EXHIBIT 99.3
[on Company letterhead]
January 28, 2003
Xx. Xxxxx X. Xxxxxxx, Xx.
00 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Dear Xxx:
This letter agreement (the "Agreement") will confirm our understanding
regarding your separation from Trenwick Group Ltd. (the "Company").
Section 1
Termination Date
The effective date of your separation from all positions and employment
with the Company and the Subsidiaries is January 28, 2003 (your "Termination
Date"). For purposes of this Agreement, the term "Subsidiary" shall mean any
corporation, partnership, joint venture or other entity during any period in
which at least a fifty percent interest in such entity is owned, directly or
indirectly, by the Company (or a successor to the Company).
Section 2
Payments and Benefits
You shall be entitled to compensation, benefits, payments, and
distributions from the Company in accordance with this Section 2.
(a) Prior Salary Amounts. The Company shall pay to you the amount of all
earned and previously unpaid salary for the period ending on your
Termination Date.
(b) Bonus Payment. You shall not be entitled to any bonus payments for the
year ending December 31, 2002 or for any future year.
(c) Medical Benefits. For the period beginning on your Termination Date, your
entitlement to continue medical insurance coverage under the benefit plans
of the Company will be determined in accordance with the provisions of
section 4980B of the Internal Revenue Code and section 601 of the Employee
Retirement Income Security Act (sometimes referred to as "COBRA
coverage"). You shall not be entitled to any other medical, dental or
health insurance coverage under the benefit plans of the Company, or
reimbursement by the Company for any third party medical, dental or health
insurance, for yourself, your surviving spouse or your dependents.
(d) Life Insurance Benefits. You currently are covered under the Company's
group life insurance policy maintained through Unum Provident ("UNUM").
The Company shall pay to you a lump sum amount on the Initial Payment Date
(as defined below) determined as follows: if UNUM does not waive the
premium on the group life policy for your coverage, the amount shall be
$45,000, and if UNUM does waive the premium on
1
the group life policy, the amount shall be $22,182.50. If UNUM does waive
the premium on the group life policy, your coverage shall be transferred
to you as of May 23, 2003 (to the extent permitted by the policy) and you
shall be responsible for all costs of such transfer, and for any and all
premiums for such coverage after May 23, 2003. The Company shall pay any
premium due for the period beginning on the Termination Date and ending on
May 23, 2003 and shall be entitled to receive any refund from UNUM for the
premiums paid for that period. If UNUM does not waive the premium on the
group life policy, your coverage under the UNUM policy shall be
transferred to you (to the extent permitted by the policy) as of your
Termination Date, and you shall be responsible for all costs of such
transfer, and for any and all premiums for such coverage after your
Termination Date. If UNUM has not determined as of the Initial Payment
Date whether it will waive the premium on the group life policy for your
coverage, you shall receive a lump sum amount of $22,182.50 on the Initial
Payment Date and your coverage under the UNUM policy shall be transferred
to you (to the extent permitted by the policy) and you shall be
responsible for the premiums on the earlier of (i) the date UNUM
determines that it will not waive the premium on the group life policy, if
applicable and (ii) May 23, 2003. If UNUM decides after the Initial
Payment Date that it will not waive the premium on the group life policy
for your coverage, you shall receive an additional amount of $22,817.50
within a reasonable period after the Company is notified in writing of the
determination.
(e) Disability Benefits. You will not be entitled to disability income
replacement payments from the Company or its Subsidiaries, and neither the
Company nor its Subsidiaries will arrange disability income replacement
coverage for you; provided, however, that you will be entitled to coverage
under the UNUM Provident Group Insurance Policy number 305419 001 in
accordance with the terms of that policy.
(f) Retirement Benefits.
(i) You will be eligible to receive retirement benefits under the Trenwick
Group Pension Plan and the Trenwick Group 401(k) Savings Plan (the
Company's "qualified plans"), based on the terms of those plans, and based
on your termination of employment having occurred on your Termination
Date.
