EXHIBIT 4(e)
FORM OF RSU AWARD AGREEMENT
TRANSATLANTIC HOLDINGS, INC.
2003 STOCK INCENTIVE PLAN
RSU AWARD AGREEMENT
This award agreement (this "AWARD AGREEMENT") sets forth the terms and
conditions of an award (this "AWARD") of restricted stock units ("RSUS")
granted to you under the Transatlantic Holdings, Inc. 2003 Stock Incentive
Plan (the "Plan").
1. The Plan. This Award is made pursuant to the Plan, the terms of which
are incorporated in this Award Agreement. Capitalized terms used in this
Award Agreement that are not defined in this Award Agreement, or in the
attached Glossary of Terms, have the meanings as used or defined in the
Plan.
2. Award. The number of RSUs subject to this Award is set forth at
the end of this Award Agreement. Each RSU constitutes an unfunded and
unsecured promise of TRH to deliver (or cause to be delivered) to you,
subject to the terms of this Award Agreement, one share of Common Stock
(the "SHARE" or the "SHARES" as the context requires) (or cash equal to the
Fair Market Value thereof) on the Delivery Date as provided herein. Until
such delivery, you have only the rights of a general unsecured creditor,
and no rights as a shareholder, of TRH. THIS AWARD IS SUBJECT TO ALL TERMS,
CONDITIONS AND PROVISIONS OF THE PLAN AND THIS AWARD AGREEMENT, INCLUDING,
WITHOUT LIMITATION, THE ARBITRATION AND CHOICE OF FORUM PROVISIONS SET
FORTH IN PARAGRAPH 14.
3. Vesting and Delivery.
(a) Vesting. Except as provided in this Paragraph 3 and in Paragraphs 4 and
6, you shall become vested in the RSUs, and the Shares underlying the RSUs
shall be delivered, on the fourth anniversary of the Date of Grant
specified at the end of this Award Agreement (the "VESTING DATE"). Unless
the Committee determines otherwise, and except as provided in Paragraph 6,
if your Employment terminates for any reason prior to the Vesting Date,
your rights in respect of all of your RSUs shall terminate, and no Shares
(or cash) shall be delivered in respect of such RSUs.
(b) Delivery. Except as provided in this Paragraph 3 and in Paragraphs 4,
6, 8 and 9, the Shares underlying the RSUs shall be delivered on the
Delivery Date. The Company may, at its option, deliver cash in lieu of all
or any portion of the Shares otherwise deliverable on the Delivery Date
specified at the end of this Award Agreement. Such cash payment shall equal
the product of the number of Shares to be delivered on the Delivery Date
and the Fair Market Value of one Share of Common Stock on the Delivery
Date. You shall be deemed the beneficial owner of the Shares at the close
of business on the Delivery Date and shall be entitled to any dividend or
distribution that has not already been made with respect to such Shares if
the record date for such dividend or distribution is after the close of
business on the Delivery Date. Notwithstanding the foregoing, if the
Delivery Date occurs at a time when you are considered by TRH to be one of
its "covered employees" within the meaning of Section 162(m) of the Code,
then, unless the Committee determines otherwise, delivery of the Shares (or
cash) automatically shall be deferred until after you have ceased to be
such a covered employee.
(c) Death. Notwithstanding any other provision of this Award Agreement, if
you die prior to the Delivery Date, and provided your rights in respect of
your RSUs have not previously terminated, the Shares (or cash in lieu of
all or any part thereof) corresponding to your outstanding RSUs shall be
delivered to the representative of your estate as soon as practicable after
the date of death and after such documentation as may be requested by the
Committee is provided to the Committee.
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4. Termination of RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as provided in
Paragraphs 3(c) and 6, your rights in respect of your outstanding RSUs
shall immediately terminate, and no Shares (or cash) shall be delivered in
respect of such unvested RSUs, if at any time prior to the Vesting Date
your Employment with the Company terminates for any reason, or you are
otherwise no longer actively Employed by the Company.
