or
otherwise dispose of (any such act being referred to herein as a "transfer") any
of the Purchased Shares or any Ordinary Shares issuable upon exercise of the
Options ("Option Shares"; together with the Purchased Shares and any Ordinary
Shares or other shares in the capital of the Company hereafter held or acquired
by Shareholder, including, without limitation, upon exercise of any additional
options, warrants or other rights to acquire Ordinary Shares or such other
shares granted or issued to Shareholder, "Shares"), except as otherwise provided
for herein.
(b) Shareholder agrees and acknowledges that he will not
transfer any of the Shares, unless (i) (A) the transfer is pursuant to an
effective registration statement under the Securities Act, and in compliance
with applicable provisions of United States state securities laws, or (B) (1)
counsel for Shareholder (which counsel shall be reasonably acceptable to the
Company) shall have furnished the Company with an opinion, satisfactory in form
and substance to the Company, that no such registration is required because of
the availability of an exemption from registration under the Securities Act, and
(2) if Shareholder is a citizen or resident of any country other than the United
States, or Shareholder desires to effect any transfer in any such country,
counsel for Shareholder (which counsel shall be reasonably satisfactory to the
Company) shall have furnished the Company with an opinion or other advice
reasonably satisfactory in form and substance to the Company to the effect that
such transfer will comply with the securities laws of such jurisdiction; and
(ii) if required by Bermuda law, the transferee is approved by applicable
Bermuda regulatory authorities.
(c) Notwithstanding the foregoing, the Company acknowledges
and agrees that any of the following transfers are deemed to be in compliance
with the Securities Act and this Agreement and no opinion of counsel is required
in connection therewith: (x) a transfer made
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pursuant to Sections 3, 4, 5 or 6 hereof, (y) upon or following Shareholder's
death, to Shareholder's Estate or a transfer to the executors, administrators,
testamentary trustees, legatees or beneficiaries of a natural person who has
become a holder of Shares in accordance with the terms of this Agreement,
provided, that it is expressly understood that any such transferee shall be
bound by the provisions of this Agreement (and, upon request, such transferee
will agree in writing to be bound by the terms and conditions hereof), or (z)
during Shareholder's life, a transfer made in compliance with all applicable
laws to a Shareholder's Trust, provided, that such transfer is made expressly
subject to this Agreement and that the transferee agrees in writing to be bound
by the terms and conditions hereof.
(d) The certificate (or certificates) representing the Shares
shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS CONTAINED IN THE SHAREHOLDER'S
AGREEMENT DATED AS OF [o] 2003 BETWEEN THE COMPANY AND THE
SHAREHOLDER NAMED ON THE FACE OF THIS CERTIFICATE AND THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT DATED AS OF
[o] 2003, AS EACH MAY BE AMENDED FROM TIME TO TIME, AND MAY
NOT BE TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH. COPIES OF
SUCH DOCUMENTS ARE ON FILE AT THE REGISTERED OFFICE OF THE
COMPANY. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF,
AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
DOCUMENTS."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY UNITED STATES STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
UNLESS (I)(A) A REGISTRATION STATEMENT IS IN EFFECT UNDER THE
SECURITIES ACT WITH RESPECT TO SUCH SHARES, OR (B) AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT IS AVAILABLE OR THE SECURITIES ACT DOES NOT
APPLY (AND, IN SUCH CASE, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY SHALL HAVE BEEN DELIVERED TO THE
COMPANY TO SUCH EFFECT), AND (II) IF REQUIRED BY BERMUDA LAW,
THE TRANSFEREE IS APPROVED BY APPLICABLE BERMUDA REGULATORY
AUTHORITIES."
(e) Shareholder acknowledges that he has been advised that (i)
a restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Shares and (ii) a notation shall be made in the
appropriate records of the Company indicating that the Shares are subject to
restrictions on transfer and appropriate stop transfer restrictions will be
issued by the Company to the Company's transfer agent with respect to the
Shares. If Shareholder is a Rule 405 Affiliate, Shareholder also acknowledges
that (1) the Shares must be held indefinitely and Shareholder must continue to
bear the economic risk of the investment in the Shares unless the Shares are
subsequently registered under the Securities Act or an exemption from such
registration is available, (2) when and if the Shares may be disposed of without
registration in reliance on Rule 144, such disposition can be made only in
limited
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amounts in accordance with the terms and conditions of such Rule and (3) if the
Rule 144 exemption is not available, public sale without registration will
require compliance with some other exemption under the Securities Act.
(f) If any Shares are to be disposed of in accordance with
Rule 144 or otherwise, Shareholder shall promptly notify the Company of such
intended disposition and shall deliver to the Company at or prior to the time of
such disposition such documentation as the Company may reasonably request in
connection with such sale and, in the case of a disposition pursuant to Rule
144, shall deliver to the Company an executed copy of any notice on Form 144
required to be filed with the SEC.
