Exhibit 4.4
AXIS CAPITAL HOLDINGS
LIMITED
2007 LONG-TERM EQUITY
COMPENSATION PLAN
As Amended and Restated May
2009
SECTION 1. Purpose. The
purpose of this AXIS Capital Holdings Limited 2007 Long-Term
Equity Compensation Plan is to promote the interests of AXIS
Capital Holdings Limited, a company organized and existing under
Bermuda law, and its stockholders by (a) attracting and
retaining exceptional directors, officers, employees and
consultants (including prospective directors, officers, employees
and consultants) of the Company (as defined below) and its
Affiliates (as defined below) and (b) enabling such
individuals to participate in the long-term growth and financial
success of the Company.
SECTION 2. Definitions. As
used herein, the following terms shall have the meanings set forth
below:
“ Affiliate ”
means (a) any entity that, directly or indirectly, is
controlled by, controls or is under common control with, the
Company and (b) any entity in which the Company has a
significant equity interest, in either case as determined by the
Committee.
“ Award ” means
any award that is permitted under Section 6 and granted under
the Plan.
“ Award Agreement
” means any written agreement, contract or other instrument
or document evidencing any Award, which may, but need not, require
execution or acknowledgment by a Participant.
“ Board ” means
the Board of Directors of the Company.
“ Change of Control
” shall (a) have the meaning set forth in an Award
Agreement or (b) if there is no definition set forth in an
Award Agreement, will be deemed to have occurred as of the first
day any of the following events occurs:
(i) Any Person is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the
Company’s then outstanding voting securities entitled to vote
generally in the election of directors (the “ Outstanding
Company Voting Securities ”); provided ,
however , that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control:
(A) any acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any Affiliate, or (D) any acquisition by any
entity pursuant to a transaction which complies with clauses (A),
(B) and (C) of paragraph (iii) below;
(ii) Individuals who, as of the
Effective Date, constitute the Board (hereinafter referred to as
the “ Incumbent Board ”) cease for any reason to
constitute at least a majority of the Board; provided however, that
any individual becoming a director subsequent to the date herein
whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered a
member of the Incumbent
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Board, excluding any individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board;
(iii) Consummation of a
reorganization, merger, share exchange, amalgamation,
recapitalization, consolidation or similar transaction by and among
the Company and another Person, including, for this purpose, a
transaction as a result of which another Person owns the Company or
all or substantially all of the Company’s assets, either
directly or through one or more subsidiaries (a “ Business
Combination ”), in each case, unless, following such
Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors (or equivalent management
personnel) of the Person resulting from such Business Combination
or that, as a result of such Business Combination, owns the Company
or all or substantially all of the Company’s assets, either
directly or through one or more subsidiaries, in substantially the
same proportions as their ownership of the Outstanding Company
Voting Securities immediately prior to such Business Combination;
(B) no Person (excluding any Person resulting from such
Business Combination, or that, as a result of such Business
Combination, owns the Company or all or substantially all of the
Company’s assets, either directly or through one or more
subsidiaries, or any employee benefit plan (or related trust) of
the foregoing) beneficially owns, directly or indirectly, 50% or
more of the then outstanding shares of common stock or the combined
voting power of the then outstanding voting securities entitled to
vote generally in the election of directors (or equivalent
management personnel) of the Person resulting from such Business
Combination or that, as a result of such Business Combination, owns
the Company or all or substantially all of the Company’s
assets, either directly or through one or more subsidiaries, except
to the extent that such ownership existed with respect to the
Company prior to the Business Combination; and (C) at least a
majority of the members of the board of directors (or equivalent
management personnel) of the Person resulting from such Business
Combination or that, as a result of such Business Combination, owns
the Company or all or substantially all of the Company’s
assets, either directly or through one or more subsidiaries, were
members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the board, pursuant to which
such Business Combination is effected or approved; or
(iv) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the Company
or the sale or other disposition of all or substantially all of the
Company’s assets.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated thereunder.
“ Committee ”
means the Compensation Committee of the Board, or such other
committee of the Board as may be designated by the Board to
administer the Plan.
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“ Company ” means
AXIS Capital Holdings Limited and any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business or assets of AXIS Capital
Holdings Limited.
“ Disability ”
shall have the meaning ascribed to such term in the employee health
care plan maintained by the Company, or if no such plan exists, at
the discretion of the Committee.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, or any
successor statute thereto.
