EXHIBIT 10.19
January 4, 2006
Xx. Xxxxxxxx X. Xxxxxxxx
c/o Reliance Standard Life Insurance Company
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Re: Stock Option Award Agreement
Dear Xxxxx:
We are pleased to inform you that, pursuant to action taken by the Stock
Option and Compensation Committee (the "Committee") of the Board of Directors of
Delphi Financial Group, Inc. ("Delphi") under Section 5 of the 2003 Employee
Long-Term Incentive and Share Award Plan (the "Plan"), you have been granted
options to purchase up to 50,000 shares of Delphi's Class A Common Stock (the
"Stock") at the price of $46.65 per share (the "Options"), which was the fair
market value of the Stock as of December 28, 2005, the date of such action, as
determined under the Plan. This notice, once countersigned by you, shall
constitute an "Award Agreement" as defined in Section 2(c) of the Plan.
Capitalized terms used but not defined herein shall have the respective meanings
set forth in the Plan.
The Options will become exercisable, in accordance with the procedures set
forth herein, in their entirety if the aggregate Pre-Tax Operating Income, as
defined in Exhibit A hereto ("Pre-Tax Operating Income"), of Reliance Standard
Life Insurance Company of Texas and its consolidated subsidiaries (collectively,
"the RSL Companies") for the period consisting of Delphi's 2004, 2005, 2006,
2007 and 2008 fiscal years (the "Performance Period") is at least $646,159,683.
Alternatively, if the RSL Companies' aggregate Pre-Tax Operating Income for such
period does not reach $646,159,683, but is greater than $559,927,799, a reduced
number of the Options shall become exercisable in accordance with such
procedures, to be determined by interpolating between zero and 50,000 in
relation to the point at which the Pre-Tax Operating Income amount falls in the
range between $559,927,799 and $646,159,683.
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January 4, 2006
Page 2
In addition, if prior to December 31, 2008, your employment with Delphi's
subsidiary, Reliance Standard Life Insurance Company ("RSL"), terminates due to
death or Disability or is terminated by RSL without Cause or by you for Good
Reason, then, notwithstanding any provisions hereof or of the Plan to the
contrary, with respect to Options that have not become exercisable prior to such
termination pursuant to the provisions of the preceding paragraph, such Options
will become exercisable at such time, if any, as would have been the case
pursuant to such paragraph if not for such termination; provided, however, that
the number of Options that becomes exercisable will, in each case, be reduced by
a percentage equal to the applicable percentage of the Performance Period during
which you were not employed by RSL by reason of such termination. For purposes
of this paragraph, the following definitions shall apply:
"Disability" shall mean an illness, injury, accident or condition of either
a physical or psychological nature as a result of which you are unable to
perform substantially the duties and responsibilities of your position during a
period of 180 days during a period of 365 consecutive calendar days.
"Cause" shall mean (i) conviction of a felony or other crime involving
fraud, dishonesty or moral turpitude, (ii) fraud or intentional
misrepresentation, embezzlement, misappropriation or conversion of assets or
opportunities of Delphi or any Subsidiary thereof, or any unauthorized
disclosure of confidential information or trade secrets of Delphi or any
Subsidiary thereof (a "Breach of Confidentiality"), or (iii) gross neglect of
duties of your office specified by the Board of Directors of RSL.
"Good Reason" shall mean (i) reduction of your base salary for any fiscal
year to less than 100 percent of the rate of base salary in effect for you as of
the date of this Award Agreement; or (ii) the failure of RSL to continue in
effect any retirement, life insurance, medical insurance or disability plan in
which you were participating of as the date of this Award Agreement, except, as
to any such plan, where RSL provides you with a plan that provides substantially
comparable benefits or where the discontinuation of such plan applies generally
with respect to
Xxxxxxxx X. Xxxxxxxx
January 4, 2006
Page 3
the employees of RSL (or, in the case of a plan furnished only to a specified
group of RSL employees, with respect to such group).
Options which do not become exercisable pursuant to the preceding
provisions of this Award Agreement shall expire and terminate in their entirety
without becoming exercisable.
For purposes of application of the foregoing provisions relating to the
exercisability of the Options, the following procedures shall apply:
Each determination of Pre-Tax Operating Income shall be made by Delphi,
based upon a statement of operations of the RSL Companies for the applicable
period conforming to the provisions of Exhibit A hereto and in form and
substance reasonably acceptable to Delphi.