(g) Shareholder represents and warrants that (i) with respect
to the Shares he has received and reviewed the available information relating to
the Shares and (ii) he has been given the opportunity to obtain any additional
information or documents and to ask questions and receive answers about such
information, the Company and the business and prospects of the Company which he
deems necessary to evaluate the merits and risks related to his investment in
the Shares and to verify the information contained in the information received
as indicated in this sub-clause (ii), and he has relied solely on such
information.
(h) Shareholder further represents and warrants that (i) his
financial condition is such that he can afford to bear the economic risk of
holding the Shares for an indefinite period of time and has adequate means for
providing for his current needs and personal contingencies, (ii) he can afford
to suffer a complete loss of his or her investment in the Shares, (iii) he
understands and has taken cognizance of all risk factors related to the purchase
of the Shares and (iv) his knowledge and experience in financial and business
matters are such that he is capable of evaluating the merits and risks of his
purchase of the Shares as contemplated by this Agreement.
(i) [FOR DIRECTORS/EXECUTIVE OFFICERS ONLY:] [If there is not
a public market for the Ordinary Shares, the "Fair Market Value Per Share" of
Shares subject to repurchase by the Company pursuant to Sections 5 and 6 shall
be the value determined as follows:
(i) in respect of a Section 6(a) Call Event, the
value determined by the Board in good faith;
(ii) in respect of any other repurchase by the
Company under Section 5 or 6, the value determined by the Board in good faith,
provided, that, if any applicable Shareholder Entities notify the Company in
writing no later than 20 days following receipt of notice from the Company of
such determination that they disagree with such determination, the value
determined in accordance with the following provisions (but, for avoidance of
doubt, for any applicable Shareholder Entities that do not so contest the
determination of the Board, the value determined by the Board shall apply):
(A) the Company and the contesting
Shareholder Entities shall, as soon as reasonably possible following receipt by
the Company of such notice, jointly select an independent investment bank of
internationally recognized standing (the "Appraiser") to determine the Fair
Market Value Per Share for such Shares taking into consideration any and all
factors that the Appraiser deems necessary or appropriate in connection with
such determination;
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(B) within 30 days of its selection and
appointment, the Appraiser shall determine and notify the Company and the
contesting Shareholder Entities in writing the Fair Market Value Per Share of
such Shares (such notice, an "Appraisal Notice"), which determination shall be
final, conclusive and binding on the Company and the contesting Shareholder
Entities for the purpose of the repurchase in question (but shall not be binding
on any other Person or for any other purpose whatsoever);
(C) the costs and expenses of the Appraiser
shall be borne by the Company, unless the Fair Market Value Per Share as
determined by the Appraiser is less than one hundred fifteen percent (115%) of
the price determined by the Board, in which case the costs and expenses of the
Appraiser shall be borne by the contesting Shareholder Entities (pro rata among
such contesting Shareholder Entities based on the number of Shares being
repurchased from them); and
(D) notwithstanding the foregoing
provisions, at any time prior to receipt of the applicable Appraisal Notice by
any of the Company and the contesting Shareholder Entities, the Company and all
of the contesting Shareholder Entities may agree in writing on the Fair Market
Value Per Share, which agreement shall be final, binding and conclusive on the
Company and the contesting Shareholder Entities for the purpose of the
repurchase in question (but shall not be binding on any other Person or for any
other purpose whatsoever).]
3. Transferability of Shares.
--------------------------
(a) Shareholder agrees that he will not transfer any of the
Shares at any time prior to the earlier of (x) the fifth anniversary of the date
of this Agreement and (y) the death or Permanent Disability of Shareholder (the
"Lapse Date"); provided, however, that Shareholder may transfer the Shares prior
to the Lapse Date pursuant to one of the following exceptions: (i) a transfer
permitted by clauses (x)(other than in respect of this Section 3), (y) or (z) of
Section 2(c); (ii) a sale of Shares pursuant to, but subject to the terms and
conditions of, Shareholder's registration rights under the Registration Rights
Agreement; (iii) a transfer of Shares pursuant to, but subject to the terms and
conditions of, Shareholder's "tag-along" rights under the Investors' Agreement;
or (iv) a transfer at any time after the completion date of the Initial Public
Offering until the Lapse Date of an aggregate number of Shares that (together
with Shares previously transferred pursuant to clause (ii), (iii) or clause
(iv)), as a percentage of the total number of Shares, including the number of
Shares underlying vested Options, held by the Shareholder Entities as of the
completion date of the Initial Public Offering prior to any transfers thereof
("Initial Holdings"), does not exceed 5% of the Initial Holdings of such
Shareholder Entities in any 12-month period.
(b) No transfer of Shares in violation hereof shall be made or
recorded on the books of the Company and any such transfer shall be void ab
initio and of no effect, provided, that if the Shares are transferred in
violation of this Agreement the purported transferee shall be bound by all of
the restrictions and burdens, but shall not be entitled to any of the rights or
benefits, in this Agreement.