(b) Unless the Committee determines otherwise, and except as provided in
Paragraph 6, your rights in respect of all of your RSUs (whether or not
vested) shall immediately terminate, and no Shares (or cash) shall be
delivered in respect of such RSUs, if at any time prior to the Delivery
Date:
(i) you attempt to have any dispute under this Award Agreement or the Plan
resolved in any manner that is not provided for by Paragraph 14; or
(ii) any event that constitutes Cause has occurred; or
(iii) you in any manner, directly or indirectly, (A) Solicit any Client to
transact business with a Competitive Enterprise or to reduce or refrain
from doing any business with the Company or (B) interfere with or damage
(or attempt to interfere with or damage) any relationship between the
Company and any such Client or (C) Solicit any person who is an employee of
the Company to resign from the Company or to apply for or accept employment
with any Competitive Enterprise; or
(iv) you fail to certify to TRH, in accordance with procedures established
by the Committee, with respect to the Delivery Date that you have complied,
or the Committee determines that you have failed as of the Delivery Date to
comply, with all of the terms and conditions of this Award Agreement. By
accepting the delivery of Shares (or cash) under this Award Agreement, you
shall be deemed to have represented and certified at such time that you
have complied with all the terms and conditions of this Award Agreement.
(c) Unless the Committee determines otherwise, if the Delivery Date in
respect of any of your outstanding RSUs occurs, and Shares (or cash) with
respect to such outstanding RSUs would be deliverable under the terms and
conditions of this Award Agreement, except that you have not complied with
the conditions or your obligations under Paragraph 4(b)(iv), all of your
rights with respect to your outstanding RSUs shall terminate no later than
the Delivery Date for such Shares.
5. Repayment. If, following the delivery of Shares (or cash), the Committee
determines that all terms and conditions of this Award Agreement in respect
of such delivery were not satisfied, the Company shall be entitled to
receive, and you shall be obligated to pay the Company immediately upon
demand therefore, the Fair Market Value of the Shares (determined as of the
Delivery Date) and the amount of cash (to the extent that cash was
delivered in lieu of Shares) delivered with respect to the Delivery Date,
without reduction for any Shares (or cash) applied to satisfy withholding
tax or other obligations in respect of such Shares (or cash).
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6. Disability and Retirement.
(a) Notwithstanding any other provision of this Award Agreement, but
subject to Paragraph 6(b), if your Employment with the Company is
terminated by reason of Disability or Retirement, the condition set forth
in Paragraph 4(a) shall be waived with respect to your then outstanding
unvested RSUs (as a result of which any such then unvested outstanding RSUs
shall vest), but all other conditions of this Award Agreement shall
continue to apply.
(b) Without limiting the application of Paragraph 4(b) or Paragraph 4(c),
your rights in respect of any outstanding RSUs that become vested solely by
reason of Paragraph 6(a) immediately shall terminate, and no Shares (or
cash) shall be delivered in respect of such outstanding RSUs if, following
the termination of your Employment with the Company by reason of Disability
or Retirement and prior to the Delivery Date, you (i) form, or acquire a 5%
or greater equity ownership, voting or profit participation interest in,
any Competitive Enterprise or (ii) associate in any capacity (including,
but not limited to, association as an officer, employee, partner, director,
consultant, agent or advisor) with any Competitive Enterprise.
7. Non-transferability. Except as otherwise may be provided by the
Committee, the limitations set forth in Section 3.4 of the Plan shall
apply. Any assignment in violation of the provisions of this Paragraph 7
shall be null and void.
8. Withholding, Consents and Legends.
(a) The delivery of Shares is conditioned on your satisfaction of any
applicable withholding taxes (in accordance with Section 3.2 of the Plan).
(b) Your rights in respect of your RSUs are conditioned on the receipt to
the full satisfaction of the Committee of any required consents (as defined
in Section 3.3 of the Plan) that the Committee may determine to be
necessary or advisable (including, without limitation, your consenting to
deductions from your wages, or another arrangement satisfactory to the
Committee, to reimburse the Company for advances made on your behalf to
satisfy withholding and other tax obligations in connection with this
Award).
(c) TRH may affix to Certificates representing Shares issued pursuant to
this Award Agreement any legend that the Committee determines to be
necessary or advisable (including to reflect any restrictions to which you
may be subject under a separate agreement with TRH). TRH may advise the
transfer agent to place a stop transfer order against any legended ▇▇▇▇▇▇.
9. Right of Offset. The Company shall have the right to offset against the
obligation to deliver Shares (or cash) under this Award Agreement any
outstanding amounts (including, without limitation, travel and
entertainment or advance account balances, loans, or amounts repayable to
the Company pursuant to tax equalization, housing, automobile or other
employee programs) you then owe to the Company and any amounts the
Committee otherwise deems appropriate.
