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EXHIBIT 10.2
REINSURANCE AGREEMENT
between
RELIANCE STANDARD LIFE INSURANCE COMPANY
and
ORACLE REINSURANCE COMPANY LTD.
This Agreement is made and entered into on the __ day of __________,
1997 by and between Reliance Standard Life Insurance Company, a corporation
duly organized under the insurance laws of the State of Illinois (hereinafter
referred to as "Ceding Company"), and Oracle Reinsurance Company Ltd., a
corporation duly organized under the insurance laws of Bermuda (hereinafter
referred to as "Reinsurer").
WHEREAS, the parties desire to provide for the reinsurance on a quota
share basis by the Reinsurer of a portion of Ceding Company's liabilities under
group long-term disability claims incurred prior to January 1, 1996 and
outstanding as of the Effective Date, as defined below, on the terms more
specifically provided below;
NOW, THEREFORE, the parties agree as follows:
I. APPROVAL
This Agreement shall have no force or effect until it shall have been
approved or deemed approved by the Director of Insurance of the State of
Illinois as and in the manner required by the Illinois Insurance Code and the
regulations thereunder (collectively, the "Illinois Laws").
II. REINSURANCE
The reinsurance provided for hereunder shall become effective as of
12:01 a.m. on _________, 1997 (the "Effective Date").
III. BUSINESS COVERED
Ceding Company agrees to cede, and Reinsurer agrees to accept as
indemnity reinsurance, _____________( %) (the "Reinsured Percentage") of
Ceding Company's liabilities with respect to claims
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incurred under Ceding Company's group long-term disability policies prior to
January 1, 1996 which are open and outstanding as of the Effective Date (the
"Reinsured Claims"). This Agreement shall not, however, relate in any way to
liabilities with respect to Reinsured Claims which are the subject of
reinsurance cessions effected by Ceding Company prior to the Effective Date,
and such liabilities shall be disregarded for purposes of applying all of the
provisions of this Agreement.
IV. REINSURANCE PREMIUM
Ceding Company shall pay to Reinsurer, within ten (10) days of receipt
of the approval referenced in Section I hereof, or upon such other date to
which Ceding Company and Reinsurer mutually agree, an initial reinsurance
premium which shall be equal to the Reinsured Percentage of Ceding Company's
aggregate statutory reserves with respect to the Reinsured Claims, as required
by applicable regulatory authorities (the "Reinsured Claim Reserves"),
determined as of the Effective Date, less the sum of an initial ceding
commission equal to $________ and federal excise tax in the amount equal to 1%
of the Reinsured Claim Reserves, together with interest on the amount of the
Reinsured Claim Reserves for the period beginning on the Effective Date and
ending on the date of such payment at the rate of six percent (6%) per annum.
V. REPORTS AND RECONCILIATION
A. Quarterly Reports and Payments
Ceding Company will furnish to Reinsurer within thirty (30)
days after the close of each calendar quarter during which this Agreement is in
effect, commencing with the calendar quarter ending on December 31, 1997, on
forms mutually acceptable to Ceding Company and to Reinsurer, the following
information relating to the Reinsured Claims with respect to such quarter:
1. total benefit amounts paid with respect to Reinsured
Claims;
2. the amount of the expense allowance, which for
purposes hereof shall equal three percent (3%) of benefits paid with
respect to the Reinsured Claims during the applicable calendar
quarter;
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3. the total amount of the Covered Claim Expenses (as
defined in Section VI hereof) incurred by Ceding Company during such
calendar quarter; and
4. the total amount of the Reinsured Claim Reserves as
of the end of such calendar quarter.
Reinsurer shall remit to Ceding Company, in cash, the Reinsured
Percentage multipled by the sum of (a) the amount described in clause 1 above,
(b) the amount described in clause 2 above and (c) the amount described in
clause 3 above, all as reflected in each such report, within ten (10) days of
receipt of such report.
B. Annual Investment Return Commission
1. Ceding Company shall be entitled to share, on an
annual basis, in a portion of the Investment Return of Reinsurer on
the reserves maintained by Reinsurer with respect to the Reinsured
Claims (the "Reinsurer's Reserves"). The amount of such portion shall
be equal to the lesser of (a) the product of (i) seventy percent (70%)
of the amount by which the Investment Return for the applicable
calendar year, expressed as a percentage, exceeds six percent (6%),
multiplied by (ii) the Average Reserves or (b) two percent (2%) of the
Average Reserves for such calendar year, as increased, in either case,
by any Carryover Amount existing as of the end of such calendar year.