“ Exercise Price
” means (a) in the case of Options, the price specified
in the applicable Award Agreement as the price-per-Share at which
Shares may be purchased pursuant to such Option or (b) in the
case of SARs, the price specified in the applicable Award Agreement
as the reference price-per-Share used to calculate the amount
payable to the Participant.
“ Fair Market Value
” means (a) with respect to any property other than
Shares, the fair market value of such property determined by such
methods or procedures as shall be established from time to time by
the Committee and (b) with respect to the Shares, as of any
date, (i) the closing per share sales price of the Shares
(A) as reported by the NYSE for such date or (B) if the
Shares are listed on any other national stock exchange, as reported
on the stock exchange composite tape for securities traded on such
stock exchange for such date or, with respect to each of
clauses (A) and (B), if there were no sales on such date, on
the closest preceding date on which there were sales of Shares or
(ii) in the event there shall be no public market for the
Shares on such date, the fair market value of the Shares as
determined in good faith by the Committee.
“ Incentive Stock
Option ” means an option to purchase Shares from the
Company that (a) is granted under Section 6(b) and
(b) is intended to qualify for special Federal income tax
treatment pursuant to Sections 421 and 422 of the Code, as now
constituted or subsequently amended, or pursuant to a successor
provision of the Code, and which is so designated in the applicable
Award Agreement.
“ IRS ” means the
Internal Revenue Service or any successor thereto and includes the
staff thereof.
“ NYSE ” means
the New York Stock Exchange or any successor thereto.
“ Non-Employee Director
” means a member of the Board who is neither (a) an
employee of the Company nor (b) an employee of any
Affiliate.
“ Nonqualified Stock
Option ” means an option to purchase Shares from the
Company that (a) is granted under Section 6(b) and
(b) is not an Incentive Stock Option.
“ Option ” means
an Incentive Stock Option or a Nonqualified Stock Option or both,
as the context requires.
“ Participant ”
means any director, officer, employee or consultant (including any
prospective director, officer, employee or consultant) of the
Company or its Affiliates who is eligible for an Award under
Section 5 and who is selected by the Committee to receive an
Award under the Plan or who receives a Substitute Award pursuant to
Section 4(c).
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“ Performance Criteria
” means the criterion or criteria that the Committee shall
select for purposes of establishing a Performance Goal for a
Performance Period with respect to any Performance Unit under the
Plan.
“ Performance Goal
” means, for a Performance Period, the one or more goals
established by the Committee for the Performance Period based upon
the Performance Criteria.
“ Performance Period
” means the one or more periods of time as the Committee may
select over which the attainment of one or more Performance Goals
will be measured for the purpose of determining a
Participant’s right to and the payment of a Performance
Unit.
“ Performance Unit
” means an Award under Section 6(e) that has a value set
by the Committee (or that is determined by reference to a valuation
formula specified by the Committee or the Fair Market Value of
Shares), which value may be paid to the Participant by delivery of
such property as the Committee shall determine, including without
limitation, cash or Shares, or any combination thereof, upon
achievement of such Performance Goals during the relevant
Performance Period as the Committee shall establish at the time of
such Award or thereafter.
“ Person ” shall
have the meaning ascribed to such term in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a “group” as defined in Section 13(d)
thereof.
“ Plan ” means
this AXIS Capital Holdings Limited 2007 Long-Term Equity
Compensation Plan, as in effect from time to time.
“ Restricted Share
” means a Share delivered under the Plan that is subject to
certain transfer restrictions, forfeiture provisions and/or other
terms and conditions specified herein and in the applicable Award
Agreement.
“ Retirement ”
shall (a) have the meaning set forth in an Award Agreement or
(b) if there is no definition set forth in an Award Agreement,
means:
(i) for an employee, such
employee’s termination of employment with the Company and its
Affiliates but only if either (A) such termination shall have
occurred on or after the date on which he or she shall have
attained age 60 and prior to such termination such employee shall
have completed 5 years of continuous employment with the Company
and its Affiliates or (B) the Committee by affirmative action
determines such termination shall constitute a Retirement for
purposes of the Plan; and
(ii) for a director, such
director’s termination of service with the Company and its
Affiliates but only if either (A) such termination shall have
occurred on or after the date on which he or she shall have
attained age 60 and prior to such termination such director shall
have completed 5 years of continuous employment with the Company
and its Affiliates or (B) the Board by affirmative action
determines such termination shall constitute a Retirement for
purposes of the Plan.
Consultants shall not be eligible
for Retirement hereunder.
“ RSU ” means a
restricted stock unit Award that is designated as such in the
applicable Award Agreement and that represents an unfunded and
unsecured promise to
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deliver Shares, cash, other securities, other
Awards or other property in accordance with the terms of the
applicable Award Agreement.