10. No Rights to Continued Employment. Nothing in this Award Agreement or
the Plan shall be construed as giving you any right to continued Employment
by the Company or affect any right that the Company may have to terminate
or alter the terms and conditions of your Employment.
11. Successors and Assigns of TRH. The terms and conditions of this Award
Agreement shall be binding upon, and shall inure to the benefit of, TRH and
its successor entities (as defined in Section 3.6 of the Plan.
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12. Committee Discretion. The Committee shall have full discretion with
respect to any actions to be taken or determinations to be made in
connection with this Award Agreement, and its determinations shall be
final, binding and conclusive.
13. Amendment. The Committee reserves the right at any time to amend the
terms and conditions set forth in this Award Agreement, and the Board may
amend the Plan in any respect; provided, that, notwithstanding the
foregoing and Sections 1.3.1(i), 1.3.1(ii) and 3.1 of the Plan, no such
amendment shall materially adversely affect your rights and obligations
under this Award Agreement without your consent, except that the Committee
reserves the right to accelerate the delivery of the Shares and in its
discretion provide that such Shares may not be transferable until the
Delivery Date on which such Shares otherwise would have been delivered (and
that in respect of such Shares you may remain subject to the repayment
obligations of Paragraph 5 in the circumstances under which the Shares
would not have been delivered pursuant to Paragraph 4 or Paragraph 6). Any
amendment of this Award Agreement shall be in writing signed by an
authorized member of the Committee or a person or persons designated by the
Committee.
14. Arbitration; Choice of Forum.
(a) Any dispute, controversy or claim between the Company and you, arising
out of or relating to or concerning the Plan or this Award Agreement, shall
be finally settled by arbitration in New York City before, and in
accordance with the rules then obtaining of, the New York Stock Exchange,
Inc. (the "NYSE") or, if the NYSE declines to arbitrate the matter (or if
the matter otherwise is not arbitrable by it), the American Arbitration
Association (the "AAA") in accordance with the commercial arbitration rules
of the AAA. Prior to arbitration, all claims maintained by you must first
be submitted to the Committee in accordance with claims procedures
determined by the Committee. This Paragraph is subject to the provisions of
Paragraphs 14(b) and (c) below.
(b) THE COMPANY AND YOU HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE CITY OF NEW YORK
OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO OR
CONCERNING THE PLAN OR THIS AWARD AGREEMENT THAT IS NOT OTHERWISE
ARBITRATED OR RESOLVED ACCORDING TO PARAGRAPH 14(A) OF THIS AWARD
AGREEMENT. This includes any suit, action or proceeding to compel
arbitration or to enforce an arbitration award. The Company and you
acknowledge that the forum designated by this Paragraph 14(b) has a
reasonable relation to the Plan, this Award Agreement, and to your
relationship with the Company. Notwithstanding the foregoing, nothing
herein shall preclude the Company from bringing any action or proceeding in
any other court for the purpose of enforcing the provisions of this
Paragraph 14.
(c) The agreement by you and the Company as to forum is independent of the
law that may be applied in the action, and you and the Company agree to
such forum even if the forum may under applicable law choose to apply
non-forum law. You and the Company hereby waive, to the fullest extent
permitted by applicable law, any objection which you or the Company now or
hereafter may have to personal jurisdiction or to the laying of venue of
any such suit, action or proceeding in any court referred to in Paragraph
14(b). You and the Company undertake not to commence any action, suit or
proceeding arising out of or relating to or concerning this Award Agreement
in any forum other than a forum described in this Paragraph 14. You and
(subject to the last sentence of Paragraph 14(a)) the Company agree that,
to the fullest extent permitted by applicable law, a final and
non-appealable judgment in any such suit, action or proceeding in any such
court shall be conclusive and binding upon you and the Company.
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(d) You irrevocably appoint the Secretary of TRH as your agent for service
of process in connection with any action, suit or proceeding arising out of
or relating to or concerning this Award Agreement which is not arbitrated
pursuant to the provisions of Paragraph 14(a), who shall promptly advise
you of any such service of process.
