EXHIBIT 10.22
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of November 16, 2003,
between Travelers Property Casualty Corp., a Connecticut corporation (the
"Company"), and Xxxxxx X. Xxxx (the "Executive") shall be effective upon the
closing of the transactions contemplated by that Agreement and Plan of Merger
dated November 16, 2003, by and among the Company, The St. Xxxx Companies, Inc.
and Travelers Acquisition Corp. (the "Merger").
W I T N E S S E T H
WHEREAS, the Executive currently serves as the Chairman and Chief
Executive Officer of the Company pursuant to the terms of an employment
agreement dated as of March 7, 2002, which became effective upon the
consummation of the initial public offering of the Company (the "Initial
Agreement");
WHEREAS, in contemplation of the Merger, the Company and the Executive
desire to amend and restate the Initial Agreement and to enter into this
Agreement as to the terms of his continued employment by the Company; and
WHEREAS, in connection with the Merger, the ultimate parent surviving
corporation following the Merger shall assume and agree to perform this
Agreement and all references to the "Company" herein shall be deemed to refer to
such surviving entity.
NOW THEREFORE, in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POSITION/DUTIES.
(a) During the Employment Term (as defined in Section 2 below),
the Executive shall serve as an employee Executive Chairman of the Board of
Directors of the Company (the "Board"). In this capacity the Executive shall
have such duties, authorities and responsibilities required of, and commensurate
with, his status as Chairman of the Board and as provided in the Company's
by-laws. The Executive will consult with the Chief Executive Officer and the
Board on the strategic direction of the Company. The Executive shall report
solely and directly to the Board and will jointly preside with the Chief
Executive Officer at meetings of the Board.
(b) During the Employment Term, the Executive shall devote
substantially all of his business time (excluding periods of vacation and other
approved leaves of absence) in the performance of his duties with the Company,
provided the foregoing will not prevent the Executive from (i) participating in
charitable, civic, educational, professional, community or industry affairs or
serving on the board of directors or advisory boards of other companies;
provided, however, that the Executive shall not serve as a director on more than
three boards of directors or advisory boards of other for profit companies or
with regard to any competitive company without the prior written approval of the
Board, and (ii) managing his and his family's
personal investments so long as such activities in the aggregate do not
materially interfere with his duties hereunder.
(c) Upon the consummation of the Merger, the Executive shall be
elected as a director of the Company with a term that extends until at least the
end of the Employment Term. During the Employment Term, the by-laws of the
Company shall provide that the Executive may only be removed from his position
as Chairman of the Board by a vote of at least two-thirds of the members of the
entire Board.
2. EMPLOYMENT TERM. The Executive's term of employment under this
Agreement shall be for a term commencing on the Merger Date and ending on
December 31, 2005 (the "Employment Term"), subject to earlier termination as
provided in Section 7, below.
3. BASE SALARY. The Company agrees to pay the Executive a base
salary (the "Base Salary") at an annual rate of not less than his current base
salary of $750,000, payable in accordance with the regular payroll practices of
the Company, but not less frequently than monthly. The Executive's Base Salary
shall be subject to annual review by the Board (or a committee thereof) and may
be increased, but not decreased, from time to time by the Board. No increase to
Base Salary shall be used to offset or otherwise reduce any obligations of the
Company to the Executive hereunder or otherwise. The base salary as determined
herein from time to time shall constitute "Base Salary" for purposes of this
Agreement.
4. BONUS. During the Employment Term, the Executive shall be
eligible to participate in the Company's bonus and other incentive compensation
plans and programs for the Company's senior executives at a level commensurate
with his position. The Executive shall have the opportunity to earn an annual
bonus measured against objective financial criteria to be determined by the
Board (or a committee thereof) in accordance with the Company's bonus and other
incentive compensation plans and programs under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code").
5. STOCK OPTIONS.
(a) ASSUMED OPTIONS. The stock option (the "Option") granted to
the Executive by Travelers Property Casualty Corp. on March 22, 2002, shall be
assumed and converted in accordance with the terms and conditions of the Merger
and shall be fully vested upon the consummation of the Merger in accordance with
the terms of the Initial Agreement. The Option shall remain exercisable until
the expiration of the stated 10-year term; provided, however, that in the event
that the Executive becomes an employee or director of any of the five companies
listed on Exhibit A hereto following any termination of employment, the Option
shall remain exercisable for a period of 30 days after the Executive commences
such employment or directorship, but in no event beyond the stated 10-year term,
and thereafter be cancelled. The agreement evidencing the Option shall be
amended to reflect the provisions of this Section 5(a).