“ Rule 16b-3
” means Rule 16b-3 as promulgated and interpreted by the
SEC under the Exchange Act or any successor rule or regulation
thereto as in effect from time to time.
“ SAR ” means a
stock appreciation right Award that represents an unfunded and
unsecured promise to deliver Shares, cash, other securities, other
Awards or other property equal in value to the excess, if any, of
the Fair Market Value per Share over the Exercise Price per Share
of the SAR, subject to the terms of the applicable Award
Agreement.
“ SEC ” means the
Securities and Exchange Commission or any successor thereto and
shall include the staff thereof.
“ Shares ” means
shares of common stock of the Company, par value $0.0125 per share,
or such other securities of the Company (a) into which such
shares shall be changed by reason of a recapitalization, merger,
consolidation, split-up, combination, exchange of shares or other
similar transaction or (b) as may be determined by the
Committee pursuant to Section 4(b).
“ Subsidiary ”
means any entity in which the Company, directly or indirectly,
possesses 50% or more of the total combined voting power of all
classes of its stock.
“ Substitute Awards
” shall have the meaning specified in
Section 4(c).
SECTION 3. Administration.
(a) Composition of Committee . The Plan shall be
administered by the Committee, which shall be composed of one or
more directors, as determined by the Board; provided that,
to the extent necessary to comply with the rules of the NYSE and
Rule 16b-3 and any other applicable laws or rules, the Committee
shall be composed of two or more directors, all of whom shall be
Non-Employee Directors and all of whom shall (i) meet the
independence requirements of the NYSE and (ii) qualify as
“Non-Employee Directors” under
Rule 16b-3.
(b) Authority of Committee.
Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on
the Committee by the Plan, the Committee shall have sole and
plenary authority to administer the Plan, including, but not
limited to, the authority to (i) designate Participants,
(ii) determine the type or types of Awards to be granted to a
Participant, (iii) determine the number of Shares to be
covered by, or with respect to which payments, rights or other
matters are to be calculated in connection with, Awards,
(iv) determine the terms and conditions of any Awards,
(v) determine the vesting schedules of Awards and, if certain
performance criteria must be attained in order for an Award to vest
or be settled or paid, establish such performance criteria and
certify whether, and to what extent, such performance criteria have
been attained, (vi) determine whether, to what extent and
under what circumstances Awards may be settled or exercised in
cash, Shares, other securities, other Awards or other property, or
canceled, forfeited or suspended and the method or methods by which
Awards may be settled, exercised, canceled, forfeited or suspended,
(vii) determine whether, to what extent and under what
circumstances cash, Shares, other securities, other Awards, other
property and other amounts payable with respect to an Award shall
be deferred either automatically or at the election of the holder
thereof or of the Committee, (viii) interpret, administer,
reconcile any inconsistency in, correct any default
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in and supply any omission in, the Plan and any
instrument or agreement relating to, or Award made under, the Plan,
(ix) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan, (x) accelerate the
vesting or exercisability of, payment for or lapse of restrictions
on, Awards, (xi) amend an outstanding Award or grant a
replacement Award for an Award previously granted under the Plan
if, in its sole discretion, the Committee determines that
(A) the tax consequences of such Award to the Company or the
Participant differ from those consequences that were expected to
occur on the date the Award was granted or (B) clarifications
or interpretations of, or changes to, tax law or regulations permit
Awards to be granted that have more favorable tax consequences than
initially anticipated and (xii) make any other determination
and take any other action that the Committee deems necessary or
desirable for the administration of the Plan.
(c) Committee Decisions.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with
respect to the Plan or any Award shall be within the sole and
plenary discretion of the Committee, may be made at any time and
shall be final, conclusive and binding upon all persons, including
the Company, any Affiliate, any Participant, any holder or
beneficiary of any Award and any stockholder.
(d) Indemnification. No
member of the Board, the Committee or any employee of the Company
(each such person, a “Covered Person”) shall be liable
for any action taken or omitted to be taken or any determination
made in good faith with respect to the Plan or any Award hereunder.
