-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B8f6L99Y/R0REfdfN0R2THvVNS5Vwz4XLIfY5RD9oVObP9G/fPBX38glS1Naxg5Z zsMGNLW9m/CqUwKyNAflnA== 0000950162-05-000885.txt : 20050914 0000950162-05-000885.hdr.sgml : 20050914 20050914170052 ACCESSION NUMBER: 0000950162-05-000885 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050913 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050914 DATE AS OF CHANGE: 20050914 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XL CAPITAL LTD CENTRAL INDEX KEY: 0000875159 STANDARD INDUSTRIAL CLASSIFICATION: SURETY INSURANCE [6351] IRS NUMBER: 980191089 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-10804 FILM NUMBER: 051084916 BUSINESS ADDRESS: STREET 1: XL HOUSE STREET 2: ONE BERMUDIANA ROAD CITY: HAMILTON HM11 BERMUD STATE: D2 BUSINESS PHONE: 4412928515 MAIL ADDRESS: STREET 1: CAHILL GORDON & REINDEL(IMMANUEL KOHN) STREET 2: 80 PINE STREET CITY: NEW YORKI STATE: NY ZIP: 10005 FORMER COMPANY: FORMER CONFORMED NAME: EXEL LTD DATE OF NAME CHANGE: 19950720 8-K 1 xl8k-091305.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 13, 2005 ------------------------ XL CAPITAL LTD (Exact name of registrant as specified in its charter) ------------------------ Cayman Islands 1-10809 98-0191089 (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) XL House, One Bermudiana Road, Hamilton, Bermuda HM 11 (Address of principal executive offices) Registrant's telephone number, including area code: (441) 292 8515 Not Applicable (Former name or former address, if changed since last report) ------------------------ Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ Item 1.01. Entry into a Material Definitive Agreement. On September 13, 2005, XL Capital Ltd (the "Company") and Paul S. Giordano (the "Executive") entered into the First Amendment (the "Amendment") to the Employment Agreement (the "Employment Agreement") between the Executive and the Company dated as of January 1, 2005. A copy of the Amendment is attached hereto as Exhibit 10.1 and incorporated by reference herein. The Amendment provides for the payment to the Executive of a monthly housing allowance beginning effective July 1, 2005 and continuing for a period of three years thereafter. The amount is $15,000 per month for the first year, $10,000 per month for the second year and $5,000 per month for the third year. If the Executive's employment is terminated by the Company without cause, due to the disability of the Executive, by the Executive for good reason (as defined in the Employment Agreement) following a change in control of the Company or by the Executive following the assignment to him of duties that are materially inconsistent with his position or following another material breach by the Company of the provisions of the Employment Agreement set forth in Section 8(b)(iv) thereof, the Executive will receive a lump sum payment equal to the amount of any remaining housing allowance payments scheduled to be paid for the twenty-four months following such termination of employment. In the event the Executive's employment terminates due to his death, the spouse or estate of the Executive will continue to receive monthly housing allowance payments through the end of the three year housing payment period or until the principal residence of the Executive is sold, whichever is earlier. The Amendment also provides that the Company will reimburse the Executive, on an after-tax basis, for any loss incurred by him on a sale of his principal residence which occurs prior to June 30, 2010 and prior to his termination of employment. For this purpose, any loss will be measured by the excess of the purchase price paid by the Executive for the principal residence over the higher of the sale price received by the Executive or the average of two independent appraisals of the fair market value of the principal residence as of the date of execution of the applicable purchase and sale agreement. In the event the Executive's employment is terminated by the Company without cause, due to the disability of the Executive, by the Executive for good reason (as defined in the Employment Agreement) following a change in control of the Company or by the Executive following the assignment to him of duties that are materially inconsistent with his position or following another material breach by the Company of the provisions of the Employment Agreement set forth in Section 8(b)(iv) thereof, the period during which he will be protected against loss will not end until the earlier of twenty-four months following such termination of employment or June 30, 2010. In the event the Executive's employment terminates due to his death, the period of loss protection will continue through June 30, 2010, and any reimbursement for loss will be paid to the Executive's spouse or estate. The cost of any appraisals required will be paid by the Company. Item 9.01. Financial Statements and Exhibits. (c) Exhibits. The following exhibits are filed herewith: Exhibit No. Description ----------- ----------- 10.1 First Amendment to the Employment Agreement, dated as of January 1, 2005, between XL Capital Ltd and Paul S. Giordano. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: September 14, 2005 XL CAPITAL LTD (Registrant) By: /s/ Kirstin Romann Gould ------------------------------------- Name: Kirstin Romann Gould Title: Senior Vice President and Chief Corporate Legal Officer EX-10.1 2 xl8k-091305ex101.txt FIRST AMENDMENT TO EMPLOYMENT AGREEMENT Exhibit 10.1 FIRST AMENDMENT TO EMPLOYMENT AGREEMENT AGREEMENT, made and entered into as of the 1st day of July, 2005, by and between XL Capital Ltd, a Cayman Islands corporation (the "Company"), XL Insurance (Bermuda) Ltd, a Bermuda exempted company, XL Re Ltd, a Bermuda exempted company, X.L. America, Inc., a U.S. corporation (XL Insurance (Bermuda) Ltd, XL Re Ltd, and X.L. America, Inc. are direct or indirect wholly owned subsidiaries of the Company and are collectively referred to herein as the "Guarantors") and Paul S. Giordano (the "Executive"). WHEREAS, the Executive, the Company and the Guarantors entered into an employment agreement dated as January 1, 2005 (the "Employment Agreement"); WHEREAS, the Company, the Guarantors and the Executive desire to amend the Employment Agreement as set forth herein; NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and for other good and other valuable consideration, the Company, the Guarantors and the Executive agree as follows. 