(b) DISCRETIONARY GRANTS. In addition to the Option, at the sole
discretion of the Committee, the Executive shall be eligible for additional
annual grants of stock options and other equity awards. Any future equity grant
shall provide that such award shall be fully vested and immediately exercisable
in the event that (x) the Executive's employment is
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terminated by the Company without Cause or the Executive voluntarily terminates
his employment for Good Reason or (y) the Executive dies or becomes Disabled or
a change in control (as defined in the Company's then stock incentive plan)
occurs. Upon the foregoing acceleration events, any future stock option grant
shall remain exercisable for at least two years but in no event beyond the
stated term.
(c) TRANSFERABILITY. The Option may be transferred, in whole or in
part, to a Family Member (as defined under the Securities Act of 1933, as
amended or Securities Act Form S-8). A Family Member who is a transferee of the
Option shall not be eligible to receive a reload stock option upon the exercise
of the Option.
(d) REGISTRATION. At all times during and after the Employment
Term, the Company shall maintain registrations on Form S-8 and/or another
applicable form.
6. EMPLOYEE BENEFITS.
(a) BENEFIT PLANS. The Executive shall be entitled to participate
in any employee benefit plan of the Company or its affiliates including, but not
limited to, equity, pension, thrift, profit sharing, medical coverage,
education, or other retirement or welfare benefits that the Company has adopted
or may adopt, maintain or contribute to for the benefit of its senior executives
at a level commensurate with his positions. Except as otherwise provided herein,
the Executive's prior service with Citigroup shall be recognized for eligibility
and vesting purposes under any of the Company's or its affiliates' equity
compensation and benefit plans, including, but not limited to, being classified
as a "retiree." Except as otherwise provided in this Agreement, any vesting
under the Company's or its affiliates equity compensation and benefit plans
shall be subject to and in accordance with the terms of the applicable plan or
program.
(b) VACATIONS. The Executive shall be entitled to an annual paid
vacation in accordance with the Company's policy applicable to senior
executives, but in no event less than four weeks per calendar year (as prorated
for partial years and accrued, but not used, with respect to prior years), which
vacation may be taken at such times as the Executive elects with due regard to
the needs of the Company.
(c) PERQUISITES. The Company shall provide to the Executive, at
the Company's cost, all perquisites to which other senior executives of the
Company are generally entitled to receive and such other perquisites which are
suitable to the character of the Executive's position with the Company and
adequate for the performance of his duties hereunder. To the extent legally
permissible, the Company shall not treat such amounts as income to the
Executive.
(d) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of
appropriate documentation, the Executive shall be reimbursed in accordance with
the Company's expense reimbursement policy for all reasonable and necessary
business and entertainment expenses incurred in connection with the performance
of his duties hereunder.
(e) OFFICE SPACE/TRAVEL.
(i) During the Employment Term, the Company shall provide
the Executive with suitable, furnished offices (and staff) in New York
and/or Connecticut for use in
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connection with the business of the Company. The Executive shall also
be provided a supplemental office in St. Xxxx, Minnesota.
(ii) The parties recognize that, for security purposes, it
will be necessary for the Executive to travel by private aircraft for
business and personal purposes and shall make appropriate arrangements
with regard thereto. The Company shall fully gross up for tax purposes
any deemed income to the Executive arising pursuant to use of such
aircraft for business purposes, so that the economic benefit is the
same to the Executive as if such use was provided on a non-taxable
basis to the Executive.
7. TERMINATION. The Executive's employment and the Employment
Term shall terminate on the first of the following to occur:
(a) DISABILITY. Upon 30 days written notice by the Company to the
Executive of termination due to Disability, while the Executive remains
Disabled, but only after the Executive has been Disabled and unable to perform
his material duties for at least six consecutive months. For purposes of this
Agreement, "Disability" or "Disabled" shall be determined in accordance with the
terms and procedures of the Company's applicable Long Term Disability Plan,
except with respect to any termination of employment provision contained
therein.
(b) DEATH. Automatically on the date of death of the Executive.
(c) CAUSE. Immediately upon written notice by the Company to the
Executive of a termination for Cause, provided that such notice is given within
90 days after the discovery of the Cause event by the Chairman of the Audit
Committee of the Board or Chairman of the Compensation and Governance Committee
of the Board. "Cause" shall mean (i) the willful misconduct of the Executive
with regard to the Company that is materially injurious to the Company,
provided, however, that no act or failure to act on the Executive's part shall
be considered "willful" unless done, or omitted to be done, by the Executive not
in good faith and without reasonable belief that his action or omission was in
the best interests of the Company; (ii) the willful and continued failure of the
Executive to attempt to substantially perform the Executive's duties with the
Company (other than any such failure resulting from incapacity due to physical
or mental illness) which failure is not remedied within 15 business days of
written notice from the Company specifying the details thereof; or (iii) the
conviction of the Executive of (or the pleading by the Executive of nolo
contendere to) any felony (other than traffic related offenses or as a result of
vicarious liability).
Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause without (i) advance written notice provided to
the Executive not less than 14 days prior to the date of termination setting
forth the Company's intention to consider terminating the Executive, including a
statement of the date of termination and the specific detailed basis for such
consideration for Cause; (ii) an opportunity of the Executive, together with his
counsel, to be heard before the Board during the 14 day period ending on the
date of termination; (iii) a duly adopted resolution of the Board, after such
opportunity, stating that in accordance with the provisions of the next to the
last sentence of this Section 7(c), that the actions of the Executive
constituted Cause and the basis thereof; and (iv) a written determination
provided by the Board setting forth the acts and omissions that form the basis
of such termination
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of employment. Any determination by the Board hereunder shall be made by the
affirmative vote of at least a two-thirds majority of the members of the Board
(other than the Executive). Any purported termination of employment of the
Executive by the Company which does not meet each and every substantive and
procedural requirement of this Section 7 shall be treated for all purposes under
this Agreement as a termination of employment without Cause.
(d) WITHOUT CAUSE. Upon written notice by the Company to the
Executive of an involuntary termination without Cause, other than for death or
Disability.
(e) GOOD REASON. Upon written notice by the Executive to the
Company of a termination for Good Reason. "Good Reason" shall mean, without the
express written consent of the Executive, the occurrence of any of the following
events unless such events are fully corrected in all material respects by the
Company within 30 days following written notification by the Executive to the
Company that he intends to terminate his employment hereunder for one of the
reasons set forth below:
(i) any reduction or diminution (except temporarily
during any period of Disability) in the Executive's then titles or
positions, or a material reduction or diminution in the Executive's
then authorities, duties or responsibilities or reporting requirements
with the Company, including but not limited to a failure to elect the
Executive to the Board or removal of the Executive from the Board; or
(ii) a material breach by the Company of any provisions of
this Agreement, including, but not limited to, any reduction in any
part of the Executive's then compensation (including Base Salary) or
benefits or any failure to timely pay any part of Executive's
compensation (including Base Salary and bonus, if any) or to provide
the benefits contemplated herein; or
(iii) the failure of the Company to obtain and deliver to
the Executive a satisfactory written agreement from any successor to
the Company or pursuant to Section 24(b) hereof to assume and agree to
perform this Agreement; or
(iv) any termination by the Executive during the 30-day
period immediately following the six-month anniversary of any change in
control (as defined in the Company's then stock incentive plan) that
occurs after the Merger Date.
(f) WITHOUT GOOD REASON. Upon written notice by the Executive to
the Company of the Executive's voluntary termination of employment without Good
Reason (which the Company may, in its sole discretion, make effective earlier
than any notice date).
8. CONSEQUENCES OF TERMINATION.
(a) DISABILITY. Upon such termination, the Company shall pay or
provide the Executive (i) any unpaid Base Salary through the date of termination
and any accrued vacation; (ii) any unpaid bonus as declared or, if not then
declared, as determined by the Board in good faith, with respect to the
performance year ending preceding the date of termination; (iii) reimbursement
for any unreimbursed expenses incurred through the date of termination; (iv) a
pro-rata portion of the Executive's bonus for the performance year in which the
Executive's
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termination occurs (determined by multiplying the amount the Executive would
have received had employment continued through the end of the performance year,
as determined by the Board in good faith, by a fraction, the numerator of which
is the number of days during the performance year of termination that the
Executive is employed by the Company and the denominator of which is 365); and
(v) all other payments, benefits or fringe benefits to which the Executive may
be entitled under the terms of any applicable compensation arrangement or
benefit, equity or fringe benefit plan or program or grant or this Agreement
(collectively, "Accrued Benefits"). If the Executive's employment should be
terminated pursuant to Section 7(a), the numerator in the calculation of the
pro-rata portion of the Executive's bonus under Section 8(a)(iv) shall exclude
any period during which the Executive is classified by the Company as an
inactive employee.
(b) DEATH. In the event the Employment Term ends on account of the
Executive's death, the Executive's estate shall be entitled to any Accrued
Benefits.
(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON, ETC. If the
Executive's employment should be terminated (v) by the Company for Cause, or (w)
by the Executive without Good Reason, or (x) upon expiration of the Employment
Term on December 31, 2005, or (y) upon Executive's retirement, the Company shall
pay to the Executive any Accrued Benefits (other than those described in
Sections 8(a)(ii) and (iv) if the Executive's employment is terminated by the
Company for Cause).
