EXHIBIT B AMERICAN INTERNATIONAL GROUP, INC. RELEASE AND RESTRICTIVE COVENANT AGREEMENT
Exhibit 99.3
Annex 1
EXHIBIT B
AMERICAN INTERNATIONAL GROUP, INC.
This Release and Restrictive Covenant Agreement (the “Agreement”) is entered into by and
between Xxxxx Xxxxxxx (the “Employee”) and American International Group, Inc., a Delaware
Corporation (the “Company”).
Each term defined in the American International Group, Inc. Amended and Restated Executive
Severance Plan (the “Plan”) has the same meaning when used in this Agreement.
I. Termination of Employment
The Employee’s employment with the Company and each of its subsidiaries and controlled
affiliates (collectively “AIG”) shall terminate on (the “Termination Date”) and, as
of that date, the Employee shall cease performing the Employee’s employment duties and
responsibilities for AIG and shall no longer report to work for AIG. For purposes of this
Agreement, the term “controlled affiliates” means an entity of which the Company directly or
indirectly owns or controls a majority of the voting shares.
II. Severance; Offset of Amounts Due
Subject to the following paragraph, the Employee shall receive Severance Installments (as
defined in the Plan) in the gross amount of $ , less applicable tax and benefit
withholdings paid out over months (in substantially equal weekly, biweekly, or monthly
installments) in accordance with Section IV.B of the Plan and the Company’s normal payroll
practices. The Severance Period (as defined in the Plan) shall end on , 200___
(the “Severance End Date”). Solely for purposes of the American International Group, Inc.
Retirement Plan and any life insurance benefits provided pursuant to Section IV.F of the Plan, only
that portion of the Severance Installments that is equal to the Employee’s regular salary
installments at the time of the Termination Date shall be treated as “salary” (the remainder shall
be treated as non-salary). The Employee shall also be paid accrued wages, reimbursed expenses and
days of accrued, unused vacation pay as set forth in Section IV.A of the Plan.
The Employee’s Severance Installments (and other benefits as set forth in Sections IV.C
through F of the Plan) shall be subject to reduction as set forth in Section IV.G of the Plan.
III. Other Benefits
Nothing in this Agreement modifies or affects any of the terms of any benefit plans or
programs (including, without limitation, the Company’s right to alter the terms of such plans or
programs). No further deductions or employer matching contributions shall be made on behalf of the
Employee to the Incentive Savings Plan (“ISP”) as of the last day of the pay period in which the
Termination Date occurs.
The Employee shall no longer participate or be eligible for coverage under the Short-Term and
Long-Term Disability programs, the ISP, the Supplemental Incentive Savings Plan (“SISP”) or the
Executive Deferred Compensation Plan (“EDCP”) after the Termination Date. After the Termination
Date, the Employee may decide, under the ISP, whether to elect a rollover or distribution of the
Employee’s account balance or to keep the account balance in the ISP. Under the SISP and EDCP, no
further deferrals will be permitted and a distribution because of termination of employment of the
Employee’s entire account balance under the SISP and EDCP will be paid after Termination Date
pursuant to the terms of the SISP and EDCP. The Employee shall not accrue vacation after the
Termination Date.
As set forth in Section IV.D of the Plan (but subject to Section IV.G of the Plan), the
Employee shall be entitled to participate during the Severance Period in the applicable
Company-provided health plans for active employees in which the Employee participated prior to
termination by paying on an after-tax basis the applicable employee contribution charged to active
employees receiving similar coverage. If the Employee participates in such plan, the actuarial
cost of such coverage in excess of the applicable employee contribution paid by the Employee, as
determined by the Company, shall be imputed as taxable income to the Employee.
As set forth in Section IV.F of the Plan (but subject to Section IV.G of the Plan), the
Employee shall be entitled to participate during the Severance Period in the group life insurance
benefits generally available to active employees of the Company. The Employee shall be required to
pay the costs of such coverage on the same basis as prior to the date of termination. Any portion
of the premium paid by the Company shall be imputed as taxable income to the Employee.
The Employee will continue to participate in and accrue benefits in the AIG Retirement Plan
through the Severance End Date. The AIG Retirement Plan deems an Employee on severance payroll
continuation to be a participant in the Plan. If the Employee is vested and has the age and
service to commence a benefit, benefits under the AIG Retirement Plan may commence after the last
day on payroll.