(c) Shareholder acknowledges that it has been designated a
third party beneficiary under the Registration Rights Agreement in respect of
registration rights granted to "Company
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Holders" (as defined therein). In consideration of such designation, Shareholder
agrees to be bound by all terms and conditions of the Registration Rights
Agreement (a copy of which has been provided to Shareholder) applicable to
"Company Holders" thereunder. Notwithstanding anything in this Agreement or the
Registration Rights Agreement to the contrary, the maximum number of Registrable
Securities (as defined in the Registration Rights Agreement) that the
Shareholder Entities shall be entitled to request to have registered pursuant to
section 2(c) or section 3(a), as applicable, of the Registration Rights
Agreement will be equal to (i) the number of Shares then held by the Shareholder
Entities (including all Shares which the Shareholder Entities are then entitled
to acquire under an unexercised Option to the extent then exercisable),
multiplied by (ii) a fraction, the numerator of which is the number of
Registrable Securities being sold by the Investors and their respective
Transferees (as such terms are defined in the Registration Rights Agreement) and
the denominator of which is the aggregate number of Registrable Securities then
owned by Investors and their respective Transferees, subject, however, to the
maximum number of Registrable Securities that the Shareholder Entities (pro rata
based upon the aggregate number of Registrable Securities that the Shareholder
Entities and all Other Shareholders have requested to be registered) are
permitted to register in a given registration after giving effect to the
"cutback" provisions of the Registration Rights Agreement. Shareholder hereby
unconditionally appoints, and agrees to unconditionally appoint from time to
time, Christopher O'Kane (or, if he should not be serving as chief executive
officer of the Company, the then acting chief executive officer of the Company)
as "Company Holders' Representative" (as defined in the Registration Rights
Agreement) to act as its attorney and gives its power of attorney to such
attorney to receive notices and other communications and take decisions and
exercise approvals, consents and other rights, on behalf of Shareholder, under
or in connection with the Registration Rights Agreement.
(d) Shareholder acknowledges that it has been designated a
third party beneficiary under the Investors' Agreement in respect of certain
"tag-along" rights granted to "Management Shareholders" (as defined therein). In
consideration of such designation, Shareholder agrees to be bound by all terms
and conditions of the Investors' Agreement (a copy of which has been provided to
Shareholder) applicable to "Management Shareholders" thereunder. Notwithstanding
anything in this Agreement or the Investors' Agreement to the contrary, the
maximum number of Shares that the Shareholder Entities shall be entitled to
request to have included in a Tag-Along Sale (as defined in the Investors'
Agreement) will be equal to (i) the number of Shares then held by the
Shareholder Entities (including all Shares which the Shareholder Entities are
then entitled to acquire under an unexercised Option to the extent then
exercisable), multiplied by (ii) a fraction, the numerator of which is the
number of Shares being sold by the Investors and their respective Permitted
Transferees excluding, for avoidance of doubt, Permitted Distributees (as such
terms are defined in the Investors' Agreement) and the denominator of which is
the aggregate number of Shares then owned by Investors and their respective
Permitted Transferees excluding, for avoidance of doubt, Permitted Distributees,
subject, however, to the maximum number of shares that the Shareholder Entities
(pro rata based upon the aggregate number of Shares that the Shareholder
Entities and all Other Shareholders have requested to be included in such
Tag-Along Sale) are permitted to include in the Tag-Along Sale pursuant to the
Investors' Agreement. Shareholder hereby unconditionally appoints, and agrees to
unconditionally appoint from time to time, Christopher O'Kane (or, if he should
not be serving as chief executive officer of the Company, the then acting chief
executive officer of the
13
Company) as "Management Shareholders' Representative" (as defined in the
Investors' Agreement) to act as its attorney and gives its power of attorney to
such attorney to receive notices and other communications and take decisions and
exercise approvals, consents and other rights, on behalf of Shareholder, under
or in connection with the Investors' Agreement.
(e) This Section 3 shall terminate and be of no further force
or effect upon the occurrence of a Change in Control, provided, that the terms
of Sections 3(c) and 3(d) shall survive until Shareholder is no longer bound by
the Registration Rights Agreement and the Investors' Agreement, respectively, in
accordance with their respective terms.
4. Right of First Refusal.
-----------------------
(a) If, at any time after the Lapse Date and prior to the
completion date of the Initial Public Offering, the applicable Shareholder
Entities receive a bona fide offer to purchase any or all of his Shares (the
"Third Party Offer") from a third party (the "Offeror"), which applicable
Shareholder Entities wish to accept, such applicable Shareholder Entities shall
cause the Third Party Offer to be reduced to writing and shall notify the
Company in writing of his wish to accept the Third Party Offer. The applicable
Shareholder Entities' notice to the Company shall contain an irrevocable offer
to sell such Shares to the Company (in the manner set forth below) at a purchase
price equal to the price contained in, and on the same terms and conditions of,
the Third Party Offer, and shall be accompanied by a copy of the Third Party
Offer (which shall identify the Offeror). At any time within 30 days after the
date of the receipt by the Company of the applicable Shareholder Entities'
notice, the Company shall have the right and option to purchase, or to arrange
for a third party to purchase, all of the Shares covered by the Third Party
Offer pursuant to Section 4(b).