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the
Executive's employment by the Company is terminated prior to December 31, 2005
(x) by the Company other than for Cause or (y) by the Executive for Good Reason,
then the Company shall pay or provide the Executive with (i) Accrued Benefits;
and (ii) shall pay to the Executive a lump sum in cash within 30 days of the
date of termination in an amount equal to the product of (A) the sum of (1) the
Base Salary in effect immediately prior to termination and (2) the highest
annual bonus paid or payable to the Executive for the three performance years
prior to the date of termination (or such lesser number of performance years as
shall actually have been completed prior to the date of termination) multiplied
by (B) three. For purposes of the foregoing, no bonus paid or payable with
respect to performance years beginning before January 1, 2002 shall be taken
into account for purposes of determining the lump sum payment payable pursuant
to this Section 8(d).
(e) Any termination payments made and benefits provided under this
Agreement to the Executive shall be in lieu of any termination or severance
payments or benefits for which the Executive may be eligible under any of the
plans, policies or programs of the Company or its affiliates.
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9. RELEASE. Any and all payments made and benefits provided under
this Agreement to the Executive upon termination of employment including but not
limited to, those referenced in paragraph 8 shall be contingent upon the full
execution of a general release of all claims by the Executive against the
Company and its affiliates in a form substantially in the form of Exhibit B
hereto and mutually agreed upon by the Executive and the Company. Accrued
Benefits other than those described in Sections 8(a)(ii) and (iv) shall not be
contingent on the execution of such release.
10. EXCISE TAX. In the event that the Executive becomes or has
already become entitled to payments and/or benefits which would constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Code
(including without limitation as a result of this Agreement, the Initial
Agreement or any other plan, arrangement or agreement with the Company or any
affiliate (including Travelers Property Casualty Corp.), or payments and/or
benefits from any person whose actions result in a change of ownership or
effective control of the Company or Travelers Property Casualty Corp. covered by
Section 280G(b)(2) of the Code or any person affiliated with the Company or
Travelers Property Casualty Corp. or such person), the provisions of Exhibit C
shall apply. For purposes of Exhibit C, the term "Change in Control" shall mean
a change of ownership or effective control (as such terms are used in Section
280G and the regulations thereunder) heretofore or hereafter of the Company or
Travelers Property Casualty Corp.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto.
Except as provided in Section 11(b) below, no party may assign or delegate any
rights or obligations hereunder without first obtaining the written consent of
the other party hereto.
(b) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company and
any successor to its business and/or assets, which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(c) This Agreement shall inure to the benefit of and be
enforceable by the Executive and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would still be payable to
him hereunder had he continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
his devisee, legatee or other designee or, if there is no such designee, to his
estate.
12. NOTICE. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) on the date of delivery if delivered
by hand, (ii) on the date of transmission, if delivered by confirmed facsimile,
(iii) on the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (iv) on the fourth business day
following
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the date delivered or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At the address (or to the facsimile number) shown on the
records of the Company
If to the Company:
At the address (or to the facsimile number) of the Company's
principal executive office
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. (a) CONFIDENTIALITY. The Executive acknowledges that in his
employment hereunder he will occupy a position of trust and confidence. The
Executive shall not, except as in good faith deemed necessary or desirable by
the Executive to perform his duties hereunder, or as required by applicable law
or legal process, without limitation in time or until such information shall
have become public or known in the Company's industry other than by the
Executive's unauthorized disclosure, disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Company. "Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective employees, clients and customers that is not
disclosed by the Company for financial reporting purposes and that was learned
by the Executive in the course of his employment by the Company, including
(without limitation) any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists and all papers, resumes, and records
(including computer records) of the documents containing such Confidential
Information.
(b) NON-SOLICITATION OF EMPLOYEES. The Executive recognizes that
he possesses and will possess confidential information about other employees of
the Company relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with customers of
the Company. The Executive recognizes that the information he possesses and will
possess about these other employees is not generally known, is of substantial
value to the Company in developing its business and in securing and retaining
customers, and has been and will be acquired by him because of his business
position with the Company. The Executive agrees that, during the Employment Term
and for the one year period thereafter, he will not, directly or indirectly,
solicit or recruit any non-administrative or non-clerical employee of the
Company whose W-2 earnings for the immediately preceding calendar year were
$200,000 or above for the purpose of being employed by him or by any competitor
of the Company on whose behalf he is acting as an agent, representative or
employee.