For purposes of the preceding paragraph and the formula contained
therein:
"Investment Return" shall mean the Reinsurer's net investment income
earned after investment expenses plus realized gains and losses
divided by the product of (i) one-half (1/2) and (ii) the sum of the
Reinsurer's total invested assets as of the first day of the
applicable calendar year and the Reinsurer's total invested assets as
of the last day of such calendar year. For purposes of the Investment
Return Commission calculation in 1997, the year of the inception of
this Agreement, and the year of termination of this Agreement, the
Investment Return shall be calculated based upon the dates the
Agreement was in force on an annualized basis.
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"Average Reserves" shall mean the product of (a) one-half (1/2) and
(b) the sum of the Reinsurer's Reserves as of the first day of the
applicable calendar year and the Reinsurer's Reserves as of the last
day of such calendar year.
"Carryover Amount" shall mean, as to each calendar year beginning with
calendar year 1998, the cumulative sum of any amounts in the preceding
calendar years by which the amount obtained pursuant to clause (b) of
such formula exceeded the amount obtained pursuant to clause (a) of
such formula, and which amounts have not already been applied so as to
increase the amount payable pursuant to such formula.
2. Reinsurer will furnish to Ceding Company within
fifteen (15) days after the close of each calendar year during which
this Agreement is in effect, commencing with the calendar year ending
on December 31, 1997, on forms mutually acceptable to Ceding Company
and to Reinsurer, reports setting forth the amounts of the Investment
Return and the Average Reserves for such calendar year, along with the
amounts of any Carryover Amount existing as of the end of such
calendar year, including, in each case, supporting calculations. Each
payment due pursuant to this Section shall be made by Reinsurer to
Ceding Company within ten (10) days of its receipt of the calculation
thereof from Ceding Company.
VI. CLAIMS
All settlements made by Ceding Company with respect to the Reinsured
Claims shall under all circumstances be binding upon Reinsurer. Reinsurer
shall pay the Reinsured Percentage of the Covered Claim Expenses, net of any
portion thereof for which Ceding Company is entitled to be reimbursed from any
third party reinsurer, relating to any contest or compromise of a Reinsured
Claim, and Reinsurer shall share in the total amount of savings in the same
proportion. "Covered Claim Expenses" shall include costs of investigation,
legal fees, court costs, interest charges, and extracontractual payments or
damages not resulting from the negligence or willful misconduct of Ceding
Company, if any, relating to the Reinsured Claims. Compensation of salaried
officers and employees shall not be considered Covered Claim Expenses.
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VII. LETTERS OF CREDIT
A. Reinsurer agrees to maintain, at all times during which any
liabilities or obligations to Ceding Company under this Agreement remain
outstanding, one or more letters of credit from a financial institution or
institutions acceptable to Ceding Company, the terms of which letters of credit
shall comply with all provisions of the Illinois Laws as may be necessary in
order for Ceding Company to receive a reduction from the Reinsured Claim
Reserves in the full amount of the reinsurance ceded hereunder. Reinsurer shall
cause the terms of such letters of credit to be amended as may be necessary to
assure continued compliance with the Illinois Laws in the event of any changes
or modifications that may occur thereto from time to time, except to the extent
that such changes or modifications, by their terms, do not apply to letters of
credit issued prior to the effective date of such changes. The amount of such
letter of credit shall at all times be at least equal to the Reinsured
Percentage of the claim reserves that would be required to be held by Ceding
Company if not for the reinsurance cession provided for in this Agreement.
B. Reinsurer and Ceding Company agree that, notwithstanding any
other provisions in this Agreement, the letter(s) of credit provided by
Reinsurer pursuant to the provisions of Section VII(A), (i) may be drawn upon
by Ceding Company at any time, (ii) shall remain under the exclusive control of
Ceding Company and (iii) may be utilized by Ceding Company or its successors in
interest only for one or more of the following reasons:
1. To reimburse Ceding Company for Reinsurer's share of
premiums returned to the owners of policies reinsured under this
Agreement on account of cancellations of such policies.