Delphi shall notify you in writing, within 105 days following the close of
the Performance Period, of its determination as to the level of aggregate
Pre-Tax Operating Income achieved and, based on such determination, the extent
to which the Options have become exercisable pursuant to the second (or, if
applicable, third) paragraph of this Award Agreement. Options having become
exercisable, as described in such notice, shall for all purposes of the Plan be
exercisable immediately as of the date of such notice.
Options that become exercisable as provided herein will, if not sooner
exercised or terminated pursuant to the provisions hereof, terminate at the
close of business on December 28, 2015. The Options are in all respects subject
to each of the terms and conditions of the Plan, a copy of which is attached
hereto as Exhibit B, except as otherwise provided herein and except that: (i)
the provisions of Sections 5(b)(iii), (iv), (vi) and (viii) of the Plan will not
limit your ability to exercise, following a termination of your employment by
RSL or for the other reasons set forth therein, Options that have become
exercisable as of the date of such termination or that become exercisable
thereafter pursuant to the third paragraph of this Award Agreement; provided,
however, that the Options will terminate in their entirety upon the occurrence
of a Breach of
Xxxxxxxx X. Xxxxxxxx
January 4, 2006
Page 4
Confidentiality on your part occurring subsequent to such termination of
employment; (ii) for purposes of Section 5(b)(v) of the Plan, your discharge for
cause shall result in the termination of Options that are exercisable at the
time of such discharge only where the Committee determines that the discharge
was based on an event of the type described in clause (ii) of the definition of
"Cause" above; and (iii) notwithstanding the provisions of Section 5(b)(ix) of
the Plan, the exercise price for the Options may be paid by your directing that
Delphi withhold from the Option shares a number of shares having a market value,
at the time of exercise, equal to such exercise price, so long as such payment
method will not, in Delphi's judgment, result in adverse accounting consequences
for Delphi; and (iv) the provisions of Section 8(a) of the Plan shall not apply
to the Options.
In addition, RSL, by its execution of this Award Agreement, has agreed that
if it terminates your employment without Cause or if you terminate your
employment for Good Reason (as such term is defined above) subsequent to the
occurrence of a Change of Ownership, and all or a portion of the Options remain
outstanding as of the date (the "Termination Date") of such termination (whether
such Options are then exercisable for shares of Delphi or another company, cash
or other property), then, so long as the Performance Condition has then been
satisfied and unless, in connection with such termination, the Committee (or, if
applicable, such other committee, person or entity as then has the authority to
do so) effects an Accelerated Vesting with respect to such remaining Options,
RSL shall pay or cause to be paid to you the Black-Scholes Value of such
remaining Options within thirty (30) days following the Termination Date. The
foregoing agreement (the "Contingent Payment Agreement") is contingent on the
approval thereof by RSL's Board of Directors, which approval will be sought at
the next regular meeting of such Board scheduled for February 8, 2006. For
purposes of this paragraph:
"Change of Ownership" shall mean, in addition to the events specified in
the definition of such term contained in the Plan, the occurrence of any
transaction pursuant to which Delphi ceases to own, directly or indirectly, a
majority of the total voting power of the voting securities of RSL.
Xxxxxxxx X. Xxxxxxxx
January 4, 2006
Page 5
"Performance Condition" shall mean the attainment by the RSL Companies, for
the period commencing on January 1, 2004 through and including the full calendar
quarter most recently having been completed as of the Termination Date, of
aggregate Pre-Tax Operating Income in an amount representing a compound average
annualized growth rate of at least eleven percent (11%), as compared with the
2003 base amount of $80,998,000. For example, as to a Termination Date occurring
on January 12, 2006, the Performance Condition would relate to the period from
January 1, 2004 through December 31, 2005, and would require that aggregate
Pre-Tax Operating Income for such period equal at least $189,705,416.
"Accelerated Vesting" shall mean the acceleration of the exercisability of
the Options in their entirety, effective as of the Termination Date, to the
extent that such Options have not previously become exercisable pursuant to the
terms thereof.
"Black-Scholes Value" shall mean the fair value of the Options, as of the
Termination Date, determined pursuant to the standard Black-Scholes option
pricing model by a nationally recognized public accounting firm designated by
the Board of Directors of RSL, in consultation with the Committee, and engaged
at RSL's expense.
