Exhibit 10.6
ARCH CAPITAL GROUP LTD.
Restricted Share Agreement
THIS AGREEMENT, dated on November 19, 2001, between Arch Capital Group Ltd.
(the "Company"), a Bermuda company, and Robert Clements (the "Executive").
WHEREAS, the Executive has been granted the following award as compensation
for services to be rendered;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows.
1. Award of Shares. The Executive is hereby awarded 21,472 shares of
restricted common stock of the Company (the "Award"), subject to the terms and
conditions herein set forth. This Award shall be rescinded if it is not approved
by shareholders prior to the first anniversary hereof.
2. Terms and Conditions. It is understood and agreed that the Award
evidenced hereby is subject to the following additional terms and conditions:
(a) Vesting of Award. Subject to Section 2(b) below and the other terms and
conditions of this Agreement, this Award shall become vested in five equal
annual installments, beginning on the first anniversary of October 23, 2001.
Notwithstanding the foregoing, if the service of the Executive as Chairman of
the Board of the Company is terminated by the Company or is not continued by the
Company for any reason, or the Executive's service terminates due to his death
or Permanent Disability, then the Award shall become immediately vested in full
upon such termination of service. "Permanent Disability" means those
circumstances where the Executive is unable to continue to perform the usual
customary duties of his assigned job for a period of six (6) months in any
twelve (12) month period because of physical, mental or emotional incapacity
resulting from injury, sickness or disease. Any questions as to the existence of
a Permanent Disability shall be determined by a qualified, independent physician
selected by the Company and approved by the Executive (which approval shall not
be unreasonably withheld). The determination of any such physician shall be
final and conclusive for all purposes of this Agreement.
(b) Termination of Service; Forfeiture of Unvested Shares. Except as
otherwise set forth in Section 2(a) above, in the event the Executive terminates
his service with the Company (other than due to his death or Permanent
Disability or the failure of the Company to continue his service) prior to the
date of vesting of an installment of the Award, the unvested installments shall
be forfeited by the Executive and become the property of the Company. For
purposes of this Agreement, service with any of the Company's wholly owned
subsidiaries shall be considered to be service with the Company.
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(c) Certificates. Each certificate issued in respect of an Award made
hereunder shall be dated the date hereof and deposited with the Company, or its
designee, together with, if requested by the Company, a stock power executed in
blank by the Executive, and shall bear a legend disclosing the restrictions on
transferability imposed on such Award by this Agreement (the "Restrictive
Legend"). Upon the vesting of the Award pursuant to Section 2(a) hereof, the
certificates evidencing such vested Shares, not bearing the Restrictive Legend,
shall be delivered to the Executive.
(d) Rights of a Stockholder. Prior to the time an Award is fully vested
hereunder, except as set forth in Section 2(e) below, the Executive shall have
no right to transfer, pledge, hypothecate or otherwise encumber such Award.
Beginning on the date hereof and during such period, the Executive shall have
all other rights of a stockholder, including, but not limited to, the right to
vote and to receive dividends at the time paid on such Award.
(e) Transferability. Except as set forth below, prior to vesting this Award
shall not be transferable by the Executive except by will or the laws of descent
and distribution. Notwithstanding the foregoing, if the Board of Directors
provides its consent (which consent shall not be unreasonably withheld), the
Award (or any part thereof) may be transferred by the Executive to members of
his or her "immediate family" or to a trust or other entity established for the
exclusive benefit of solely one or more members of the Executive's "immediate
family" or the Executive. Any Award held by the transferee will continue to be
subject to the same terms and conditions that were applicable to the Award
immediately prior to the transfer, except that the Award will be transferable by
the transferee only by will or the laws of descent and distribution. For
purposes hereof, "immediate family" means the Executive's children,
stepchildren, grandchildren, great grandchildren, parents, stepparents,
grandparents, spouse, siblings (including half brothers and sisters), in-laws,
and relationships arising because of legal adoption.
3. Noncompetition. The Executive acknowledges that during his service with
the Company, he will become familiar with trade secrets and other confidential
information concerning the Company and that his services will be of special,
unique and extraordinary value to the Company. In addition, the Executive hereby
agrees that, in the event his service with the Company is terminated by the
Company prior to the fifth anniversary of October 23, 2001, during the period
ending on the later of the fifth anniversary of October 23, 2001 or one year
following the date of his termination by the Company, he will not, without the
Company's written consent, directly or indirectly manage, participate in, or
render services for any business competing with the businesses of the Company or
its subsidiaries as such businesses exist or are in process as of the date of
termination, within any geographical area in which the Company or its
subsidiaries engage in such businesses.
4. Enforcement. If, at the enforcement of Section 3, a court holds that the
duration, scope or area restrictions stated herein are unreasonable under
circumstances then existing, the parties agree that the maximum duration, scope
or area reasonable
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under such circumstances will be substituted for the stated duration, scope or
area and that the court will be permitted to revise the restrictions contained
in Section 3 to cover the maximum duration, scope and area permitted by law.
5. Transfer of Shares. The vested shares delivered hereunder, or any
interest therein, may be sold, assigned, pledged, hypothecated, encumbered, or
transferred or disposed of in any other manner, in whole or in part, only in
compliance with the terms, conditions and restrictions as set forth in the
governing instruments of the Company, applicable United States federal and state
securities laws or any other applicable laws or regulations and the terms and
conditions hereof.
6. Antidilution. In the event that the Board of Directors of the Company
shall determine that any dividend in shares, recapitalization, share split,
reverse split, reorganization, merger, consolidation, spin-off, combination,
repurchase, or share exchange, or other similar corporate transaction or event,
affects the Company common stock such that an adjustment is appropriate in order
to prevent dilution or enlargement of the rights of the Executive hereunder,
then the Board of Directors of the Company shall make such equitable changes or
adjustments as are appropriate and adjust any or all of the number and kind of
shares, other securities or other consideration issued or issuable in respect of
this Award.
7. Expenses of Issuance of Shares. The issuance of stock certificates
hereunder shall be without charge to the Executive. The Company shall pay, and
indemnify the Executive from and against any issuance, stamp or documentary
taxes (other than transfer taxes) or charges imposed by any governmental body,
agency or official (other than income taxes) or by reason of the issuance of
shares hereunder.
8. References. References herein to rights and obligations of the Executive
shall apply, where appropriate, to the Executive's legal representative or
estate without regard to whether specific reference to such legal representative
or estate is contained in a particular provision of this Agreement.
9. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or by courier, or sent by certified or registered mail,
postage prepaid, return receipt requested, duly addressed to the party concerned
at the address indicated below or to such changed address as such party may
subsequently by similar process give notice of:
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If to the Company:
Arch Capital Group Ltd.
Executive Offices:
20 Horseneck Lane
Greenwich, CT 06830
Attn.: Secretary
If to the Executive: To the last address given to the Company by the
Executive in the manner set forth in this Section 9.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Bermuda, without giving effect to principles of
conflict of laws.
11. Entire Agreement. This Agreement constitutes the entire agreement among
the parties relating to the subject matter hereof, and any previous agreement or
understanding among the parties with respect thereto is superseded by this
Agreement.
12. Counterparts. This Agreement may be executed in two counterparts, each
of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
ARCH CAPITAL GROUP LTD.
By: /s/ Peter A. Appel
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Name: Peter A. Appel
Title: President and Chief Executive
Officer
/s/ Robert Clements
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Robert Clements