(ii) You will receive a lump sum payment from the Company on the Initial
Payment Date of $193,733 in substitution for the value of three years of
accrual under the Company's qualified retirement plans and the Trenwick
America Corporation Unfunded Supplemental Executive Retirement Plan (the
"SERP").
(iii) You will be credited with the regular benefit to which you are
entitled under the terms of the SERP for 2002. In addition, your account
under the SERP shall be credited with interest (pursuant to subsection 4.3
of the SERP) on the date such amount should be credited to your account
during January 2003 in accordance with such subsection 4.3 of the SERP,
provided at the amount of such interest shall be computed using a rate of
4.25% per annum (rather than the rate determined in accordance with the
terms of the SERP). The payment of your benefits under the SERP shall be
governed by the terms of
2
the SERP; provided, however that you will receive a lump sum payment of
the balance of your entire account under the SERP on the Initial Payment
Date.
(g) Deferred Income. You shall be entitled to a payment of $1,500,000, payable
on the Initial Payment Date, without adjustment for earnings or losses,
representing the settlement of your Deferral Account under the
Non-Qualified Plan as those terms are used in the Employment Agreement
(defined in paragraph 5(m) of this Agreement).
(h) Financial and Tax Planning. You shall be entitled to a lump sum of $30,000
payable on the Initial Payment Date in substitution for financial and tax
planning for three years following your Termination Date.
(i) Stock Awards. As of your Termination Date, you shall forfeit all
outstanding options (whether vested or unvested) and the right to receive
additional options to purchase shares of common stock of the Company
("Company Stock") that have not been exercised as of your Termination
Date. (That is, as of your Termination Date, you will forfeit options and
the right to receive additional options on an aggregate of 835,247 shares
of Company stock). As of your Termination Date, you shall also forfeit all
restricted stock that was not vested immediately prior to your Termination
Date. (That is, as of your Termination Date, you will forfeit 29,837
shares of restricted Company stock). You shall not be entitled to any
additional stock-based awards on or after the Termination Date.
(j) Expense Reimbursement.
(i) You will be entitled to be reimbursed for the business expenses you
incurred during the period ending on your Termination Date, subject to the
rules established by the Company relating to such reimbursement.
(ii) The amount of the reimbursement due to you in accordance with the
provisions of paragraph 2(j)(i) shall be reduced by the amount of any
outstanding advances to you from the Company. To the extent that the
amount of such outstanding advances exceeds the reimbursement due to you
under paragraph 2(j)(i), you shall owe the difference to the Company, and
the Company shall be entitled to offset this amount against other amounts
due to you.
(k) Vacation. You will not accrue or be entitled to any vacation after your
Termination Date. You have no accrued unused vacation, and so are not
entitled to any amounts for accrued unused vacation.
(l) Property.
(i) As of your Initial Payment Date, ownership of the Audi A-8 currently
being provided to you by the Company will be transferred to you. The
Company shall not pay the transfer costs, insurance, expenses of operation
and/or maintenance, or any other expenses related to the transfer of
ownership of the automobile on your Termination Date or related to the
automobile for periods after your Termination Date.
3
(ii) As of your Termination Date, ownership of office furnishings and
artwork as listed on Exhibit A to this Agreement that are currently being
provided to you by the Company in your office in Stamford, Connecticut
will be transferred to you.
(m) Separation Benefits. The Company shall pay to you, on the Initial Payment
Date, a lump-sum cash separation payment of $2,175,000 reduced by the
gross amount of salary you received for the period beginning January 1,
2003 and ending on the Termination Date.
(n) Moving Expenses. The Company will reimburse you for all moving expenses
relating to moving your personal belongings from Bermuda to Redding,
Connecticut. The Company will also pay to you, as soon as practicable
after determination of your moving expenses, a Benefits Gross-Up Payment.