Finally, in accordance with Section 6(d) of the Plan, this will confirm
that you may, upon written notice to Delphi, transfer the Options, for or
without consideration, to members of your immediate family (as defined below),
to a partnership or limited liability company in which one or more of your
immediate family members are the only partners or members, or to a trust or
trusts established for your exclusive benefit or the exclusive benefit of one or
more members of your immediate family. Any Options held by the transferee will
continue to be subject to the same terms and conditions that were applicable to
the Options immediately prior to the transfer, except that the Options will be
transferable by the transferee only by will or the laws of descent and
distribution. For purposes hereof, "immediate family" means your children,
grandchildren, and spouse. You are further advised that, under existing rules of
the Securities and Exchange Commission, any Form S-8
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January 4, 2006
Page 6
registration statement filed by Delphi relating to the Plan will not cover the
exercise of Options transferred for consideration, and therefore, such exercise
would be required to be covered by an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), or otherwise be exempt from
registration under the 1933 Act, and shares of Stock acquired on such exercise
would constitute "restricted securities" within the meaning of Rule 144 under
the 1933 Act. No assurance can be given that, under such circumstances,
registration under the 1933 Act with respect to such exercise or such shares can
or will be effected or that an exemption from such registration will be
available.
If you are in agreement with and accept each of the terms and conditions of
the Options, as described above, please confirm such agreement and acceptance by
executing and dating both counterparts of this Award Agreement and returning one
fully executed counterpart to me. The other counterpart should be retained for
your files.
Very truly yours,
Xxxx X. Xxxxxxx
Vice President, Secretary
and General Counsel
Agreed to and accepted:
RELIANCE STANDARD LIFE INSURANCE COMPANY
(as to the Contingent Payment Agreement)
By:
---------------------------------
Xxxxxx Xxxxxxxxxx
Chairman of the Board
Date:
------------------------------------- ----------------------------------
Xxxxxxxx X. Xxxxxxxx
EXHIBIT A
TO
STOCK OPTION AWARD AGREEMENT
General
Capitalized terms used but not defined herein shall have the meanings given
to them in the Stock Option Award Agreement to which this Exhibit A is attached
(the "Award Agreement"). For purposes of the Award Agreement, "Pre-Tax Operating
Income" shall mean the operating income of the RSL Companies, excluding realized
investment gains and losses, net of interest expense and before extraordinary
gain or loss and federal income tax expense, all as determined in accordance
with Generally Accepted Accounting Principles, as in effect as of January 1,
2004 ("GAAP"), subject to the Special Adjustments for which this Exhibit A
provides.
Special Adjustments
Adjustment events: Each of the following shall constitute an Adjustment
Event for purposes of the Award Agreement:
(A) the receipt by Delphi Financial Group, Inc. ("DFG") from the RSL
Companies of stockholder dividends exceeding (i) $16,300,000 in the
aggregate during the period consisting of Delphi's 2004, 2005 and 2006
fiscal years or (ii) $27,200,000 in the aggregate during the period
consisting of the 2004, 2005, 2006, 2007 and 2008 fiscal years (the
"Performance Period");
(B) the making by DFG of capital and/or surplus contributions to any
of the RSL Companies at any time during the Performance Period, regardless
of the form of such contribution, which, taken together with any previous
such contributions during the Performance Period, exceed $10,000,000 in the
aggregate;
(C) the acquisition by DFG, directly or indirectly, of a company or a
division or business unit thereof by merger, consolidation, purchase of
equity interests or assets or any other similar transaction, the business
activities of which are substantially related to any of the business
activities then conducted (or intended to be conducted subsequent to such
acquisition) by the RSL
Companies.
Upon the occurrence of an Adjustment Event, DFG executive management, in
consultation with the Chief Executive Officer of the RSL Companies, may
recommend to the Committee any amendments or modifications to the
conditions to vesting of the Options relating to the financial performance
of the RSL Companies, as set forth in the second paragraph of the Award
Agreement (the "Vesting Provisions"), which DFG executive management
believes in good faith to be necessary or appropriate to take into account
the effect of such Adjustment Event, including but not limited to the
adjustment of one or more of the Pre-Tax Operating Income thresholds set
forth therein. It is anticipated that such adjustments will consist of
reductions (in the case of an Adjustment Event described in clause (A)
above) and increases (in the case of an Adjustment Event described in
clause (B) above) in such thresholds, respectively, by applying an
appropriate interest factor to the relevant amounts paid as dividends or
contributed to capital, as the case may be.