Each Covered Person shall be indemnified and held harmless by the
Company against and from (i) any loss, cost, liability or
expense (including attorneys’ fees) that may be imposed upon
or incurred by such Covered Person in connection with or resulting
from any action, suit or proceeding to which such Covered Person
may be a party or in which such Covered Person may be involved by
reason of any action taken or omitted to be taken under the Plan or
any Award Agreement and (ii) any and all amounts paid by such
Covered Person, with the Company’s approval, in settlement
thereof, or paid by such Covered Person in satisfaction of any
judgment in any such action, suit or proceeding against such
Covered Person; provided that the Company shall have the right, at
its own expense, to assume and defend any such action, suit or
proceeding, and, once the Company gives notice of its intent to
assume the defense, the Company shall have sole control over such
defense with counsel of the Company’s choice. The foregoing
right of indemnification shall not be available to a Covered Person
to the extent that a court of competent jurisdiction in a final
judgment or other final adjudication, in either case not subject to
further appeal, determines that the acts or omissions of such
Covered Person giving rise to the indemnification claim resulted
from such Covered Person’s bad faith, fraud or willful
criminal act or omission or that such right of indemnification is
otherwise prohibited by law or by the Company’s Memorandum of
Association or Bye-Laws. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under the Company’s
Memorandum of Association or Bye-Laws, as a matter of law, or
otherwise, or any other power that the Company may have to
indemnify such persons or hold them harmless.
(e) Delegation of Authority to
Senior Officers. The Committee may delegate, on such terms and
conditions as it determines in its sole and plenary discretion, to
one or
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more senior officers of the Company the
authority to make grants of Awards to officers (other than officers
subject to Section 16 of the Exchange Act), employees and
consultants of the Company and its Affiliates (including any
prospective officer, employee or consultant) and all necessary and
appropriate decisions and determinations with respect thereto;
provided, however, that the cash settlement of Awards may only be
permitted with the express written consent of the
Committee.
(f) Awards to Non-Employee
Directors. Notwithstanding anything to the contrary contained
herein, the Compensation Committee may, in its sole and plenary
discretion, at any time and from time to time, grant Awards to
Non-Employee Directors.
SECTION 4. Shares Available for
Awards. (a) Shares Available . Subject to adjustment as
provided in Section 4(b), the aggregate number of Shares that
may be delivered pursuant to Awards granted under the Plan shall be
9,000,000. The maximum number of Shares that may be delivered
pursuant to Incentive Stock Options granted under the Plan shall be
9,000,000 (“Plan Shares”). If, after the effective date
of the Plan, any Award granted under the Plan is forfeited, or
otherwise expires, terminates or is canceled without the delivery
of Shares, then the Shares covered by such forfeited, expired,
terminated or canceled Award shall again become available to be
delivered pursuant to Awards under the Plan. If Shares issued upon
exercise, vesting or settlement of an Award, or Shares owned by a
Participant (which are not subject to any pledge or other security
interest), are surrendered or tendered to the Company in payment of
the Exercise Price of an Award or any taxes required to be withheld
in respect of an Award, in each case, in accordance with the terms
and conditions of the Plan and any applicable Award Agreement, such
surrendered or tendered Shares shall again become available to be
delivered pursuant to Awards under the Plan; provided ,
however , that in no event shall such Shares increase the
number of Shares that may be delivered pursuant to Incentive Stock
Options granted under the Plan. Notwithstanding any provision of
the Plan to the contrary, the aggregate number of Shares subject to
Awards (i) granted in the form of “other equity-based or
equity-related Awards” pursuant to Section 6(a)(vi) and
(ii) with respect to which restrictions may be waived or
lapsed pursuant to Section 7(b), other than in connection with
a Change of Control or in the case of the death, Disability or
Retirement of a Participant, shall not exceed 10% of the Plan
Shares.
(b) Adjustments for Changes in
Capitalization and Similar Events. (i) In the event of any
extraordinary dividend or other extraordinary distribution (whether
in the form of cash, Shares, other securities or other property),
recapitalization, stock split, reverse stock split, split-up or
spin-off, the Committee shall, in order to preserve the value of
the Award and in the manner determined by the Committee, adjust any
or all of (A) the number of Shares or other securities of the
Company (or number and kind of other securities or property) with
respect to which Awards may be granted, including (1) the
aggregate number of Shares that may be delivered pursuant to Awards
granted under the Plan (including pursuant to Incentive Stock
Options), as provided in Section 4(a) and (2) the maximum
number of Shares or other securities of the Company (or number and
kind of other securities or property) with respect to which Awards
may be granted to any Participant in any fiscal year of the Company
and (B) the terms of any outstanding Award, including
(1) the number of Shares or other securities of the Company
(or number and kind of other securities or property) subject to
outstanding Awards or to
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which outstanding Awards relate and (2) the
Exercise Price, if applicable, with respect to any
Award.
(ii) In the event that the Committee
determines that any reorganization, merger, consolidation,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company, o