The "Benefits Gross-Up Payment" shall be an amount such that after payment
by you of all taxes (including any interest or penalties imposed with
respect to such taxes) including, without limitation, any foreign, U.S.,
or state income taxes imposed upon the Benefits Gross-Up Payment, you
retain amounts equal to the compensation due under the first sentence of
this paragraph (n).
(o) Other Severance Plans. Your rights under this Section 2 shall be in lieu
of any benefits that may be otherwise payable to you or on your behalf
pursuant to the terms of any severance pay arrangement of the Company or
any Subsidiary or any other, similar arrangement of the Company or any
Subsidiary providing benefits upon involuntary termination of employment
(including, without limitation, the Trenwick Group Inc. Merger Severance
Policy and the Trenwick America Corporation Severance Policy, dated
October 25, 2002).
(p) Other Benefits. Except as otherwise provided in this Agreement, you shall
not be entitled to benefits after your Termination Date under any employee
benefit plans or arrangements maintained by the Company and the
Subsidiaries.
(q) Taxes and Withholding. All amounts otherwise payable under this Agreement
shall be subject to customary withholding and other employment taxes, and
shall be subject to such other withholding as may be required in
accordance with the terms of this Agreement. Subject to the provisions
relating to the Benefits Gross-Up Payment set forth in paragraph (n)
above, you will be responsible for payment of taxes on all amounts under
this Agreement.
(r) Indemnification. The Company shall use commercially reasonable efforts to
maintain directors and officers liability insurance in commercially
reasonable amounts (as reasonably determined by the Board of Directors of
the Company), and you shall be covered under such insurance to the same
extent as other senior management employees and directors of the Company.
The responsibility to provide directors and officers liability insurance
is subject to the Company's ability to purchase such insurance. You shall
be eligible for indemnification by the Company under the Company Bye-Laws
as currently in effect. The Company agrees that it shall not take any
action that would impair your rights to indemnification under the Company
Bye-Laws, as currently in effect.
4
(s) Other Payments. Except as specified in this Section 2, or otherwise
expressly provided in or pursuant to this Agreement, you shall be entitled
to no compensation, benefits or other payments or distributions, and
references in the Xxxxxxx Release to the release of claims against the
Company shall be deemed to also include reference to the release of claims
against all compensation and benefit plans and arrangements established or
maintained by the Company and its Subsidiaries.
(t) Loan Offset. You have previously received loans from the Company which are
evidenced by promissory note dated May 11, 2001 (the "Promissory Note").
Under the terms of the Promissory Note, the aggregate principal amount of
the note plus interest becomes immediately due and payable on your
Termination Date. This Agreement modifies the Promissory Note to the
extent necessary so that all outstanding principal and interest due under
the Promissory Note will become fully due and payable on the Initial
Payment Date (provided that no interest shall be due under the Promissory
Note for periods after December 31, 2002). The outstanding principal and
interest due on the Promissory Note as of the Initial Payment Date shall
be offset against, and shall reduce the amounts you are entitled to
receive under Section 2 of this Agreement as of the Initial Payment Date.
(u) Initial Payment Date. For purposes of this Agreement, the "Initial Payment
Date" shall the first business day following the expiration of your right
to revoke the execution of this Agreement in accordance with paragraph
3(d) of Exhibit B (Xxxxxxx Release) of this Agreement (which period of
permitted revocation is seven days from the date of execution of this
Agreement, as set forth in such paragraph 3(d)).