(b) The Company shall have the right and option to purchase,
or to arrange for a third party to purchase, all of the Shares covered by the
Third Party Offer at the same price and on substantially the same terms and
conditions as the Third Party Offer (or, if the Third Party Offer includes any
consideration other than cash, then at the sole option of the Company, at the
equivalent all-cash price, determined in good faith by the Board), by delivering
a certified bank check or checks in the appropriate amount (or by wire transfer
of immediately available funds, if the applicable Shareholder Entities provide
to the Company wire transfer instructions) (and any such non-cash consideration
to be paid) to the applicable Shareholder Entities at the principal office of
the Company against delivery of certificates or other instruments representing
the Shares so purchased, appropriately endorsed by the applicable Shareholder
Entities. If at the end of the 30-day period, the Company has not tendered the
purchase price for such Shares in the manner set forth above, the applicable
Shareholder Entities may, during the succeeding 30-day period, sell not less
than all of the Shares covered by the Third Party Offer, to the Offeror on terms
no less favorable to the applicable Shareholder Entities than those contained in
the Third Party Offer. Promptly after such sale, the applicable Shareholder
Entities shall notify the Company of the consummation thereof and shall furnish
such evidence of the completion and time of completion of such sale and of the
terms thereof as may reasonably be requested by the Company. If, at the end of
such succeeding 30-day period, the applicable Shareholder Entities have not
completed the sale of such Shares as aforesaid, the provisions of this Section 4
shall again be in effect with respect to such Shares.
14
(c) Notwithstanding anything in this Agreement to the
contrary, this Section 4 shall terminate and be of no further force or effect
upon the occurrence of a Change in Control.
5. Shareholder's Right to Put Shares to the Company following
----------------------------------------------------------
Death or Permanent Disability.
- ------------------------------
(a) Except as otherwise provided herein, if, prior to earlier
of the fifth anniversary of the date of this Agreement and the completion date
of the Initial Public Offering, the Employment of Shareholder is continuing and
Shareholder either dies or becomes Permanently Disabled, then the applicable
Shareholder Entities shall, for ninety (90) days (the "Put Period") following
the date of death or Permanent Disability, have the right (the "Put Option") to
sell to the Company, and the Company shall be required to purchase, on one
occasion, all of the Shares then held by the Shareholder Entities at a per Share
price equal to the Fair Market Value Per Share on the date of exercise of the
Put Option.
(b) In the event the applicable Shareholder Entities intend to
exercise the Put Option, the Shareholder Entities shall send written notice to
the Company, at any time during the Put Period, indicating their intention to
sell their Shares in exchange for the payment referred to in Section 5(a) and
indicating the number of Shares to be sold (the "Put Notice"). The closing of
the purchase shall take place at the principal office of the Company thirty (30)
days after receipt by the Company of the Put Notice, [FOR DIRECTORS/EXECUTIVE
OFFICERS ONLY: provided that, if the Fair Market Value Per Share is to be
determined by the Appraiser in accordance with Section 2(j), the closing of the
purchase (including the purchase of Shares of any Shareholder Entity that does
not contest the determination of Fair Market Value Per Share made by the Board)
shall occur 10 days after receipt by the Company and the contesting Shareholder
Entities of written notice of such determination by the Appraiser,] provided,
[further,] that, if such day is not a Business Day, the closing of the purchase
shall occur on the first Business Day thereafter (the "Put Closing Date"). The
purchase price to be paid for the Shares to be repurchased in accordance with
Section 5(a) shall be paid by delivery to the applicable Shareholder Entities on
the Put Date of a certified bank check or checks in the appropriate amount
payable to the order of the applicable Shareholder Entities (or, if the
Shareholder Entities provide to the Company wire transfer instructions, wire
transfer of immediately available funds), against delivery of certificates or
other instruments representing the Shares so repurchased appropriately endorsed
or executed by the applicable Shareholder Entities or any duly authorized
representative.