(c) NON-SOLICITATION OF CUSTOMERS. The Executive recognizes that
he possesses and will possess confidential and proprietary business information
about customers of the Company and that the customer information he possesses
and will possess is not generally known, is of substantial value to the Company
in developing its business and securing and
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retaining customers, and will be acquired by him because of his business
position with the Company. The Executive agrees that, during the Employment Term
and for the one-year period thereafter, he will not personally solicit or induce
any customers of the Company with whom he had contact during his employment with
the Company to divert any portion of its business with the Company to another
person or entity or direct that such customers be targeted for diversion as a
result of (i) his prior relationship with them on behalf of the Company or (ii)
an effort targeted primarily at customers of the Company.
(d) EQUITABLE RELIEF AND OTHER REMEDIES. The Executive
acknowledges and agrees that the Company's remedies at law for a breach or
threatened breach of any of the provisions of this Section would be inadequate
and, in recognition of this fact, the Executive agrees that, in the event of
such a breach or threatened breach, in addition to any remedies at law, the
Company, without posting any bond, shall be entitled to obtain equitable relief
in the form of specific performance, temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
(e) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 13 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(f) SURVIVAL OF PROVISIONS. Without effect as to the survival of
other provisions of this Agreement intended to survive the termination or
expiration of the Executive's employment, the obligations contained in this
Section 13 shall survive the termination or expiration of the Executive's
employment with the Company and shall be fully enforceable thereafter.
14. COORDINATION. With regard to the equity grants, payments and
benefits described in this Agreement (the "Contract Rights") the provisions of
this Agreement, to the extent that they are more favorable to the Executive,
shall control over any provisions to the contrary in any plan, program, or
equity grant applicable to the Executive. The Company shall not impose any
restrictions not contained in this Agreement on the Contract Rights, and shall
not condition any future equity grants, payments, or benefits not contemplated
by this Agreement upon the Executive's agreement to any additional restrictions
on the Contract Rights. However, nothing shall limit the Company's discretion to
include any new or different terms, conditions, or restrictions in any future
equity grant, payment or benefit to the Executive not contemplated by this
Agreement.
15. ATTORNEY'S FEES.
(a) In the event of any dispute arising out of or under this
Agreement or the Executive's employment with the Company and the arbitrator
determines that the Executive has prevailed on the issues in the arbitration,
the Company shall, upon presentment of appropriate documentation, promptly, at
the Executive's election, pay or reimburse the Executive for all reasonable
legal and other professional fees, costs of arbitration and other expenses
incurred in connection therewith by the Executive.
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(b) The Company shall promptly pay the Executive's reasonable
costs of entering into this Agreement, including the reasonable fees and
expenses of his counsel.
(c) The Company shall gross up for tax purposes any deemed income
to the Executive arising pursuant to the payments provided under this Section
15, so that the economic benefit is the same to the Executive as if such
payments were provided on a non-taxable basis to the Executive. Payments
pursuant to this Section 15 shall be made on a current ongoing basis.
16. SECTION HEADINGS. The section headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
17. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement, other than injunctive relief under Section 13(d)
hereof, shall be settled exclusively by arbitration, conducted before a single
arbitrator in New York, New York in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect. The decision of the arbitrator will be final and binding upon the
parties hereto. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Nothing herein shall limit either the right of the Company
or the Executive to seek injunctive relief in a court of applicable
jurisdiction.
20. INDEMNIFICATION. In addition to any other rights of
indemnification of the Executive, the Company hereby covenants and agrees to
promptly indemnify the Executive (or, in the event of his death, his heirs,
executors, administrators or legal representatives) and hold him harmless to the
fullest extent permitted by law against and in respect to any and all actions,
suits, proceedings, claims, demands, judgments, costs, expenses (including
attorney's fees), penalties, fines, settlements, losses, and damages resulting
from, or in connection with, the Executive's employment with, and serving as a
director of, the Company, including but not limited to as an officer and
director of any subsidiary or as a fiduciary of any employee benefit plan. The
Company, within 10 days of presentation of invoices, shall advance to the
Executive reimbursement of all legal fees and disbursements reasonably incurred
by the Executive in connection with any potentially indemnifiable matter;
provided, however, that to the extent required by applicable law, in order to
receive such advanced fees and disbursements, the Executive must first sign an
undertaking reasonably satisfactory to the Company that he will promptly repay
the Company all advanced fees and disbursements in the event it is finally
determined in accordance with law that the Executive cannot be indemnified for
the matter at issue under applicable law. The burden of proving that
indemnification of the Executive is not permissible at law shall be on the
Company.
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21. LIABILITY INSURANCE. The Company shall cover the Executive
under directors and officers liability insurance both during and, while
potential liability exists (but no less than six years), after the term of this
Agreement in the same amount and to the same extent, if any, as the Company
covers its other officers and directors.
22. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or director as may be
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement together with all exhibits hereto sets
forth the entire agreement of the parties hereto in respect of the subject
matter contained herein. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
23. FULL SETTLEMENT. Except as set forth in this Agreement, the
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including without limitation, set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obliged to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned by the
Executive as a result of employment by another employer.
24. REPRESENTATIONS, ETC.
(a) The Company represents and warrants that there is no legal or
other impediment or limitation to the Company's performance of its obligations.
(b) On the Merger Date, the Company shall deliver to the Executive
a satisfactory written agreement from the ultimate parent surviving corporation
following the Merger assuming and agreeing to perform this Agreement.
(c) The Executive represents and warrants to the Company that he
has the legal right to enter into this Agreement and to perform all of the
obligations on his part to be performed hereunder in accordance with its terms
and that he is not a party to any agreement or understanding, written or oral,
which could prevent him from entering into this Agreement or performing all of
his obligations hereunder.
(d) To the extent that after the Merger any separate prior
employee benefit plan or incentive plan continues for the senior executives
previously employed by the separate prior entities, the Executive shall continue
in the former Travelers Property Casualty Corp. plan. To the extent that senior
executives are moved from one plan to another, (i) if all continuing senior
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executives are moved, the Executive also shall be moved, and (ii) if only some
senior executives are moved, the Executive shall be moved if, and only if, such
other plan is more beneficial to the Executive. The parties may vary the
foregoing by written agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TRAVELERS PROPERTY CASUALTY CORP.
By: /s/ Xxx X. Xxxxx
Title: Chief Financial Officer
XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
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EXHIBIT A
LIST OF COMPETITORS
1. American International Group
2. The Hartford Financial Services, Inc.
3. Chubb Corporation
4. Allstate Corporation
5. Progressive Corporation
EXHIBIT B
FORM OF RELEASE
Agreement and General Release ("Release"), by and between Xxxxxx X.
Xxxx ( "your" or "you") [INSERT NAME] (the "Company").
1. Pursuant to your Employment Agreement with the Company dated
as of _______, 2003 ("Employment Agreement"), your [termination/retirement] will
be effective at the close of business on ___________, 200_ ("Termination or
Retirement Date").
2. You agree that as of the Effective Date of this Agreement
(defined in Paragraph 15) you will resign as an officer, director, or member of
any internal and any outside directorships, memberships, or other affiliations
in which you participate as a representative of the Company [to the extent not
remaining in such capacity].
3. Following your Termination or Retirement Date you will receive
information as to COBRA elections from the COBRA administrator for certain
benefits (i.e., medical and dental) that you may wish to continue.
4. In consideration for the payments and benefits provided under
the Employment Agreement upon your [termination/retirement] pursuant to Section
8 of the Employment Agreement, you, on your behalf, and on behalf of your
agents, assignees, attorneys, heirs, executors, and administrators (collectively
referred to as "Releasors"), covenant not to xxx and release the Company, its
past and present parents, affiliates, successors, assigns, subsidiaries,
divisions, and related business entities (collectively referred to as the
"Company") and its or their current or former officers, directors, shareholders,
employees, agents and representatives (collectively referred to as "Releasees")
from any and all liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of money, controversies, agreements, promises, damages,
pay, bonus, stock, stock options, costs, expenses, attorneys' fees, and remedies
of any type that Releasors may have by reason of any matter, cause, act or
omission including, but not limited to, those arising out of or in connection
with your employment with or separation from the Company. This covenant not to
xxx and general release shall apply to all disputes, claims, liens, injuries and
damages, whether known or unknown, occurring at any time on or before the
Effective Date of this Agreement and includes, but is not limited to, a full
release of:
- any claims under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in employment Act of 1967, the Rehabilitation
Act of 1973, the Civil Rights Act of 1866, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, the Civil Rights Act of 1991, the Equal Pay Act of
1963, the Family and Medical Leave Act of 1993, the Fair Labor
Standards Act of 1938, the Older Workers Benefit Protection Act of
1990, the Occupational Safety and Health Act of 1970, the Worker
Adjustment and Retraining Notification Act of 1989, the New York
State Human Rights Law, the New York City Human Rights Ordinance,
and the Connecticut Human Rights and Opportunities Law, and
- any other federal, state, or local statute or regulation regarding
employment, employment discrimination, termination of employment,
retaliation, equal opportunity, and wage and hour.