Except as set forth in this Agreement and Sections IV.C through F of the Plan, there are no
other payments or benefits due to the Employee from the Company. The Employee acknowledges and
agrees that the Company has made no representations to the Employee as to the applicability of
Section 409A of the Internal Revenue Code to any of the payments or benefits provided to the
Employee pursuant to the Plan or this Agreement.
IV. Release of Claims
In partial consideration of the payments and benefits described in Section IV of the Plan, to
which the Employee agrees the Employee is not entitled until and unless he executes this Agreement,
the Employee, for and on behalf of the Employee and the Employee’s heirs and assigns, subject to
the following two sentences hereof, hereby waives and releases any common law, statutory or other
complaints, claims, charges or causes of action of any kind whatsoever, both known and unknown, in
law or in equity, which the Employee ever had, now has or may have against AIG and its shareholders
(other than X.X. Xxxxx & Co., Inc. and Starr International Company, Inc.), successors, assigns,
directors, officers, partners, members, employees or agents (collectively, the “Releasees”), by
reason of acts or omissions which have occurred on or prior to the date that the
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Employee signs this Release, including, without limitation, any complaint, charge or cause of
action arising under federal, state or local laws pertaining to employment, including the Age
Discrimination in Employment Act of 1967 (“ADEA,” a law which prohibits discrimination on the basis
of age), the National Labor Relations Act, the Civil Rights Act of 1991, the Americans With
Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, all as amended; and all other
federal, state, local and foreign laws and regulations. By signing this Agreement, the Employee
acknowledges that the Employee intends to waive and release any rights known or unknown that the
Employee may have against the Releasees under these and any other laws; provided, that the Employee
does not waive or release claims with respect to (i) the right to enforce the Employee’s rights
under this Agreement or the Letter Agreement between the Employee and AIG dated February ___, 2010
(the “Letter Agreement”), or the Plan; (ii) any rights to indemnification that he may have under
the certificate of incorporation, the by-laws or equivalent governing documents of the Company, the
laws of the State of Delaware or any other state of which a subsidiary or affiliate of the Company
is a domiciliary, or any indemnification agreement between the Employee and AIG, or any rights to
insurance coverage under any directors’ and officers’ personal liability insurance or fiduciary
insurance policy; (iii) any accrued right the Employee may have to compensation or benefits under
applicable plans, programs or policies of AIG; (iv) any right the Employee may have to obtain
contribution as permitted by law in the event of entry of judgment against him as a result of any
act or failure to act for which Employee, on the one hand, and Company or any Releasee, on the
other hand, are jointly liable; or (v) any rights arising out of any customer relationship the
Employee has with AIG including but not limited to any claim pertaining to insurance policies,
securities or other financial instruments, investments, partnerships or brokerage accounts, ((i)
through (v) collectively, the “Unreleased Claims”). In addition, the Employee waives any claim to
reinstatement or re-employment with AIG, the Employee shall not seek or accept employment with AIG
after the Termination date and the Employee agrees not to bring any claim based upon the failure or
refusal of AIG to employ the Employee hereafter.
V. Proceedings
The Employee acknowledges that the Employee has not filed any complaint, charge, claim or
proceeding, except with respect to an Unreleased Claim, if any, against any of the Releasees before
any local, state or federal agency, court or other body (each individually a “Proceeding”). The
Employee represents that the Employee is not aware of any basis on which such a Proceeding could
reasonably be instituted. By signing this Agreement the Employee:
(a) Acknowledges that the Employee shall not initiate or cause to be initiated on his behalf
any Proceeding and shall not participate in any Proceeding, in each case, except as required by
law;
(b) Waives any right he may have to benefit in any manner from any relief (whether monetary or
otherwise) arising out of any Proceeding, including any Proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”); and
(c) Acknowledges that the Employee shall be limiting the availability of certain remedies that
the Employee may have against AIG and limiting also the Employee’s ability to pursue certain claims
against the Releasees.
Notwithstanding the above, nothing in Section V of this Agreement shall prevent the Employee from:
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(x) Initiating or causing to be initiated on his or her behalf any complaint, charge, claim or
proceeding against the Company before any local, state or federal agency, court or other body
challenging the validity of the waiver of his or her claims under the ADEA contained in Section IV
of this Agreement (but no other portion of such waiver), or
(y) Initiating or participating in an investigation or proceeding conducted by the EEOC.
VI. Time to Consider
The payments and benefits payable to the Employee under this Agreement include consideration
provided to Employee over and above anything of value to which the Employee already is entitled.