(c) Notwithstanding anything in this Section 5 to the contrary
and subject to Section 10(a), if (i) a default or an event of default on the
part of the Company or any of its Affiliates under any loan, guarantee or other
agreement under which the Company or such Affiliate has borrowed money is
continuing on the Put Closing Date and prohibits such repurchase or is
reasonably expected to result from such repurchase in the good faith
determination of the Board or (ii) a violation on the part of the Company under
the Companies Act (or, if the Company has reincorporated in another
jurisdiction, the business corporation law of such jurisdiction) or any other
applicable law or regulation is reasonably expected to result from such
repurchase in the good faith determination of the Board (each, a "Default
Event"), then the Company shall not be obligated to repurchase any of the Shares
from the applicable Shareholder Entities until the tenth (10th) Business Day
after the date no Default Event is continuing (the "Repurchase Eligibility
Date"). On the Repurchase Eligibility Date, the
15
Company shall purchase the number of Shares specified in the Put Notice at the
price referred to in Section 5(a), plus interest accrued on such amounts at the
Prime Rate from the Put Closing Date to (but not including) the Repurchase
Eligibility Date. In the event of a delay in payment of the purchase price for
the Shares under this Section 5(c), the Company will deliver a promissory note
(in a form to be mutually agreed) to the applicable Shareholder Entities to
evidence the obligation to pay such purchase price. The promissory note will
have a term not exceeding three (3) years. The Company may prepay the promissory
note at any time without premium or penalty.
(d) Notwithstanding anything in this Agreement to the
contrary, except for any payment obligation of the Company that has arisen prior
to such termination pursuant to this Agreement, this Section 5 shall terminate
and be of no further force or effect upon the occurrence of a Change in Control.
6. The Company's Option to Call Shares and Options upon
----------------------------------------------------
Certain Terminations of Employment.
- -----------------------------------
(a) Except as otherwise provided herein, if, prior to the
completion date of the Initial Public Offering, (i) Shareholder's Employment is
terminated for Cause by the Company or any of its Affiliates or (ii) the
beneficiaries of a Shareholder's Trust shall include any person or entity other
than Shareholder or any member of Shareholder's Immediate Family or Shareholder
shall otherwise effect a transfer of any of the Shares other than as permitted
by this Agreement (other than as may be required by applicable law or an order
of a court having competent jurisdiction) and such breach (after discovery
thereof) has not been cured within ten (10) calendar days following written
notice from the Company to Shareholder (a "Section 6(a) Call Event"):
(A) with respect to the Shares, the Company may
repurchase all (or part) of the Shares then held by the applicable Shareholder
Entities at a per Share purchase price equal to the lesser of (x) the issue
price per share of such Shares and (y) the Fair Market Value Per Share on the
date of the applicable Call Notice (such lesser price, the "Section 6(a) Call
Price"); and
(B) with respect to the Options, all Options (whether
or not then exercisable) held by the applicable Shareholder Entities will
terminate immediately without payment in respect thereof.
(b) Except as otherwise provided herein, if, prior to the
completion date of the Initial Public Offering, Shareholder's Employment is
terminated for any reason other than Cause by the Company or any of its
Affiliates (a "Section 6(b) Call Event"), then the Company may:
(A) with respect to the Shares, repurchase all (or
part) of the Shares then held by the applicable Shareholder Entities at a per
Share purchase price equal to the Fair Market Value Per Share on the date of the
applicable Call Notice (the "Section 6(b) Call Price"); and
(B) with respect to any outstanding Options, the
Company may repurchase all (or part) of the exercisable Options then held by the
applicable Shareholder
16
Entities ("Exercisable Options"; the number of Option Shares underlying such
Exercisable Options, the "Exercisable Option Shares"), for an amount equal to
the product of (x) the excess, if any, of the Fair Market Value Per Share on the
date of the applicable Call Notice over the Option Exercise Price (the "Option
Excess Price") and (y) the number of Exercisable Options Shares to be
repurchased pursuant to such Call Notice. In the event the Option Excess Price
is zero or a negative number, all outstanding exercisable Options shall
automatically terminate without any payment in respect thereof.
(c) The Company shall have a period of ninety (90) days
following the date of any Call Event in which to give written notice to
Shareholder of the Company's election to exercise its rights and obligations
pursuant to this Section 6 (the "Call Notice"), indicating the number of Shares
(the "Called Shares") and Options (the "Called Options") subject to the Call
Notice and indicating the Call Price and the Option Excess Price on the date of
the Call Notice. The closing of a purchase pursuant to this Section 6 shall take
place at the principal office of the Company thirty (30) days after the date of
the Call Notice, [FOR DIRECTORS/EXECUTIVE OFFICERS ONLY: provided that, in
connection with a Section 6(b) Call Event, if the Fair Market Value Per Share is
to be determined by the Appraiser in accordance with Section 2(j), the closing
of the purchase (including the purchase of Shares of any Shareholder Entity that
does not contest the determination of Fair Market Value Per Share made by the
Board) shall occur 10 days after receipt by the Company and the contesting
Shareholder Entities of written notice of such determination by the Appraiser,]
provided, [further,] that, if such day is not a Business Day, the closing of the
purchase shall occur on the first Business Day thereafter (the "Call Closing
Date"). The applicable purchase price for the Called Shares and the payment with
respect to any Called Options to be repurchased in accordance with this Section
6 shall be paid by delivery to the applicable Shareholder Entities on the Call
Closing Date of a certified bank check or checks in the appropriate amount
payable to the order of the applicable Shareholder Entities (or, if the
Shareholder Entities provide to the Company wire transfer instructions, wire
transfer of immediately available funds), against delivery of certificates or
other instruments representing the Called Shares so repurchased and appropriate
documents canceling any Called Options so repurchased, in each case,
appropriately endorsed or executed by the applicable Shareholder Entities or any
duly authorized representative.