You specifically understand that you are releasing, among other claims, claims
based on age, race, color, sex, sexual orientation or preference, marital
status, religion, national origin, citizenship, veteran status, disability, and
any other legally protected categories as well as other compensation-related
claims. This also includes a release of any claims for breach of contract, any
tortious act or other civil wrong, attorneys' fees, and all compensation and
benefit claims including without limitation claims concerning salary, bonus, and
any awards, grants or purchases under any equity and incentive compensation plan
or program, and any separation pay plan maintained by the Company or any of its
affiliates or subsidiaries. You acknowledge that this release is intended to
include, without limitation, all claims known or unknown that you have or may
have against the Company and Releasees through the Effective Date of this
Agreement, including but not limited to those which arise out of or relate to
your employment with or separation from the Company. Notwithstanding anything
herein, you expressly reserve and do not release (a) your rights under any
applicable pension plan or any other employee benefit plan (other than any
equity compensation plan), under any vacation or sick leave policy or under
COBRA, (b) your vested rights to any equity under any equity compensation plan,
(c) claims arising after the Effective Date of this Agreement, or with respect
to the enforcement of this Agreement, (d) your rights of indemnification or
contribution to which you were entitled immediately prior to the Termination or
Retirement Date under the Company's By-laws, the Company's Certificate of
Incorporation or otherwise with regard to your service as an officer or director
of the Company or your service as a fiduciary with regard to any employee
benefit plan, including, without limitation, pursuant to Section 20 of the
Employment Agreement, (e) your rights as a stockholder or (f) your rights under
Sections 10 and 21 of the Employment Agreement.
5. In consideration of the covenants and undertakings set forth
herein, the Company hereby covenants not to xxx and releases you from liability
for any and all acts or omissions including but not limited to, those occurring
during or in connection with your employment with or separation from the Company
or as a stockholder of the Company. This covenant not to xxx and general release
shall apply to all disputes, claims, liens, injuries and damages, whether known
or unknown, occurring at any time on or before the Effective Date of this
Agreement. This release and covenant not to xxx shall not apply to any breach of
this Agreement or any claims against you by the Company for any debt or credit
obligations including but not limited to any insurance, loan, mortgage, or
credit card debt owed by you to the Company.
6. (a) You represent that you have not and will not file,
directly or indirectly, any claims against the
Company or the Releasees in any court, administrative
agency, or arbitration, concerning any claims
released herein.
(b) In the event that you have filed, directly or
indirectly, claims against the Company or Releasees
in any forum which are released herein, you agree to
notify [INSERT TITLE AND ADDRESS], and to withdraw
with
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prejudice any such claims before signing this
Agreement. You acknowledge and agree that you are not
eligible to receive the payments and benefits set
forth in Section 8 of the Employment Agreement prior
to such withdrawal.
7. To the extent permitted by applicable law, you agree not to
participate or assist in any action, complaint, charge, claim, or proceeding
against the Company or the Releasees of any kind on behalf of any other person
or entity (except pursuant to a court order, in response to a valid subpoena, or
as requested by the Company or its attorneys) with regard to matters relating to
your period of employment with the Company. You further agree that you will not
seek or accept any award, judgment or settlement from any source or proceeding
against the Company or the Releasees with respect to any claim or right arising
from any act, omission, transaction, or occurrence through the Effective Date of
this Agreement released herein.
8. Nothing contained in this Agreement is intended to prohibit or
restrict you from providing truthful information concerning your employment or
the Company's business activities to any government, regulatory or
self-regulatory agency.
9. Subject to your reasonable business commitments, you agree to
reasonably cooperate with the Company and its counsel with regard to any past,
present, or future legal matters which relate to or arise out of the business
you conducted on behalf of the Company. You will be entitled to your reasonable
actual out-of-pocket expenses incurred in connection with providing such
cooperation, including reasonable travel and reasonable attorneys' fees,
following submission of appropriate documentation.
10. The terms of this Agreement are not an admission of liability
or wrongdoing by either you or the Company.
11. You agree to return to the Company all documents,
correspondence, memoranda, disks, audio or video tapes, written and other files,
notes, manuals, handbooks, and account records (whether stored electronically or
otherwise) in your possession, including but not limited to Confidential
Information as defined in your Employment Agreement, upon the execution of this
Agreement. Your "possession" includes any person or entity to whom you may have
given such information other than in connection with the performance of your
duties for the Company.
12. Except with respect to Paragraph 4 above, the invalidity or
unenforceability of any provision of this Agreement shall have no effect upon
and shall not impair the validity or enforceability of any other provision of
this Agreement.
13. This Agreement shall be governed by the laws of the State of
New York (regardless of conflict of laws principles) as to all matters including
without limitation validity, construction, effect, performance, and remedies.