The Employee acknowledges that the Employee has been advised that the Employee has 21 days from the
date of the Employee’s receipt of this Agreement to consider all the provisions of this Agreement.
THE EMPLOYEE FURTHER ACKNOWLEDGES THAT THE EMPLOYEE HAS READ THIS AGREEMENT CAREFULLY, HAS
BEEN ADVISED BY THE COMPANY TO, CONSULT AN ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW
THE EMPLOYEE IS GIVING UP CERTAIN RIGHTS WHICH THE EMPLOYEE MAY HAVE TO XXX OR ASSERT A CLAIM
AGAINST ANY OF THE RELEASEES, AS DESCRIBED IN SECTION IV OF THIS AGREEMENT AND THE OTHER PROVISIONS
HEREOF. THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER
WHATSOEVER TO SIGN THIS AGREEMENT, AND THE EMPLOYEE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
VII. Revocation
The Employee hereby acknowledges and understands that the Employee shall have seven days from
the date of the Employee’s execution of this Agreement to revoke this Agreement (including, without
limitation, any and all claims arising under the ADEA) by providing written notice of revocation
delivered to the General Counsel of the Company no later than 5:00 p.m. on the seventh day after
the Employee has signed the Agreement. Neither the Company nor any other person is obligated to
provide any benefits to the Employee pursuant to Section IV of the Plan until eight days have
passed since the Employee’s signing of this Agreement without the Employee having revoked this
Agreement. If the Employee revokes this Agreement pursuant to this Section, the Employee shall be
deemed not to have accepted the terms of this Agreement, and no action shall be required of AIG
under any section of this Agreement.
VIII. No Admission
This Agreement does not constitute an admission of liability or wrongdoing of any kind by the
Employee or AIG.
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IX. Restrictive Covenants
A. Non-Competition/Non-Solicitation
The Employee agrees to comply with all of the terms and conditions set forth in the
Restrictive Covenant Agreement between AIG and the Employee, dated February 8, 2010.
B. Nondisparagement
The Employee agrees (whether during or after the Employee’s employment with AIG) not to issue,
circulate, publish or utter any false or disparaging statements, remarks or rumors about AIG or the
officers, directors or managers of AIG other than to the extent reasonably necessary in order to
(a) assert a bona fide claim against AIG arising out of the Employee’s employment with AIG, or (b)
respond in a truthful and appropriate manner to any legal process or give truthful and appropriate
testimony in a legal or regulatory proceeding or (c) respond in a truthful and appropriate
manner to incorrect, disparaging or derogatory statements by AIG or any of the individuals
referenced above to correct or refute any such statements.
C. Code of Conduct
The Employee agrees to abide by all of the terms of the Company’s Code of Conduct or the
Director, Executive Officer and Senior Financial Officer Code of Business Conduct and Ethics that
continue to apply after termination of employment.
D. Confidentiality/Company Property
The Employee acknowledges that the disclosure of this Agreement or any of the terms hereof
could prejudice AIG and would be detrimental to AIG’s continuing relationship with its employees.
Accordingly, until AIG publicly discloses this Agreement by a filing with the SEC or otherwise, the
Employee agrees not to discuss or divulge either the existence or contents of this Agreement to
anyone other than the Employee’s immediate family, attorneys or tax advisors or prospective
employers, business associates, partners or investors, and further agrees to use the Employee’s
best efforts to ensure that none of those individuals will reveal its existence or contents to
anyone else. The Employee shall not, without the prior written consent of AIG, use, divulge,
disclose or make accessible to any other person, firm, partnership, corporation or other entity,
any “Confidential Information” (as defined below), provided that the Employee may disclose
Confidential Information or information about the existence or content of this Agreement when
required to do so by a court of competent jurisdiction, by any governmental agency having
supervisory authority over the business of AIG, as the case may be, or by any administrative body
or legislative body (including a committee thereof) with jurisdiction to order the Employee to
divulge, disclose or make accessible such information or in order to enforce this Agreement
or any other agreement with AIG; provided, further, that in the event that the Employee is ordered
by a court or other government agency to disclose any Confidential Information, the Employee shall:
(a) Promptly notify AIG of such order;
(b) At the written request of AIG, diligently contest such order at the sole expense of AIG; and
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(c) At the written request of AIG, seek to obtain, at the sole expense of AIG, such
confidential treatment as may be available under applicable laws for any information disclosed
under such order.