(d) Notwithstanding any other provision of this Section 6 to
the contrary and subject to Section 10(a), if a Default Event exists on the Call
Closing Date for a Section 6(a) Call Event, the Company may delay the repurchase
of any of the Called Shares from the applicable Shareholder Entities until the
Repurchase Eligibility Date. On the Repurchase Eligibility Date, the Company
shall purchase each Called Share at the Call Price, plus interest accrued on
such amounts at the Prime Rate from the Call Closing Date to (but not including)
the Repurchase Eligibility Date. In the event of a delay in payment of the
purchase price for the Called Shares under this Section 6(d), the Company will
deliver a promissory note (in a form to be mutually agreed) to the applicable
Shareholder Entities to evidence the obligation to pay such purchase price. The
promissory note will have a term not exceeding three (3) years. The Company may
prepay the promissory note at any time without premium or penalty.
(e) Notwithstanding anything in this Agreement to the
contrary, this Section 6 shall terminate and be of no further force or effect
upon the occurrence of a Change in Control.
17
7. Adjustment of Repurchase Price.
-------------------------------
In determining the applicable purchase price of Shares or
Options, as provided for in Sections 5 and 6 above, appropriate adjustments
shall be made for any stock splits, reverse stock split, stock dividend,
reclassifications, recapitalizations or any other adjustment in the number of
outstanding Shares in order to maintain, as nearly as practicable, the intended
operation of the provisions of Sections 5 and 6.
8. Shares Issued to Shareholder Upon Exercise of Options.
------------------------------------------------------
The Company may from time to time grant to Shareholder, in
addition to the Options, options under the Plan (or another arrangement) to
purchase Ordinary Shares at any exercise price.
9. The Company's Representations, Warranties and Agreements.
---------------------------------------------------------
(a) The Company represents and warrants to Shareholder that
(i) this Agreement has been duly authorized, executed and delivered by the
Company and is enforceable against the Company in accordance with its terms and
(ii) the Shares, when issued and delivered in accordance with the terms hereof,
will be duly and validly issued, fully paid and nonassessable.
(b) If the Company becomes subject to the reporting
requirements of Section 12 of the Exchange Act, the Company will file the
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations thereunder, to the extent required from time
to time to enable Shareholder to sell Shares without registration under the
Securities Act within the limitations of the exemptions provided by Rule 144,
subject to the transfer restrictions set forth in Section 3. Notwithstanding
anything contained in this Section 9(b), the Company may de-register under
Section 12 of the Exchange Act if it is then permitted to do so pursuant to the
Exchange Act and the rules and regulations thereunder and, in such
circumstances, shall not be required hereby to file any reports which may be
necessary in order for Rule 144 to be available. Nothing in this Section 9(b)
shall be deemed to limit in any manner the restrictions on sales of Shares
contained in this Agreement.
(c) The Company shall maintain a current list of the Other
Shareholders and Shareholder shall be entitled to obtain a copy thereof on
reasonable prior written request delivered to Company, provided, however, that
such list shall be treated as confidential information in accordance with the
terms and/or duties of Shareholder's Employment.
10. Pro Rata Repurchases; Dividends.
--------------------------------
(a) Notwithstanding anything to the contrary contained in
Section 5 or 6, if the consummation of any purchase or payment to be made by the
Company pursuant to Section 5 or 6(a) or the analogous provisions of any Other
Shareholders' Agreements would result in a Default Event, then the Company shall
make purchases from, and payments to, Shareholder and the Other Shareholders pro
rata (on the basis of the proportion of the number of Shares such Shareholder
and all Other Shareholders have elected or are required to sell to the Company)
for the maximum number of Shares permitted without resulting in a Default Event
(the "Maximum
18
Repurchase Amount"). The provisions of Section 5(c) and 6(d) shall apply to any
delay in payment in respect of Shares due to the limits imposed by the Maximum
Repurchase Amount under this Section 10(a). Until all of such Shares are paid
for by the Company, Shareholder and the Other Shareholders whose Shares are not
purchased in accordance with this Section 10(a) shall have priority, on a pro
rata basis, over other purchases of Shares by the Company pursuant to this
Agreement and Other Shareholders' Agreements.
(b) No dividends on the Ordinary Shares are expected to be
paid by the Company prior to the Initial Public Offering. In the event any
dividends are paid with respect to the Ordinary Shares, Shareholder will be
treated in the same manner as all other holders of Ordinary Shares, subject to
the terms of the Plan.
