AGREEMENT
THIS AGREEMENT is made and entered into as of April 1, 2002 by and
among XL Insurance, Inc., a Delaware corporation ("XLI"), XL America, Inc., a
Delaware corporation (the "Company") and XL Capital Ltd., a Cayman Islands
corporation ("XL") and Nicholas M. Brown, Jr. (the "Executive").
WHEREAS, the Executive has been in the employ of the Company;
WHEREAS, the Company and the Executive desire to memorialize the
terms and conditions of certain retirement benefits to be provided to the
Executive;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
Company, XL America and the Executive (the "Parties") agree as follows:
1. Supplemental Retirement Benefit.
(i) The Executive shall be paid a lifetime annual retirement
benefit, commencing within thirty (30) days following the later of the date
of his termination of employment with the Company or its Affiliates or the
date of his attainment of age fifty (50), equal to fifty percent (50%) of
the Executive's Final Average Compensation (as defined below), reduced by
benefits from any defined benefit pension plans maintained (or formerly
maintained) by the Company or its Affiliates or any defined benefit pension
plans maintained (or formerly maintained) by any previous employers
(converted into a life annuity commencing on the date of commencement of
benefits hereunder, if necessary, using the actuarial assumptions under the
defined benefit pension plan(s) of the Company or its Affiliates or, if
none, those deemed reasonable by an independent actuary mutually agreed to
by the Company or its Affiliates and the Executive). Any retirement benefit
that is payable prior to age sixty (60) shall be reduced by five percent
(5%) per year for each year prior to age sixty (60); E.G., at age fifty
(50) the benefit would equal twenty five percent ---- (25%) of the
Executive's Final Average Compensation. The benefit will be paid to the
Executive for his lifetime and, upon his death, fifty percent (50%) of his
benefit will be paid to his surviving spouse, if any, for her lifetime.
(ii) (1) If the Executive's employment terminates with the Company
and its Affiliates due to disability (as defined in the Employment
Agreement between the Company and the Executive), the Executive shall
receive a supplemental disability benefit equal the difference between (x)
fifty
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percent (50%) of the Executive's Final Average Compensation and (y) the
benefit received by Executive under the long term disability plan of the
Company or its Affiliates. Such supplemental benefit shall be payable at
the same time and under the same terms as the long term disability plan
benefit. This supplemental disability benefit shall cease when benefits
under the long term disability plan cease.
(2) Upon cessation of disability benefits at age sixty-five
(65), the Executive will become eligible for a retirement benefit under
paragraph (i) of this Section 1. In the event supplemental disability
benefits under the long term disability plan of the Company or its
Affiliates cease prior to age sixty-five (65) and the Executive does not
return to work with the Company or its Affiliates, for purposes of this
Section 1, the Executive shall be considered to have terminated employment
or died, as appropriate, as of the date supplemental disability benefits
under the long term disability plan of the Company or its Affiliates
ceased.
(iii) In the event of the Executive's death while an employee of
the Company prior to commencing benefits hereunder (whether or not the
Executive has attained age fifty (50)), a benefit shall be paid to the
Executive's surviving spouse, if any, when the Executive would have
commenced benefits hereunder for her lifetime equal to the benefit which
would have been payable to the spouse assuming the Executive had retired
the day preceding the date of death and then died.
(iv) The calculation of the benefits payable pursuant to this
Section 1 shall be based upon the actuarial assumptions used in the
Company's defined benefit plans covering the Executive or, if none then
exists, those in the last such plan which covered the Executive. If such a
plan exists, the calculation shall be made by the actuary for such plan or,
if there is no current plan or actuary, by an independent actuary selected
by the Company or its Affiliates, subject to the consent of the Executive
(which shall not be unreasonably withheld or delayed). The calculation of
the actuary shall be final and binding on all persons provided it was made
in good faith. The benefits payable pursuant to this Section 1 shall be
unfunded and the Executive will not be considered to have received a
taxable economic benefit prior to the time at which benefits are actually
payable hereunder. Accordingly, the Company or its Affiliates shall not be
required to segregate any of its assets for the benefit of the Executive
and the Executive shall have only a contractual right against the Company
for the benefits payable hereunder.
(v) For purposes of this Agreement, the following terms shall have
the following meanings:
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(1) "Affiliate" means any person, directly or indirectly,
through one or more intermediaries, controlling, controlled by, or under
common control with the Company (or other person or entity), and such term
shall specifically include in the case of the Company, without limitation,
XL Capital Ltd. and its majority owned subsidiaries.
(2) "Compensation" shall mean the sum of (i) the Executive's
annual base salary received from the Company or one of its Affiliates and
(ii) the Executive's regular annual bonus at target from the Company or one
of its Affiliates (and, for the avoidance of doubt, not including any
special bonus).
(3) "Final Average Compensation" shall mean the Executive's
highest average annual Compensation earned during any consecutive
thirty-six (36) complete months (or lesser actual period of receiving
Compensation) during the period of sixty (60) complete months (or lesser
actual period of receiving Compensation) immediately preceding the
Executive's termination of employment with the Company.