Upon the Termination Date the Employee shall return AIG property, including, without limitation,
files, records, disks and any media containing Confidential Information. Notwithstanding the
foregoing, the Employee shall be entitled to retain (i) personal diaries, personal calendars,
personal phone books and personal correspondence (in each case so long as such property does not
contain other Confidential Information); (ii) information showing his compensation or relating to
reimbursement of expenses (so long as it does not contain other Confidential Information); and
(iii) copies of plans, programs and agreements relating to the Employee’s employment, or
termination thereof, with AIG. For purposes of this Section IX.D:
“Confidential Information” shall mean information concerning the financial data, strategic
business plans, product development (or other proprietary product data), customer lists, marketing
plans and other, proprietary and confidential information relating to the business of AIG [or
customers], that, in any case, is not otherwise available to the public (other than by the
Employee’s breach of the terms hereof).
E. Developments
Developments shall be the sole and exclusive property of AIG. The Employee agrees to, and
hereby does, assign to AIG, without any further consideration, all of the Employee’s right, title
and interest throughout the world in and to all Developments. The Employee agrees that all such
Developments that are copyrightable may constitute works made for hire under the copyright laws of
the United States and, as such, acknowledges that AIG is the author of such Developments and owns
all of the rights comprised in the copyright of such Developments. The Employee hereby assigns to
AIG without any further consideration all of the rights comprised in the copyright and other
proprietary rights the Employee may have in any such Development to the extent that it might not be
considered a work made for hire. The Employee shall make and maintain adequate and current written
records of all Developments and shall disclose all Developments promptly, fully and in writing to
the Company promptly after development of the same, and at any time upon request.
“Developments” shall mean all discoveries, inventions, ideas, technology, formulas, designs,
software, programs, algorithms, products, systems, applications, processes, procedures, methods and
improvements and enhancements conceived, developed or otherwise made or created or produced by the
Employee alone or with others, and in any way relating to the business or any proposed business of
AIG of which the Employee has been made aware, or the products or services of AIG of which the
Employee has been made aware, whether or not subject to patent, copyright or other protection and
whether or not reduced to tangible form, at any time during the Employee’s employment with AIG.
F. Cooperation
The Employee agrees to reasonably cooperate, to the extent such cooperation is not directly
against his own legal interest:
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(a) With AIG in connection with any litigation or regulatory matters in which the Employee may
have relevant knowledge or information, and
(b) With all government authorities on matters pertaining to any investigation, litigation or
administrative proceeding pertaining to AIG.
This cooperation shall include, without limitation, the following:
(x) To meet and confer, at a time mutually convenient to the Employee and AIG, with AIG’s
designated in-house or outside attorneys for trial preparation purposes, including answering
questions, explaining factual situations, preparing to testify, or appearing for deposition;
(y) To appear for trial and give truthful trial testimony without the need to serve a subpoena
for such appearance and testimony; and
(z) To give truthful sworn statements to AIG’s attorneys upon their request and, for purposes
of any deposition or trial testimony, to adopt AIG’s attorneys as the Employee’s own (provided that
there is no conflict of interest that would disqualify the attorneys from representing the
Employee), and to accept their record instructions at deposition.
The Company agrees to reimburse the Employee for reasonable out-of-pocket expenses (including any attorney’s fees, to the extent that the Employee reasonably believes his
separate representation is warranted) incurred by the Employee in connection with the cooperation
set forth in this paragraph. To the extent reasonably possible, the Company agrees to take into
account the Employee’s personal and business commitments and the significance of the matter in
question before requesting cooperation, and to make every reasonable effort to provide the Employee
with reasonable notice of the need for his cooperation and assistance. To the extent reasonably
possible, the Company will try to limit the Employee’s cooperation to regular business hours.
G. Provision of Information
The Employee agrees that the Employee (a) has read and understood the promises of Section IV.G
of the Plan relating to Severance Offset Amounts (as defined in the Plan) and the circumstances
under which benefits under the Plan shall be reduced on account of future employment and other
income, (b) shall provide promptly to the Claims Administrator (as defined in the Plan) or his or
her designee, as applicable, without request, all information known to the Employee that may be
applicable to determining Severance Offset Amounts and/or the Employee’s eligibility for continuing
active employee health coverage under Section IV.G of the Plan and (c) shall provide promptly to
the Claims Administrator or his or her designee, as applicable, all other information the Company
may reasonably request for purposes of determining Severance Offset Amounts and/or the Employee’s
eligibility for continuing active employee health coverage under Section IV.G of the Plan.