11. Rights to Negotiate Repurchase Price.
-------------------------------------
Nothing in this Agreement shall be deemed to restrict or
prohibit the Company from purchasing, redeeming or otherwise acquiring for value
Shares or Options from Shareholder, at any time, upon such terms and conditions,
and for such price, as may be mutually agreed upon between the Parties, whether
or not at the time of such purchase, redemption or acquisition circumstances
exist which specifically grant the Company the right to purchase Shares or any
Options under the terms of this Agreement, provided, that no such purchase,
redemption or acquisition shall be consummated, and no agreement with respect to
any such purchase, redemption or acquisition shall be entered into, without the
prior written consent of the Board.
12. Notice of Change of Beneficiary.
--------------------------------
Immediately prior to any transfer of Shares to a Shareholder's Trust,
Shareholder shall provide the Company with a copy of the instruments creating
the Shareholder's Trust and with the identity of the beneficiaries of the
Shareholder's Trust, together with the contact details for the Shareholder's
Trust for the purposes of notices under this Agreement. Shareholder shall notify
the Company as soon as practicable prior to any change in the identity of any
beneficiary of the Shareholder's Trust.
13. Recapitalizations, etc.
-----------------------
The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Shares or the Options, to any and
all capital stock of the Company or any capital stock, partnership units or any
other security evidencing ownership interests in any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or substitution of the Shares or
the Options, by reason of any stock dividend, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise.
14. Shareholder's Employment by the Company.
----------------------------------------
Nothing contained in this Agreement or in any other agreement
entered into by the Company and Shareholder contemporaneously with the execution
of this Agreement (i)
19
obligates the Company or any of its Affiliates to employ Shareholder in any
capacity whatsoever or (ii) prohibits or restricts the Company or any of its
Affiliates from terminating the Employment of Shareholder at any time or for any
reason whatsoever, with or without Cause, and Shareholder hereby acknowledges
and agrees that neither the Company nor any other person has made any
representations or promises whatsoever to Shareholder concerning Shareholder's
Employment or continued Employment.
15. Termination of Subscription Agreement; Survival of Certain
----------------------------------------------------------
Covenants.
- ----------
[FOR MYNERS, O'KANE, CUSACK, DAVIES, MAY: The Company and
Shareholder hereby acknowledge that the Investors' Agreement has amended and
restated the Subscription and Shareholders' Agreement and, as a result, the
covenants of Shareholder under clauses 6.2 through 6.6 (Non-Compete
Undertakings) of the Subscription and Shareholders' Agreement no longer are
contained in the Investors' Agreement. In consideration of the Company's
representations, warranties and agreements in this Agreement, Shareholder agrees
that the provisions of clauses 6.2 though 6.6 (Non-Compete Undertakings) and, in
respect of such provisions only, clause 18 (Governing Law and Jurisdiction) in
the Subscription and Shareholders' Agreement shall remain in full force and
effect in accordance with their terms as between the Company and Shareholder and
shall be incorporated by reference and form a part of this Agreement as if set
out in full herein.]
[FOR ROSENTHAL, HUTTER, CORMACK, KEELING: The Company and
Shareholder hereby agree that the Share Subscription Agreement hereby is
terminated, provided that, notwithstanding anything in the Share Subscription
Agreement to the contrary, in consideration of the Company's representations,
warranties and agreements in this Agreement, Shareholder agrees that the
provisions of paragraph 7 (Confidentiality) and, in respect of such provisions
only, paragraph 12 (Governing Law and Jurisdiction) in the Share Subscription
Agreement shall survive such termination and shall remain in full force and
effect in accordance with their terms as between the Company and Shareholder and
shall be incorporated by reference and form a part of this Agreement as if set
out in full herein.]
[FOR ALL OTHERS: The Company and Shareholder hereby agree that
the Share Subscription Agreement hereby is terminated, provided that,
notwithstanding anything in the Share Subscription Agreement to the contrary, in
consideration of the Company's representations, warranties and agreements in
this Agreement, Shareholder agrees that the provisions of paragraphs 4
(Non-Compete Undertakings) and 7 (Confidentiality) and, in respect of such
provisions only, paragraph 12 (Governing Law and Jurisdiction) in the Share
Subscription Agreement shall survive such termination and shall remain in full
force and effect in accordance with their terms as between the Company and
Shareholder and shall be incorporated by reference and form a part of this
Agreement as if set out in full herein.]
16. Binding Effect.
---------------
The provisions of this Agreement shall be binding upon and
accrue to the benefit of the Company and its successors and assigns. The
provisions of this Agreement shall not be binding upon or accrue to the benefit
of the heirs, legal representatives, successors or assigns of
20
Shareholder other than to any transferee described in, but subject to the terms
and conditions of, clause (y) or (z) under Section 2(c).