2. To reimburse Ceding Company for Reinsurer's share of
surrenders and benefits or losses paid by Ceding Company under the
terms and provisions of the policies reinsured under this Agreement.
3. To fund an account with Ceding Company in an amount
at least equal to the deduction, for reinsurance ceded, from Ceding
Company's liabilities for the Reinsured Claims. This amount shall
include, but not be limited to, amounts for policy reserves, claims
and losses incurred (including losses incurred but not reported) and
unearned premium reserves.
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Ceding Company shall be liable to Reinsurer for interest at a rate
equal to a base rate, as determined from time to time by Bank of
America, plus three percent (3%), on all amounts in such account for
the period beginning when they are obtained pursuant to the letter of
credit until the time they actually become due to Ceding Company under
this Agreement.
4. To pay any other amounts Ceding Company claims are
due under this Agreement. Ceding Company shall return to Reinsurer
any amounts drawn down in excess of the actual amounts required for
such amounts or any amounts that are subsequently determined not to be
due.
5. To pay existing liabilities between Ceding Company
and Reinsurer upon a termination of this Agreement pursuant to Section
XIII hereof.
The foregoing provisions of this Section VII(B) shall be applied
without diminution because of insolvency on the part of Ceding Company or
Reinsurer.
VIII. INSPECTION
Each party hereto shall allow the other party to inspect, at all
reasonable times, all of its books and records with respect to all transactions
under or relating to this Agreement. Each party shall hold in confidence the
results of such inspection.
IX. ERRORS AND OMISSIONS
If any failure of either party hereto to comply with any provision of
this Agreement is shown to have been unintentional, and if such party promptly
takes appropriate steps to cure such failure, such party shall not be deemed by
reason of such failure to be in breach of its obligations under this Agreement.
The failure of either party to make any remittance to the other required by
this Agreement shall not be deemed to be a breach of this Agreement if cured
within five (5) business days after written notice of the party to receive such
remittance that such remittance is due and unpaid, unless such notice is the
third or greater such notice given in any one calendar year. Such notice will
be effective upon receipt.
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X. INSOLVENCY
The reinsurance provided under this Agreement shall be payable by
Reinsurer on the basis of the liability of Ceding Company with respect to the
Reinsured Claims without diminution because of the insolvency of Ceding
Company. In the event of the insolvency of Ceding Company, payments by
Reinsurer shall be made directly to Ceding Company or its liquidator, receiver
or statutory successor.
In such event, the liquidator, receiver, or statutory successor of
Ceding Company shall give written notice of the pendency of a Reinsured Claim
against Ceding Company on the Reinsured Policy within a reasonable time after
such Reinsured Claim is filed in the insolvency proceeding. During the
pendency of any such claim, Reinsurer may investigate such claim and interpose,
at its own expense, in the proceeding where such claim is to be adjudicated any
defenses which Reinsurer considers available to Ceding Company or its
liquidator, receiver, or statutory successor. The expense thus incurred by
Reinsurer shall be chargeable against Ceding Company as part of the expense of
liquidation to the extent of a proportionate share of the benefit which may
accrue to Ceding Company solely as a result of the defense undertaken by
Reinsurer.
XI. ARBITRATION
In the event of any dispute arising under this Agreement either party
hereto may elect that such dispute be resolved by arbitration. In order to
make such an election, such party must select an arbitrator and give written
notice to the other party of its election and of the name and address of the
arbitrator so selected. Within twenty (20) days after receiving that notice,
the other party shall select an arbitrator and give the first party notice of
the name and address of said arbitrator. If the other party fails to notify
the first party of the name and address of an arbitrator within such 20-day
period, the arbitrator selected by the first party shall serve as sole
arbitrator. Within twenty (20) days thereafter the two arbitrators so selected
shall select a third arbitrator. Should the two arbitrators be unable to agree
upon a choice of the third within such time period, each shall provide the name
of an acceptable third arbitrator and lots shall be drawn to select the third.
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The arbitrators shall conduct any arbitration under this Agreement in
accordance with the rules of the American Arbitration Association. Each party
shall submit its case to the arbitrators within thirty (30) days after the
third arbitrator is chosen. The Court of Arbitrators will be held in
Philadelphia, PA.
