Exhibit 10.3
CONSULTING AGREEMENT
CONSULTING
AGREEMENT, dated as of April 24, 2009, by and between XL Capital
Ltd, a Cayman Islands corporation (the “ Company
”), and Brian O’Hara (the “ Consultant
”), an individual.
WHEREAS,
the Consultant was employed by the Company as its Chief Executive
Officer and he was Chairman of its Board of Directors;
and
WHEREAS,
the Company desires to retain the services of the Consultant, and
the Consultant desires to be retained by the Company, subject to
and in accordance with the terms and conditions set forth herein;
and
WHEREAS,
the Consultant and the Company have agreed to the noncompetition,
nonsolicitation and confidentiality provisions set forth
herein.
NOW,
THEREFORE, in consideration of the conditions and covenants set
forth herein, the parties hereto hereby agree as
follows:
1.
Agreement . The Company hereby retains the Consultant as a
consultant to the Company on and subject to the terms and
conditions set forth herein, and the Consultant hereby accepts such
consultancy, on and subject to such terms and
conditions.
2.
Consulting Services . During the Consulting Term (as defined
below), the Consultant shall provide such consulting services to
the Company commensurate with his status and experience as the
former Chairman and Chief Executive Officer of the Company with
respect to such matters as shall be reasonably requested from time
to time by the Chief Executive Officer of the Company. Such
services shall include, but not be limited to, services in
connection with the Company’s ongoing operations, including,
without limitation, advising on industry activities, government and
public affairs matters and client relationship matters, and in
connection with the defense and/or investigation of any third party
claim or any investigation or proceeding relating to the Company or
its Affiliates (as defined below). The Consultant shall not, by
virtue of the consulting services provided hereunder, be considered
an officer or employee of the Company, and he shall have no power
or authority to contract in the name of or bind the Company or its
Affiliates.
3.
Consulting Fee . During the Consulting Term, in
consideration of the services to be provided by the Consultant to
the Company described herein and in consideration for the covenants
of the Consultant set forth herein, the Company shall pay the
Consultant a fee in the amount of $800,000 per year, payable (i)
$800,000 on May 1, 2009, (ii) $800,000 on January 4, 2010, and
(iii) $800,000 on December 31, 2010. The Consultant shall not be
entitled to participate in any employee benefit plans maintained by
the Company or any of its Affiliates by reason of this
Agreement.
4.
Consulting Term . The period during which the Consultant
will be retained by the Company to provide the consulting services
hereunder shall commence on April 25, 2009 and shall terminate on
the third anniversary thereof, unless sooner terminated as provided
in this
Section 4 (the “
Consulting Term ”). Notwithstanding the foregoing, the
Consulting Term will end on the date of the Consultant’s
death or termination of service due to his Permanent Disability (as
defined below), and the Consulting Term may be terminated by the
Company for Cause (as defined below). For purposes of this
Agreement, the term “ Cause ” shall mean the
Consultant’s (a) fraud or dishonesty in connection with the
performance or provision by the Consultant of his services under
this Agreement, (b) material breach of any of the terms of this
Agreement or (c) the Consultant’s conviction of, or plea of
nolo contendere to, a felony. For purposes of this
Agreement, the term “ Permanent Disability ”
means those circumstances where the Consultant has been unable to
provide his services as described in this Agreement for at least 60
continuous days because of physical, mental or emotional incapacity
resulting from injury, sickness or disease, and will be unable to
continue to provide his services as described in this Agreement for
a total of six (6) months in any twelve (12) month period because
of physical, mental or emotional incapacity resulting from injury,
sickness or disease. Any questions as to the existence of a
Permanent Disability shall be determined by a qualified,
independent physician selected by the Company and approved by the
Consultant (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive
for all purposes of this Agreement.
5.
Reimbursement of Expenses . The Company shall reimburse the
Consultant for all reasonable expenses incurred by him in the
course of performing his services under this Agreement (which
expenses are consistent with the Company’s policies in effect
from time to time with respect to travel and other business
expenses), subject to the Company’s requirements with respect
to reporting and documentation of expenses.
6.
Noncompetition and Nonsolicitation . Since the Consultant
has obtained in the course of his employment with the Company and
his service as Chairman of the Board, and is likely to obtain in
the course of his service as a consultant hereunder, knowledge of
trade secrets, know-how, products and services (including products
and services under development), techniques, methods, lists,
computer programs and software and other confidential information
relating to the Company and its Affiliates, and their employees,
clients, business or business opportunities, the Consultant hereby
undertakes that, during the period beginning on the date hereof and
ending on April 25, 2012:
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(a) the Consultant will not (either
alone or jointly with or on behalf of others and whether directly
or indirectly) encourage, entice, solicit or endeavor to encourage,
entice or solicit away from employment with the Company or its
Affiliates, or hire or cause to be hired, any officer or employee
of the Company or its Affiliates (or any individual who was within
the prior twelve months an officer or employee of the Company or
its Affiliates), or encourage, entice, solicit or endeavor to
encourage, entice or solicit any individual to violate the terms of
any employment agreement or arrangement between such individual and
the Company or any of its Affiliates;
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(b) the Consultant will not (either
alone or jointly with or on behalf of others and whether directly
or indirectly) interfere with or disrupt or seek to interfere with
or disrupt (A) the relationships between the Company and its
Affiliates, on the one hand, and any customer or client of the
Company and its Affiliates, on the other hand, (including any
insured or reinsured party) who during the period of twenty-four
months immedi-
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ately preceding the date of this
Agreement shall have been such a customer or client, or (B) the
supply to the Company and its Affiliates of any services by any
supplier or agent or broker who during the period of twenty-four
months immediately preceding the date of this Agreement shall have
supplied services to any such person, nor will the Consultant
interfere or seek to interfere with the terms on which such supply
or agency or brokering services during such period as aforesaid
have been made or provided; and
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(c) the Consultant, without the
express written consent of the Company (which shall not be
unreasonably withheld), will not (either alone or jointly with or
on behalf of others and whether directly or indirectly) whether as
an employee, consultant, partner, principal, agent, distributor,
representative, director or stockholder (except solely as a less
than one percent stockholder of a publicly traded company), engage
in any activities in Bermuda, the United States or greater London
if such activities are competitive with the businesses that (i) are
then being conducted by the Company or its Affiliates and (ii)
during the period of the Consultant’s employment or
consultancy were either being conducted by the Company or its
Affiliates or actively being developed by the Company or its
Affiliates.
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For
purposes of this Agreement, an “ Affiliate ” of
the Company means any person, directly or indirectly, through one
or more intermediaries, controlling, controlled by, or under common
control with the Company, and