17. Amendment; Waiver.
------------------
This Agreement may be amended only by a written instrument
signed by the Parties and may not be amended or modified in any event without
the prior written approval of the Board. Any failure of either Party to comply
with any representation, warranty, obligation, covenant, agreement or condition
contained in this Agreement may be waived by the other Party, provided, that
such waiver shall be valid only if set forth in an instrument in writing signed
on behalf of such Party, provided, further, that any such waiver of or failure
to insist on strict compliance with any such representation, warranty,
obligation, covenant, agreement or condition shall not operate as a waiver of
any subsequent or other failure.
18. Applicable Law; Jurisdiction; Arbitration; Legal Fees.
------------------------------------------------------
(a) The laws of Bermuda shall govern the interpretation,
validity and performance of the terms of this Agreement, regardless of the law
that might be applied under principles of conflicts of law.
(b) In the event of any controversy among the Parties arising
out of, or relating to, this Agreement which cannot be settled amicably by the
parties, such controversy shall be finally, exclusively and conclusively settled
by mandatory arbitration conducted expeditiously in accordance with the American
Arbitration Association rules, by a single independent arbitrator. If the
Parties are unable to agree on the selection of an arbitrator, then any Party
may petition the American Arbitration Association for the appointment of the
arbitrator, which appointment shall be made within ten (10) days of the petition
therefor. Either Party may institute such arbitration proceeding by giving
written notice to the other Party. A hearing shall be held by the arbitrator in
New York, London or Bermuda as agreed by the Parties (or, failing such
agreement, in Bermuda) within thirty (30) days of his or her appointment. The
decision of the arbitrator shall be final and binding upon all Parties and shall
be rendered pursuant to a written decision that contains a detailed recital of
the arbitrator's reasoning. Judgment upon the award rendered may be entered in
any court having jurisdiction thereof.
19. Assignability of Certain Rights by the Company.
-----------------------------------------------
The Company shall have the right to assign any or all of its
rights or obligations to purchase Shares pursuant to Sections 4, 5 and 6 hereof;
provided, however, that the Company shall remain obligated to perform its
obligations notwithstanding such assignment in the event that such assignee
fails to perform the obligations so assigned to it.
20. Withholding Taxes.
------------------
The Company shall have the right to deduct from any cash
payment made under this Agreement to the applicable Shareholder Entities any
applicable income or other taxes required by law to be withheld with respect to
such payment.
21
21. Notices.
--------
Any notice or other communication under or in connection with
this Agreement shall be in writing and shall be delivered (i) personally, or
(ii) by first class post in a pre-paid envelope, (iii) by fax, or (iv) by email,
to the party due to receive the notice or communication at its address, fax
number or email address set out or described below, or such other address, fax
number or email address as a party may specify by notice in writing to the
others in accordance with this clause:
If to the Company, to:
Aspen Insurance Holdings Limited
Victoria Hall
11 Victoria Street
Hamilton HM11 Bermuda
Attention: Julian Cusack
Fax: +1 441 295 1829
Email: julian.cusack@aspen.bm
----------------------
If to Shareholder, at such Shareholder's address, fax number
or email address as set forth below under Shareholder's signature.
In the absence of evidence of earlier receipt, any notice or
other communication shall be deemed to have been duly given: (i) if delivered
personally, when left at the address referred to above; (ii) if sent by mail
other than air mail, five Business Days after posting such notice; (iii) if sent
by air mail, two Business Days after posting such; (iv) if sent by fax on a
Business Day between the hours of 9 a.m. and 5 p.m. (local time at the
recipient's address), when confirmation of its transmission has been recorded by
the sender's fax machine, and if sent at any other time, if confirmation of its
transmission has been recorded by the sender's fax machine, at 9 a.m. on the
next succeeding Business Day; or (v) if sent by email on a Business Day between
the hours of 9 a.m. and 5 p.m. (local time at the recipient's address), one hour
after transmission, and if sent at any other time, at 9 a.m. on the next
succeeding Business Day, unless, in either case, the sender receives a return
message within three hours after transmission indicating that the email has not
been delivered to the intended recipient (including any message that the
intended recipient is "out of the office" or otherwise unavailable), unless the
sender confirms by telephone directly with the intended recipient his or her
receipt of the email.
22. Miscellaneous.
--------------
(a) If any court of competent jurisdiction shall declare any
provision of this Agreement illegal, void or unenforceable, the other provisions
shall not be affected, but shall remain in full force and effect.
(b) This Agreement, together with the Registration Rights
Agreement and the Investors' Agreement, constitutes the entire agreement among
the Parties with respect to the subject matter hereof and supercedes all other
prior agreements and understandings, both written and oral, or any of them.
22
(c) The headings in this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(d) This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
23
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
ASPEN INSURANCE HOLDINGS LIMITED
By:
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Name:
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Title:
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SHAREHOLDER:
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[NAME]
Address:
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Fax Number:
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Email Address:
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