Section 3
Covenants
(a) Assistance with Claims. You agree that, for a reasonable period after your
Termination Date (in no event less than 24 months), you will assist the
Company and the Subsidiaries in defense of any claims that may be made
against the Company and the Subsidiaries, and will assist the Company and
the Subsidiaries in the prosecution of any claims that may be made by the
Company or the Subsidiaries, to the extent that such claims may relate to
services performed by you for the Company and the Subsidiaries. You agree
to promptly inform the Company if you become aware of any lawsuits
involving such claims that may be filed against the Company or any
Subsidiary. The Company agrees to provide legal counsel to you in
connection with such assistance (to the extent legally permitted), and to
reimburse you for all of your reasonable out-of-pocket expenses associated
with such assistance, including travel expenses. For periods after your
employment with the Company terminates, the Company agrees to provide
reasonable compensation to you for such assistance. You also agree to
promptly inform the Company if you are asked to assist in any
investigation of the Company or the Subsidiaries (or their actions) that
may relate to services performed by you for the Company or the
Subsidiaries, regardless of whether a lawsuit has then been filed against
the Company or the Subsidiaries with respect to such investigation.
5
(b) Noncompetition. While you are employed by the Company, and for a period of
24 months after your Termination Date:
(i) You shall not be employed by, serve as a consultant to, or directly or
indirectly provide services to a Competitor (defined below) if: (A) the
services that you are to provide to the Competitor are the same as, or
substantially similar to, any of the services that you provided to the
Company or the Subsidiaries, and such services are to be provided with
respect to any location in which the Company or a Subsidiary had material
operations during the 12-month period prior to the Termination Date, or
with respect to any location in which the Company or a Subsidiary had
devoted material resources to establishing operations during the 12-month
period prior to the Termination Date; or (B) the trade secrets,
confidential information, or proprietary information (including, without
limitation, confidential or proprietary methods) of the Company and the
Subsidiaries to which you had access could reasonably be expected to
benefit the Competitor if the Competitor were to obtain access to such
secrets or information. For purposes of this subparagraph 3(b)(i),
services provided by others shall be deemed to have been provided by you
if you had material supervisory responsibilities with respect to the
provision of such services.
(ii) You shall not solicit or attempt to solicit any party who is then or,
during the 12-month period prior to such solicitation or attempt by you
was (or was solicited to become), a customer or supplier of the Company,
provided that the restriction in this paragraph 3(b)(ii) shall not apply
to any activity on behalf of a business that is not a Competitor.
(iii) You shall not solicit, entice, persuade or induce any individual who
is employed by the Company or the Subsidiaries (or was so employed within
90 days prior to your action) to terminate or refrain from renewing or
extending such employment or to become employed by or enter into
contractual relations with any other individual or entity other than the
Company or the Subsidiaries, and you shall not approach any such employee
for any such purpose or authorize or knowingly cooperate with the taking
of any such actions by any other individual or entity.
(iv) You shall not, directly or indirectly own an equity interest in any
Competitor (other than ownership of 5% or less of the outstanding stock of
any corporation listed on a national stock exchange or included in the
NASDAQ System).
The term "Competitor" means any enterprise (including a person, firm or
business, whether or not incorporated) during any period in which a
material portion of its business is (and during any period in which it
intends to enter into business activities that would be) materially
competitive in any way with any business in which the Company or any of
the Subsidiaries was engaged during the 12-month period prior to your
Termination Date (including, without limitation, any business if the
Company devoted material resources to entering into such business during
such 12-month period).
(c) Confidential Information. You agree that at all times (including after
your Termination Date):
6
(i) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, except as necessary to carry out your duties to
the Company and its Subsidiaries, or except to the extent that you have
express authorization from the Company, you agree to keep secret and
confidential indefinitely, all Confidential Information, and not to
disclose the same, either directly or indirectly, to any other person,
firm, or business entity, or to use it in any way. You shall, during the
continuance of your employment, use your best endeavors to prevent the
unauthorized publication or misuse of any Confidential Information.
(ii) To the extent that any court or agency seeks to have you disclose
Confidential Information, you shall promptly inform the Company, and you
shall take reasonable steps to prevent disclosure of Confidential
Information until the Company has been informed of such requested
disclosure, and the Company has an opportunity to respond to such court or
agency. To the extent that you obtain information on behalf of the Company
or any of the Subsidiaries that may be subject to attorney-client
privilege as to the Company's attorneys, you shall take reasonable steps
to maintain the confidentiality of such information and to preserve such
privilege.