14. You acknowledge that: (i) you have read and understand each of
the provisions of this Agreement; (ii) you have consulted with an attorney prior
to executing this Agreement; (iii) you have been given twenty-one (21) days from
your receipt of this Agreement to review it and
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to consider your decision to sign it; (iv) you are entering into this Agreement
of your own free will; and (v) this Agreement is not intended to be a
prospective waiver of claims arising after the Effective Date of this Agreement.
15. This Agreement shall not become effective or enforceable until
eight (8) days following its execution by you ("Effective Date") during which
time you or the Company may revoke this Agreement by notifying [INSERT TITLE],
at the address above, in writing.
16. Notwithstanding anything in this Agreement, the provisions in
your Employment Agreement which are intended to survive termination of your
Employment Agreement, including but not limited to those contained in Section 13
thereof, shall survive and continue in full force and effect.
[COMPANY NAME] Agreed to and accepted by:
_____________________________ _______________________________
By: [Name] Xxxxxx X. Xxxx
_____________________________ _______________________________
Date Date
-4-
EXHIBIT C
GROSS-UP PROVISIONS
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that the Executive shall become entitled to
payments and/or benefits provided by this Agreement or any other amounts in the
"nature of compensation" (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company or any affiliate, any
person whose actions result in a change of ownership or effective control of the
Company covered by Section 280G(b)(2) of the Code or any person affiliated with
the Company or such person) as a result of such change in ownership or effective
control of the Company (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of paragraph (c), all determinations
required to be made under this Exhibit C, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by a nationally
recognized accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. The Accounting Firm shall
be jointly selected by the Company and the Executive and shall not, during the
two years preceding the date of its selection, have acted in any way on behalf
of the Company or its affiliated companies. If the Company and the Executive
cannot agree on the firm to serve as the Accounting Firm, then the Company and
the Executive shall each select a nationally recognized accounting firm and
those two firms shall jointly select a nationally recognized accounting firm to
serve as the Accounting Firm. All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Exhibit C, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
paragraph (c) hereof and the Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of a Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which he or she gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company shall bear
and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Executive harmless,
on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto)
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this paragraph (c), the Company shall control
all proceedings taken in connection with such contest and, at
its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences
with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax
claimed and xxx for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such
claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free
basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided the
Executive
-2-
shall not be required by the Company to agree to any extension
of the statute of limitations relating to the payment of taxes
for the taxable year of the Executive with respect to which
such contested amount is claimed to be due unless such
extension is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to paragraph (c) hereof, the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of paragraph (c) hereof)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
paragraph (c) hereof, a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
(e) If, pursuant to regulations issued under Section 280G or 4999
of the Code, the Company and the Executive were required to make a preliminary
determination of the amount of an excess parachute payment and thereafter a
redetermination of the Excise Tax is required under the applicable regulations,
the parties shall request the Accounting Firm to make such redetermination. If
as a result of such redetermination an additional Gross-Up Payment is required,
the amount thereof shall be paid by the Company to the Executive within five
days of the receipt of the Accounting Firm's determination. If the
redetermination of the Excise Tax results in a reduction of the Excise Tax, the
Executive shall take such steps as the Company may reasonably direct in order to
obtain a refund of the excess Excise Tax paid. If the Company determines that
any suit or proceeding is necessary or advisable in order to obtain such refund,
the provisions of paragraph (c) hereof relating to the contesting of a claim
shall apply to the claim for such refund, including, without limitation, the
provisions concerning legal representation, cooperation by the Executive,
participation by the Company in the proceedings and indemnification by the
Company. Upon receipt of any such refund, the Executive shall promptly pay the
amount of such refund to the Company. If the amount of the income taxes
otherwise payable by the Executive in respect of the year in which the Executive
makes such payment to the Company is reduced as a result of such payment, the
Executive shall, no later than the filing of his income tax return in respect of
such year, pay the amount of such tax benefit to the Company. In the event there
is a subsequent redetermination of the Executive's income taxes resulting in a
reduction of such tax benefit, the Company shall, promptly after receipt of
notice of such reduction, pay to the Executive the amount of such reduction. If
the Company objects to the calculation or recalculation of the tax benefit, as
described in the preceding two sentences, the Accounting Firm shall make the
final determination of the appropriate amount. The Executive shall not be
obligated to pay to the Company the amount of any further tax
-3-
benefits that may be realized by him or her as a result of paying to the Company
the amount of the initial tax benefit.
(f) Nothing in this Exhibit C is intended to violate the
Xxxxxxxx-Xxxxx Act and to the extent that any advance or repayment obligation
hereunder would do so, such obligation shall be modified so as to make the
advance a nonrefundable payment to the Executive and the repayment obligation
null and void.
-4-