The arbitrators shall be active or retired and disinterested officers
of life or health insurance companies other than the two parties to this
Agreement or any of their affiliates and shall be familiar with the reinsurance
business. The arbitrators shall base their decision on the terms and
conditions of this Agreement and, as necessary, on the generally accepted
customs and practices of the life and health insurance and life and health
reinsurance industry rather than solely on a strict interpretation of
applicable law. They shall decide by a majority of votes, and their written
decision shall be binding upon the parties and shall not be subject to appeal.
The cost of arbitration, including the fees of the arbitrators, shall be borne
by the losing party unless the arbitrators shall decide otherwise.
The parties intend this Section XI to be enforceable in accordance
with the Federal Arbitration Act, including any amendments thereto which are
subsequently adopted. In the event that either party refuses to submit to
arbitration as required by this Section XI, the other party may request a
United States Federal District Court to compel arbitration in accordance with
the Federal Arbitration Act. Both parties consent to the jurisdiction of any
such court to enforce this Article and to confirm and enforce the performance
of any award of the arbitrators.
XII. NO THIRD PARTY BENEFICIARIES
This Agreement is solely between Ceding Company and Reinsurer.
Performance of the respective obligations of each party under this Agreement
shall be rendered solely to the other party. In no event shall any
policyholder or insured of Ceding Company, any beneficiary of such policyholder
or insured or any other person or entity (other than Ceding Company and
Reinsurer) have any rights under this Agreement and Ceding Company shall remain
solely liable to such policyholder, insured or beneficiary of such insured.
Without limiting the generality of the foregoing, Reinsurer shall have no
direct or indirect obligation to insureds, claimants or beneficiaries under the
Reinsured Claims or the policies under which such claims arose.
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XIII. TERMINATION
A. This Agreement shall terminate upon the first to occur of any of
the following events:
1. At such time as all of Ceding Company's liabilities and
obligations with respect to the Reinsured Claims have been satisfied
or expired in their entirety, and Reinsurer has paid to Ceding Company
in full all amounts owing to Ceding Company under the provisions of
this Agreement.
2. At any time, by mutual written consent of the parties.
3. Upon the delivery to Reinsurer of an election in writing
by Ceding Company, in the event that an event constituting a Change of
Control (as defined below) occurs with respect to Reinsurer.
4. Upon the delivery to Reinsurer of an election in writing
by Ceding Company, thirty (30) or less days prior to the scheduled
expiration of one or more of the letters of credit required to be
maintained by Reinsurer pursuant to Section VII hereof if, at such
time Reinsurer has not provided assurance acceptable to Ceding
Company, in its sole discretion, that such letter or letters of credit
will be renewed for an additional term of not less than one (1) year
or replaced with one or more letters of credit meeting the
requirements of Section VII hereof and having a term or terms of no
less than one (1) year.
For purposes of Section XIII(A)(3), a "Change of Control" shall be
deemed to have occurred (1) if individuals who, as of the effective date of
this Plan, constitute the Board of Directors of Reinsurer's parent company,
Delphi International Ltd. (the "Board of Directors" generally and as of the
date of this Agreement the "Incumbent Board"), cease for any reason to continue
to constitute at least a majority of the directors constituting the Board of
Directors, provided that any person becoming a director subsequent to the date
of this Agreement whose election, or nomination for election by International's
shareholders, was approved by a vote of at least three-quarters (3/4) of the
then directors who are members of the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is (A) in
connection
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with the acquisition by a third person, including a "group" as such term is
used in Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended
(the "1934 Act"), of beneficial ownership, directly or indirectly, of 20% or
more of the combined voting securities ordinarily having the right to vote for
the election of directors of International(unless such acquisition of
beneficial ownership was approved by a majority of the Board of Directors who
are members of the Incumbent Board), or (B) in connection with an actual or
threatened election contest relating to the election of the directors of
International, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the ▇▇▇▇ ▇▇▇) shall be, for purposes of this Plan, considered
as though such person were a member of the Incumbent Board; or (2) if the
stockholders of International approve a merger, consolidation, recapitalization
or reorganization of International, reverse split of any class of voting
securities of International, or an acquisition of securities or assets by
International, or the sale or disposition by International of all or
substantially all of International's assets, or if any such transaction is
consummated without stockholder approval, other than any such transaction in
which the holders of outstanding International voting securities immediately
prior to the transaction receive, with respect to such International voting
securities, voting securities of the surviving or transferee entity
representing more than 60 percent of the total voting power outstanding
immediately after such transaction, with the voting power of each such
continuing holder relative to other such continuing holders not substantially
altered in the transaction; or (3) if the stockholders of International approve
a plan of complete liquidation of International.
