EX-10.5: FORM OF EIP SHARE UNIT AWARD AGREEMENT

 

Company and the performance levels achieved by the Company for the Performance Cycle as of the end of the fiscal quarter following the date of termination. For purposes hereof, the term “Cause” shall mean: (i) the Participant’s willful and continued failure to substantially perform the Participant’s duties to the Company or any subsidiaries of the Company; (ii) the Participant’s conviction of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude; (iii) the Participant’s engagement in any malfeasance or fraud or dishonesty of a substantial nature in connection with the Participant’s position with the Company or any of its subsidiaries, or other willful act that materially damages the reputation of the Company or any of its subsidiaries; (iv) the Participant’s breach of any restrictive covenants agreed to between the Participant and the Company or any subsidiaries of the Company; or (v) the sale, transfer or hypothecation by the Participant, prior to the payment in respect of the Award hereunder, of Common Shares in violation of the Share Ownership Guidelines. Notwithstanding the foregoing, the Participant’s employment will be treated as having been terminated without Cause under this Agreement in the event of any termination by the Company or any subsidiary of the Company without “cause” or by the Participant for “good reason,” as such terms or comparable terms are defined under any employment agreement in effect from time to time between the Participant and the Company or any subsidiary of the Company.

          Section 5. Payment of Award.

          (a) General. Subject to the provisions of Sections 5(c) and 5(d) hereof, payment in respect of the Award hereunder (including any pro rated payment that becomes due hereunder pursuant to Section 4(b) hereof) shall be made in Common Shares within thirty (30) days following the Vesting Date. The amount of the payment to be made in respect of the Award will be determined in accordance with the terms of this Agreement, the Plan and the payment schedule set forth as Exhibit A hereto, which is based on the degree of the Company’s achievement of Average Annual ROE (i.e. return on equity) during the Performance Cycle.

          (b) Withholding. The payment in respect of the Share Units shall be made to the Participant after deduction of applicable withholding taxes in the amount determined by the Committee, which shall be withheld at the applicable supplemental wage withholding rate, or such other rate as determined by the Committee, provided that such amount shall not exceed the Participant’s estimated federal, state and local tax obligation with respect to payment in respect of the Share Units. In lieu of the foregoing, the Committee may allow the Participant to pay the applicable withholding taxes to the Company in cash or such other form as approved by the Committee.

          (c) Payments to “Specified Employees” Under Certain Circumstances. Notwithstanding the provisions of Section 5(a) hereof, if the Participant is deemed a “specified employee” at a time when such Participant becomes eligible for payments upon a “separation

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from service” with the Company or any of its subsidiaries, such payments shall be made to the Participant on the date that is six (6) months following such “separation from service,” or upon the Participant’s death, if earlier.

          (d) Change in Control. Notwithstanding the provisions of Section 5(a) hereof, upon a Change in Control of the Company, the Participant shall receive payment in respect of the Award hereunder in accordance with the provisions of Section 7 of the Plan.

          Section 6. Restrictions on Transfer. No portion of the Share Units may be sold, assigned, transferred, encumbered, hypothecated or pledged by the Participant, other than to the Company as a result of forfeiture of the Share Units as provided herein, unless and until the payment of the Share Units in accordance with Section 5 hereof.

          Section 7. Limitation of Rights. The Participant shall not have any privileges of a shareholder of the Company with respect to the Common Shares payable hereunder, including without limitation any right to vote such shares or to receive dividends or other distributions in respect thereof, until the date of the issuance to the Participant of a share certificate evidencing such Common Shares. Nothing in this Agreement shall confer upon the Participant any right to continue as an employee of the Company or any subsidiary or to interfere in any way with any right of the Company to terminate the Participant’s employment at any time.

          Section 8. Changes in Capitalization. The Award shall be subject to the provisions of the Share Incentive Plan relating to adjustments for changes in corporate capitalization.

          Section 9. Notices. Any notice hereunder by the Participant shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the Secretary of the Company. Any notice hereunder by the Company shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such address as the Participant may have on file with the Company.

          Section 10. Construction. This Agreement and the Award evidenced hereby are granted by the Company pursuant to the Plan and the Share Incentive Plan and are in all respects subject to the terms and conditions of the Plan and the Share Incentive Plan. The Participant hereby acknowledges that a copy of each of the Plan and the Share Incentive Plan has been delivered to the Participant and the Participant accepts the Share Units hereunder subject to all terms and provisions of the Plan and the Share Incentive Plan, which are incorporated herein by reference. In the event of a conflict or ambiguity between any term or provision contained herein and a term or provision of the Plan or the Share Incentive Plan, then the Plan or the Share Incentive Plan, as applicable, shall govern and prevail. The construction of and decisions under the Plan, the Share Incentive Plan and this Agreement are vested in the Committee, whose determinations shall be final, conclusive and binding upon the Participant.

          Section 11. Governing Law. This Agreement and the Award hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, excluding the choice of law rules thereof.