2. Retiree Medical Benefits.
If the Executive's employment with the Company or its Affiliates
ceases for any reason (other than a voluntary resignation prior to December 31,
2004 or a termination by the Company for "cause" (as defined in the Employment
Agreement between the Company and the Executive) prior to December 31, 2004),
the Executive and his dependents shall, to the extent eligible, continue to
receive medical benefits under the medical plans of the Company or its
Affiliates. In the event that the Executive and his dependents are not eligible
to receive medical benefits under the medical plans of the Company or its
Affiliates, the Company or its Affiliates will use its reasonable best efforts
to arrange for the provision by third party insurers of medical benefits for the
Executive and his dependents substantially comparable to the medical benefits
provided to employees of the Company or its Affiliates from time to time. The
cost of such medical benefits shall be borne solely by the Executive (or his
dependents) unless the Company is otherwise obligated to cover such cost. If the
Executive's employment terminates with the Company and its Affiliates for any
reason (other than a voluntary resignation prior to December 31, 2004 or a
termination by the Company for "cause" (as defined in the Employment Agreement
between the Company and the Executive) prior to December 31, 2004), for the
purpose of allowing the Executive to receive retiree medical benefits, the
Company and its Affiliates shall provide the Executive with additional service
credit, equal to seven years service credit.
In the event the Executive obtains other employment after the
Executive's employment with the Company or its Affiliates ceases which provides
health or welfare benefits of the type described in this Section 2, then
Executive shall notify the Company promptly of such other employment and other
coverage, and the coverage under this provision shall be secondary.
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3. Post-Termination Vesting and Exercise Periods.
The Company and the Executive acknowledge that with regard to
options to purchase equity securities of XL and other equity grants held by the
Executive outstanding on January 1, 2002, any termination of the Executive's
employment with the Company or its Affiliates after attaining age 50 will
qualify as a retirement under the terms of the applicable plan and grants. As
such, the Executive shall, as provided in the applicable grant or plan, become
fully vested or continue to vest in the grants and have either three or five
years after such termination to exercise any such options (but in no event
beyond the stated term of the options). The Company and the Executive agree that
with regard to any options to purchase equity securities of XL or other equity
grants hereafter made, any termination of the Executive's employment with the
Company or its Affiliates at or after December 31, 2004 will qualify as a
retirement and the Executive shall have such rights as provided under such
future grants to senior executives who qualify for retirement.
4. Withholding.
Anything in this Agreement to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Executive shall be
subject to withholding of such amounts relating to taxes as the Company may
reasonably determine should be withheld pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or in part, the
Company may, in its sole discretion, accept other provision for payment of taxes
as required by law, provided it is satisfied that all requirements of law
affecting its responsibilities to withhold such taxes have been satisfied.
5. Guaranty.
XL, XLI and the Company hereby agree to be jointly and severally
liable for the obligations under this Agreement.
6. Settlement of Disputes
(i) Any dispute between the Executive and the Company arising from
or relating to the terms of this Agreement shall be resolved by arbitration
held in New York City in accordance with the rules of the American
Arbitration Association.
(ii) All costs associated with any proceeding under this Section
6, including all legal fees and expenses, for the Company and its
Affiliates and the Executive shall be borne by the Company. The Executive
shall be reimbursed by the Company for all such costs promptly upon written
demand therefor by the Executive.
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7. Entire Agreement.
This Agreement contains the entire agreement between the Company
and its Affiliates and the Executive concerning the Executive's supplemental
retirement and retiree medical benefits and supersedes all prior agreements,
understandings, discussions, negotiations and undertakings, whether written or
oral, between the Company or its Affiliates and the Executive with respect
thereto.
8. Amendment or Waiver.
No provision in this Agreement may be amended unless such
amendment is agreed to in writing, signed by the Executive and by a duly
authorized officer of the Company and XL America. No waiver by the Company or
its Affiliates or the Executive of any breach by the other party of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or a duly authorized officer of the Company and XL
America, as the case may be.
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 sent by courier, or 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:
If to XL, XLI or the Company:
XL Capital Ltd
XL HouseOne Bermudiana Road
Hamilton HM11 Bermuda
Att'n: General Counsel
If to the Executive:
At the last address shown in the records of the Company
10. Severability.
In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent permitted by law.
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11. Survivorship.
The respective rights and obligations of the Parties shall survive
any termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
12. Reference.
In the event of the Executive's death or a judicial determination
of his incompetence, reference in this Agreement to the Executive shall be
deemed, where appropriate, to refer to his estate or other legal representative.
13. Governing Law.
Except as otherwise required by the Employee Retirement Income
Security Act of 1974, as amended, this Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of New York
without reference to the principles of conflict of laws thereof.
14. Headings.
The heading of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
15. Counterparts.
This Agreement may be executed in one or more counterparts.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
XL INSURANCE, INC.
By:
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XL AMERICA, INC.
By:
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XL CAPITAL LTD
By:
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NICHOLAS M. BROWN, JR.
By:
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