(e) You hereby agree to keep confidential the existence of, and any
information concerning, a dispute described in this Paragraph 15, except
that you may disclose information concerning such dispute to the arbitrator
or court that is considering such dispute or to your legal counsel
(provided that such counsel agrees not to disclose any such information
other than as necessary to the prosecution or defense of the dispute).
(f) You recognize and agree that prior to the grant of this Award you have
no right to any benefits hereunder. Accordingly, in consideration of the
receipt of this Award, you expressly waive any right to contest the amount
of this Award, terms of this Award Agreement, any determination, action or
omission hereunder or under the Plan by the Committee, TRH or the Board, or
any amendment to the Plan or this Award Agreement (other than an amendment
to which your consent is expressly required by Paragraph 13) and you
expressly waive any claim related in any way to the Award including any
claim based on any promissory estoppel or other theory in connection with
this Award and your Employment with the Company.
15. Governing Law. THIS AWARD SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
16. Headings. The headings in this Award Agreement are for the purpose of
convenience only and are not intended to define or limit the construction
of the provisions hereof.
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IN WITNESS WHEREOF, TRANSATLANTIC HOLDINGS, INC. HAS CAUSED this Award
Agreement to be duly executed and delivered as of the Date of ▇▇▇▇▇.
TRANSATLANTIC HOLDINGS, INC.
By
Name:
Title:
By
Name:
Title:
RECIPIENT:
NUMBER OF RSUS:
DATE OF GRANT:
DELIVERY DATE:
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GLOSSARY OF TERMS
Solely for purposes of this award of RSUs, the following terms shall have
the meanings set forth below. Capitalized terms not defined in this
Glossary of Terms shall have the meanings as used or defined in the
applicable Award Agreement or the Plan.
"CAUSE" means (i) your conviction, whether following trial or by plea of
guilty or nolo contendere (or similar plea), in a criminal proceeding (A)
on a misdemeanor charge involving fraud, false statements or misleading
omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting
or extortion, or (B) on a felony charge or (C) on an equivalent charge to
those in clauses (A) and (B) in jurisdictions which do not use those
designations; (ii) your engaging in any conduct which constitutes an
employment disqualification under applicable law (including statutory
disqualification as defined under the Exchange Act); (iii) your failure to
perform your duties to the Company; (iv) your violation of any securities
or commodities laws, any rules or regulations issued pursuant to such laws,
or the rules and regulations of any securities or commodities exchange or
association of which TRH or any of its subsidiaries or affiliates is a
member; (v) your violation of any Company policy concerning hedging or
confidential or proprietary information, or your material violation of any
other Company policy as in effect from time to time; (vi) your engaging in
any act or making any statement which impairs, impugns, denigrates,
disparages or negatively reflects upon the name, reputation or business
interests of the Company; or (vii) your engaging in any conduct detrimental
to the Company. The determination as to whether "Cause" has occurred shall
be made by the Committee in its sole discretion. The Committee shall also
have the authority in its sole discretion to waive the consequences under
the Plan or any Award Agreement of the existence or occurrence of any of
the events, acts or omissions constituting "Cause."
"CLIENT" means any client or prospective client of the Company to whom you
provided services, or for whom you transacted business, or whose identity
became known to you in connection with your relationship with or Employment
by the Company.
"COMPETITIVE ENTERPRISE" means a business enterprise that (i) engages in
any activity, or (ii) owns or controls a significant interest in any entity
that engages in any activity, that, in either case, competes anywhere with
any activity in which the Company is engaged. The activities covered by the
previous sentence include, without limitation, all insurance and
re-insurance and insurance and re-insurance-related activities, asset
management, financial product activities (including, without limitation,
derivative activities) and financial services in the United States and
abroad.
"DELIVERY DATE" means each date specified as the Delivery Date in the Award
(or as soon as practicable, but in no case more than 10 days, thereafter).
"DISABILITY" means "permanent disability" as defined in the Transatlantic
Holdings, Inc. Group Long - Term Insurance Policy as in effect on the Date
of Grant.
"RETIREMENT" means "normal retirement" as defined in the Transatlantic
Holdings, Inc. Retirement Plan as in effect on the Date of Grant.
"SOLICIT" means any direct or indirect communication of any kind whatsoever,
regardless of by whom initiated, inviting, advising, encouraging or
requesting any person or entity, in any manner, to take or refrain from
taking any action.
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