(iii) Nothing in the foregoing provisions of this paragraph 3(c) shall be
construed so as to prevent you from using, in connection with your
employment for yourself or an employer other than the Company or any of
the Subsidiaries, knowledge which was acquired by you during the course of
your employment with the Company and the Subsidiaries, and which is
generally known to persons of your experience in other companies in the
same industry.
(iv) For purposes of this Agreement, the term "Confidential Information"
shall include all non-public information (including, without limitation,
information regarding litigation and pending litigation) concerning the
Company and the Subsidiaries which was acquired by or disclosed to you
during the course of your employment with the Company, or during the
course of your consultation with the Company following your Termination
Date (regardless of whether consultation is pursuant to paragraph 3(a)).
For purposes of this Agreement, the term "Confidential Information" shall
also include all non-public information concerning any other company that
was shared with the Company or a Subsidiary subject to an agreement to
maintain the confidentiality of such information. For purposes of this
Agreement, the term "Confidential Information" shall not include
information (A) which has been disclosed to the general public by the
Company, (B) which has been disclosed by the Company to one or more third
parties without restrictions of confidentiality similar to the ones set
forth in this Agreement; or (C) which is disclosed to you by a third party
who, to your knowledge following reasonable inquiry, is not subject to a
legal, contractual or fiduciary obligation of confidentiality with respect
to such information.
(v) This paragraph 3(c) shall not be construed to unreasonably restrict
your ability to disclose confidential information in an arbitration
proceeding or a court proceeding in connection with the assertion of, or
defense against any claim of breach of this Agreement. If there is a
dispute between you and the Company as to whether
7
information may be disclosed in accordance with this paragraph 3(c)(v),
the matter shall be submitted to the arbitrators or the court (whichever
is applicable) for decision.
(d) Inventions and Patents. You assign to the Company all right, title,
interest, to all patents and patent applications, all inventions,
innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (in each case
whether or not patentable), all copyrights and copyrightable works, all
trade secrets, confidential information and know-how, and all other
intellectual property rights that are conceived, reduced to practice,
developed or made by you while employed by the Company and the
Subsidiaries and that (i) relate to the Company's or any of its
Subsidiaries' actual or anticipated business, research and development or
existing or future products or services; or (ii) are conceived, reduced to
practice, developed or made using any of the equipment, supplies,
facilities, assets or resources of the Company or any of its Subsidiaries
(including, but not limited to, any intellectual property rights ) ("Work
Product"). You warrant that you have disclosed such Work Product to the
Board and will perform all actions reasonably requested by the Board of
Directors of the Company to establish and confirm the Company's ownership
(including, without limitation, assignments, consents, powers of attorney,
applications and other instruments).
(e) Disparagement. You agree that, while you are employed by the Company, and
after your Termination Date, you shall not make any false, defamatory or
disparaging statements about the Company, the Subsidiaries, or the
officers or directors of the Company or the Subsidiaries that are
reasonably likely to cause material damage to the Company, the
Subsidiaries, or the officers or directors of the Company or the
Subsidiaries. While you are employed by the Company, and after your
Termination Date, the Company agrees, on behalf of itself and the
Subsidiaries, that neither the officers nor the directors of the Company
or the Subsidiaries shall make any false, defamatory or disparaging
statements about you that are reasonably likely to cause material damage
to you.
(f) Transition.
(i) Your separation from the Company and its Subsidiaries shall be
announced by a joint statement in the form of Exhibit D of this Agreement.
You and the Company will cooperate with each other in any statements about
your separation so as not to depart materially from the joint statement
described in this subparagraph (i).
(ii) You agree to execute the resignation letter set forth in Exhibit E of
this Agreement.