If the Company reasonably determines that the Employee received Severance Installments (or
other benefits as set forth in Sections IV.C through F of the Plan) that should not have been paid
or delivered because of Severance Offset Amounts under Section IV.G of the Plan, the Employee shall
be obligated to repay to AIG, immediately
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upon being notified of this and in a cash lump sum, such amounts that should not have been
paid or delivered (which shall, for the avoidance of doubt, be calculated on a pre-tax basis).
X. Enforcement
If at any time (a) the Employee materially breaches any of the provisions of this Agreement or
(b) the Plan Administrator of the Plan determines that grounds existed, on or prior to the
Termination Date, including prior to the Effective Date of the Plan, for AIG to terminate the
Employee’s employment for “Cause” (as defined in the Plan), (y) no further payments or benefits
shall be due to the Employee under this Agreement and/or the Plan; and (z) the Employee shall be
obligated to repay to AIG, immediately upon being notified of this and in a cash lump sum, the
amount of any Severance Installments and other Severance benefits (other than any amounts received
by the Employee under Section IV.D, E or F) previously received by the Employee under this
Agreement and/or the Plan (which shall, for the avoidance of doubt, be calculated on a pre-tax
basis); provided that the Employee shall in all events be entitled to receive accrued wages and
expense reimbursement and accrued but unused vacation pay as set forth in Section IV.A of the Plan.
The Employee acknowledges and agrees that AIG’s remedies at law for a breach or threatened
breach of any of the provisions of Sections IX.A, B, D and E of this Agreement would be inadequate,
and, in recognition of this fact, the Employee agrees that, in the event of such a breach or
threatened breach, in addition to any remedies at law, AIG, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may then be available.
In addition, AIG shall be entitled to immediately cease paying any amounts remaining due or
providing any benefits to the Employee pursuant to Section IV of the Plan upon a determination by
the “Plan Administrator” (as defined in the Plan) that the Employee has violated any provision of
Section IX of this Agreement, subject to payment of all such amounts upon a final determination, by
a court of competent jurisdiction, that the Employee had not violated Section IX of this Agreement.
XI. General Provisions
A. No Waiver; Severability
A failure of the Company or any of the Releases to insist on strict compliance with any
provision of this Agreement shall not be deemed a waiver of such provision or any other provision
hereof. If any provision of this Agreement is determined to be so broad as to be unenforceable,
such provision shall be interpreted to be only so broad as is enforceable, and in the event that
any provision is determined to be entirely unenforceable, such provision shall be deemed severable,
such that all other provisions of this Agreement shall remain valid and binding upon the Employee
and the Releasees.
B. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD
TO ITS CONFLICT OF LAWS PROVISIONS OR THE CONFLICT OF
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LAWS PROVISIONS OF ANY OTHER JURISDICTION WHICH WOULD CAUSE THE APPLICATION OF ANY LAW OTHER
THAN THAT OF THE STATE OF NEW YORK. THE EMPLOYEE CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS IN NEW YORK.
C. Entire Agreement/Counterparts
This Agreement constitutes the entire understanding and agreement between the Company and the
Employee with regard to all matters herein; provided, however, that Section 11 of the Letter
Agreement (“Tax Matters”) shall apply to all payments under Section IX.F. of this Agreement. There
are no other agreements, conditions, or representations, oral or written, express or implied, with
regard thereto. This Agreement may be amended only in writing, signed by the parties hereto. This
Agreement may be signed in counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. For the avoidance of doubt,
this Agreement shall be the sole release applicable to the Employee as a condition to his receipt
of severance under the Plan.
D. 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 if delivered: (a)
personally; (b) by overnight courier service; (c) by facsimile transmission; or (d) by United
States registered mail, return receipt requested, postage prepaid, addressed to the respective
addresses, as set forth below, or to such other address as either party may have furnished to the
other in writing in accordance herewith; provided that notice of change of address shall be
effective only upon receipt. Notices shall be deemed given as follows: (x) notices sent by
personal delivery or overnight courier shall be deemed given when delivered; (y) notices sent by
facsimile transmission shall be deemed given upon the sender’s receipt of confirmation of complete
transmission; and (z) notices sent by United States registered mail shall be deemed given two days
after the date of deposit in the United States mail.
If to the Employee, to the address as shall most currently appear on the records of the Company.
If to the Company, to
American International Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: General Counsel
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
| EMPLOYEE |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
| AMERICAN INTERNATIONAL GROUP, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
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