Upon receipt of any such recommendation, the Committee shall determine in
its sole discretion whether to amend or modify the Vesting Provisions based
on the relevant Adjustment Event, and the terms and conditions of any such
amendment or modification. Any such amendment or modification shall be
communicated in writing to, and shall be final and binding on, each holder
of Stock options whose terms contain goals relating to Pre-Tax Operating
Income for the Performance Period (collectively, the "RSL Optionholders").
For the purpose of avoidance of doubt, no such amendment or modification
shall be deemed to have materially and adversely affected the rights of any
RSL Optionholder under the Options for any purpose of Section 9(d) of the
Plan.
Employee option expenses: SFAS 123 expenses attributable to options granted
to RSL employees on or after January 1, 2004 (other than the options
granted to the RSL Optionholders) shall be included as items of expense.
Arbitration
Delphi shall provide each RSL Optionholder with a detailed written
calculation supporting Delphi's determination as to
whether the applicable goal has been achieved (each, a "Delphi
Determination") and, where such calculation indicates such goal having been
achieved, confirming the number of Options having become exercisable as a
result thereof, within ninety (90) days after the completion of the
Performance Period. If a majority of the RSL Optionholders shall disagree
with any Delphi Determination, the RSL Optionholders shall give written
notice of such disagreement to Delphi within ten (10) business days after
receipt of such Delphi Determination. If within twenty (20) business days
after Delphi's receipt of the notice of disagreement from the RSL
Optionholders referenced in the immediately preceding sentence, Delphi and
the RSL Optionholders are unable to agree with regard to any Delphi
Determination, the disagreement may be submitted to arbitration by either
Delphi or the RSL Optionholders, which arbitration determination shall be
final and binding on the parties. The party instituting the arbitration
procedures shall give written notice to the other party of its desire to
arbitrate and such notice shall specify the name and address of the person
designated to act as an arbitrator on its behalf. Within twenty (20)
business days after the service of this notice, the other party shall
notify the first party of the appointment of its arbitrator within the
twenty (20) business day period specified above, then the appointment of
the second arbitrator shall be made in the same manner as hereinafter
provided for the appointment of a third arbitrator in a case where the two
appointed arbitrators are unable to agree upon a third arbitrator. The two
arbitrators so chosen shall meet within 10 business days after the second
arbitrator is appointed and shall select the third arbitrator by mutual
agreement. If the two arbitrators shall fail to appoint a third arbitrator
within 10 business days after the second arbitrator is appointed, then the
third arbitrator shall be appointed by the American Arbitration Association
("AAA"), or any organization successor thereto, in accordance with its
prevailing rules. Each arbitrator chosen or appointed pursuant to the
foregoing provisions shall be an active or retired officer of an insurance
or reinsurance company and shall be a disinterested person.
The arbitrators shall review the provisions of this Exhibit A and the Award
Agreement, as well as any other documents or materials supplied by either
party supporting such party's position. The arbitrators shall render their
decision with regard to the disputed Delphi Determination upon the
concurrence of at least two of their number not later than thirty (30)
business days after the appointment of the third arbitrator. The decision
of the arbitrators shall be in writing and counterpart copies shall be
delivered to each of Delphi and the RSL Optionholders. In rendering their
decision, the arbitrators shall have no power to modify any of the
provisions of the Award Agreement or this Exhibit A. All arbitration
proceedings shall occur in Philadelphia, Pennsylvania. Judgment may be
entered on the award of the arbitrators and may be enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
Immediately upon a party hereto giving written notice of its desire to
arbitrate hereunder, Delphi agrees upon request to provide the RSL
Optionholders with access to the books and records of the RSL Companies
which reasonably relate to the Delphi Determinations (including, without
limitation, examination rights and the right to make abstracts or copies
from such books and records) during the normal business hours of RSL.
Each party shall pay the fees and expenses of the original arbitrator that
it appointed (or in the case of the second party, the arbitrator appointed
on its behalf if it should fail to appoint its own arbitrator). The fees
and expenses of the third arbitrator and all other expenses of the
arbitrators shall be borne by Delphi, on one hand, and the RSL
Optionholders, on the other hand, equally. Each party shall bear the
expense of its own counsel and the preparation and presentation of proof or
supportive documentation.