1. New Section 27 is added to the Employment Agreement to read as follows: "27. Housing Benefit. The Executive shall be paid a monthly housing allowance by the Company equal to the amount set forth below, beginning effective July 1, 2005 and continuing for a period of three years thereafter. The amount will be paid on a monthly basis at the time regular monthly payroll is paid. The monthly payments for the first twelve months beginning July 1, 2005 will be $15,000 per month, the payments for the second twelve months will be $10,000 per month, and the payments for the third twelve months will be $5,000 per month. Notwithstanding the foregoing, payment of the housing allowance set forth herein will cease upon termination of the Executive's employment with the Company and its Affiliates; provided, however, that if the Executive's employment is terminated by the Company for any reason other than death or Cause (including -2- by the Company giving notice of nonrenewal under Section 2 above), or if the Executive terminates his employment under Sections 8(b), 8(d)(iii) or 8(d)(iv) above, the Executive will receive, in a single lump sum as soon as practicable after termination of employment, an amount equal to any remaining housing allowance payments scheduled to be paid to the Executive as set forth above for the twenty-four months following such termination of employment. In the event of the death of the Executive during the three year housing benefit payment period, the spouse or estate of the Executive will continue to receive monthly housing allowance payments through the end of the three year payment period or until the principal personal residence purchased by the Executive on July 1, 2005 for use by him and his family upon his relocation to the United States (the "Principal Residence") is sold, whichever is earlier." 2. New Section 28 is added to the Employment Agreement to read as follows: "28. Principal Residence. The Company shall reimburse the Executive for any Loss, as computed below, incurred by the Executive on the sale of his Principal Residence if such sale closes on or prior to June 30, 2010 and, except as expressly set forth below, prior to the Executive's termination of employment with the Company and its Affiliates for any reason other than his death (the period of protection against loss is referred to herein as the "Loss Protection Period"). Any Loss incurred by the Executive during the Loss Protection Period shall be computed as follows: A "Loss" shall mean at any time during the Loss Protection Period, that the purchase price paid by the Executive for the Principal Residence exceeds the higher of (i) the net sale proceeds (i.e., the sale price less any reasonable and customary brokerage commissions, fees and closing costs) received by the Executive for the Principal Residence during the Loss Protection Period or (ii) the average of two independent appraisals of the fair market value of the Principal Residence as of the date of execution of the purchase and sale agreement for the sale of the Principal Residence by the Executive (one of such independent appraisers shall be selected by the Company and the other shall be selected by the Executive), less any reasonable and customary brokerage commissions, fees and closing costs. In addition to a payment equal to the amount of any Loss, the Company shall pay to the Executive an additional amount such that, after payment by the Executive of all taxes (including income, employment and excise taxes, and computed after taking into account any allowable tax deduction resulting from the Loss) imposed on the Loss payment and any additional payments hereunder, the Executive retains from such payments an amount equal to the Loss. Such payments shall be paid by the Company to the Executive within fifteen (15) business days following closing of the sale and receipt of the necessary appraisals, and such payment shall be made in accordance with any requirements under Section 409A of the Code, to the extent, if any, that Section 409A is applicable to -3- such payment. Notwithstanding the foregoing, if the Executive's employment is terminated by the Company for any reason other than death or Cause (including by the Company giving notice of nonrenewal under Section 2 above), or if the Executive terminates his employment under Section 8(b), 8(d)(iii) or 8(d)(iv) above, the Loss Protection Period will not end until the earlier of twenty-four months following such termination of employment or June 30, 2010. In the event the Executive's employment terminates due to his death, the Loss Protection Period will continue through June 30, 2010 and any amount payable, as set forth above, shall be paid to the Executive's spouse or estate. The cost of the appraisals required under this Section shall be paid by the Company." 3. This Agreement shall be governed 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. 4. This Agreement may be executed in one or more counterparts. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. XL CAPITAL LTD By: /s/ Kirstin Romann Gould ----------------------------- Name: Kirstin Romann Gould Title: Senior Vice President and Chief Corporate Legal Officer PAUL S. GIORDANO By: /s/ Paul S. Giordano ----------------------------- Name: Paul S. Giordano GUARANTORS: XL INSURANCE (BERMUDA) LTD By: /s/ Kirstin Romann Gould ----------------------------- Name: Kirstin Romann Gould Title: Secretary XL RE LTD By: /s/ Kirstin Romann Gould ----------------------------- Name: Kirstin Romann Gould Title: Secretary X.L. AMERICA, INC. By: /s/ Celia R. Brown ------------------------------ Name: Celia R. Brown Title: Executive Vice President -----END PRIVACY-ENHANCED MESSAGE-----