B. In the event of any termination of this Agreement pursuant to
subsections 2, 3 or 4 of Section XIII(A), Reinsurer shall pay to Ceding
Company, no later than the effective date of such termination, the full amount
of the reserves required to be maintained by Ceding Company with respect to the
portion of the Reinsured Claim Reserves ceded pursuant to this Agreement, along
with all other amounts owing to Ceding Company under the provisions of this
Agreement, as of such effective date.
XIV. SETOFFS
Ceding Company and Reinsurer may setoff any balance due and payable by
it to the other party against any balance due and payable from such other
party.
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XV. CURRENCY
All amounts as to which payments are provided for hereunder shall be
paid in U.S. dollars.
XVI. NOTICES
Any notice, report, statement, or other communication provided for or
appropriate under this Agreement shall be in writing and be given by personal
delivery, by a nationally recognized overnight delivery service, or by first
class United States mail, postage prepaid, as follows:
To Reinsurer:
Oracle Reinsurance Company Ltd.
Clarendon House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇:
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To Ceding Company:
Reliance Standard Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
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Either party may change its address for purposes of receipt of any such
communication by giving ten (10) days notice of such change to the other party
in the manner above prescribed.
XVII. GOVERNING LAW
This Agreement shall be deemed to have been made under and shall be
governed by the laws, regulations and decisions of the State of Illinois in all
respects, including matters of construction, validity, and performance, without
giving effect to principles of conflicts of laws.
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XVIII. POLICY FORMS
Reinsurer acknowledges receipt from Ceding Company of specimen forms
of the insurance policies under which the Reinsured Claims have been incurred.
XIX. ENTIRE AGREEMENT; AMENDMENTS
This Agreement constitutes the entire agreement of the parties hereto
with respect to the Reinsured Claims and there are no understandings between
the parties other than as expressed in this Agreement. Any amendment, change
or modification to this Agreement shall be null and void unless the same is
made by a written amendment to this Agreement signed by both parties hereto.
XX. EXPENSES
Except as may be otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each of the parties hereto shall pay its own costs and expenses incident to
preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
XXI. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
parties.
XXII. ASSIGNMENT; BINDING EFFECT
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by any
of the parties hereto without the prior written consent of the other party, and
any such assignment that is attempted without such consent shall be null and
void. Subject to the preceding sentence, this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the parties and their respective
successors and permitted assigns.
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XXIII. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal,
invalid, or enforceable under any present or future law, and if the rights or
obligations of the parties hereto under this Agreement will not be materially
and adversely affected thereby, (a) such provision shall be fully severable;
(b) this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provision had never comprised a part hereof; and (c) the
remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid, or unenforceable provision
or by its severance herefrom.
XXIV. WAIVER
Any term or condition of this Agreement may be waived in
writing at any time by the party that is entitled to the benefit thereof. A
waiver on one occasion shall not be deemed to be a waiver of the same or any
other breach or nonfulfillment on a future occasion. All remedies, either
under the terms of this Agreement, or by law or otherwise afforded, shall be
cumulative and not alternative, except as otherwise provided by law.
XXV. JURISDICTION; DESIGNATED ATTORNEY
In the event of the failure of Reinsurer to perform its
obligations under the terms of this Agreement, Reinsurer, at the request of
Ceding Company, shall (i) submit to the jurisdiction of any court of competent
jurisdiction in any state of the United States, (ii) comply with all
requirements necessary to give such court jurisdiction, and (iii) shall abide
by the final decision of the court or of any appellate court in the event of an
appeal. Reinsurer hereby designates the Illinois Director of Insurance (or an
attorney designated by such Director) as Reinsurer's true and lawful attorney
upon whom may be served any lawful process in any action, suit, or proceeding
instituted by or on behalf of the Ceding Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first written above.
Attest: RELIANCE STANDARD LIFE INSURANCE COMPANY
By:
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Name:
Title:
Attest: ORACLE REINSURANCE COMPANY LTD.
By:
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Name:
Title:
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