(iii) As soon as practicable after this Agreement has been fully executed,
you agree to remove your personal effects from your office at the Company,
to vacate such office, to return to the Company any keys, credit cards,
passes, confidential documents or material, or other property belonging to
the Company or the Subsidiaries, and to return all writings, files,
records, correspondence, notebooks, notes and other documents and things
(including any copies thereof) containing any Confidential Information
relating to the Company or the Subsidiaries.
8
(g) Effect of Covenants. Nothing in this Section 3 shall be construed to
adversely affect the rights that the Company would possess in the absence
of the provisions of such Section.
Section 4
Release and Waiver
As part of this Agreement, and in consideration of the release provided to
the Company as set forth in Exhibit B of this Agreement, the Company shall enter
into the General Release and Waiver as set forth in Exhibit C of this Agreement,
which is attached to and forms a part of this Agreement (the "Company Release").
As part of this Agreement, and in consideration of the additional payments
provided to you in accordance with this Agreement, and in consideration of the
release provided to you as set forth in Exhibit C of this Agreement, you are
required to execute the General Release and Waiver, in the form set forth as
Exhibit B of this Agreement, which is attached to and forms a part of this
Agreement (the "Xxxxxxx Release"). This Agreement (including all Exhibits to
this Agreement), and the commitments and obligations of all parties hereunder:
(a) shall become final and binding immediately following the expiration of
your right to revoke the execution of this Agreement in accordance with
paragraph 3(d) of Exhibit B (Xxxxxxx Release);
(b) shall not become final and binding until the expiration of such right to
revoke; and
(c) shall not become final and binding if you revoke such execution.
Section 5
Miscellaneous
(a) Equitable Remedies. You acknowledge that the Company would be irreparably
injured by a violation of paragraphs 3(b), (c), or (e), and you agree that
the Company, in addition to any other remedies available to it for such
breach or threatened breach, shall be entitled to a preliminary
injunction, temporary restraining order, or other equivalent relief,
restraining you from any actual or threatened breach of paragraphs 3(b),
(c), and (e). If a bond is required to be posted in order for the Company
to secure an injunction or other equitable remedy, the parties agree that
said bond need not be more than a nominal sum.
(b) Mitigation and Set-Off. You shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment
or otherwise. The Company shall not be entitled to set off against the
amounts payable to you under this Agreement any amounts earned by you in
other employment after termination of your employment with the Company, or
any amounts which might have been earned by you in other employment had
you sought such other employment.
(c) Nonalienation. Your obligations hereunder are personal and may not be
delegated, assigned or transferred by you in any manner whatsoever, nor
are such obligations subject to involuntary alienation, assignment or
transfer. However, you may select (and change, to the extent permitted
under any applicable law) a beneficiary or beneficiaries to receive any
compensation or benefit payable under this Agreement following your death,
9
and may change such election by giving the Company written notice thereof.
In the event of your death or a judicial determination of your
incompetence, all references in this Agreement to you shall be deemed,
where appropriate, to refer to your named beneficiary, estate or other
legal representative.
(d) Amendment. This Agreement may not be changed orally but only by a written
agreement executed by you and the Board that expressly references this
Agreement. So long as you live, no person, other than the parties hereto,
shall have any rights under or interest in this Agreement or the subject
matter hereof.
(e) Applicable Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of New York, without regard to the
conflict of law provisions of any state. All disputes shall be arbitrated
or litigated (whichever is applicable) in the Borough of Manhattan, New
York City, New York.
(f) Severability. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if
such invalid or unenforceable provision were omitted (but only to the
extent that such provision cannot be appropriately reformed or modified).
(g) Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other
party, will operate or be construed as a waiver of any subsequent breach
by such other party of any similar or dissimilar provisions and conditions
at the same or any prior or subsequent time. The failure of any party
hereto to take any action by reason of such breach will not deprive such
party of the right to take action at any time while such breach continues.
(h) Successors. This Agreement shall not be terminated by the voluntary or
involuntary dissolution of the Company or by any merger or consolidation
where the Company is not the surviving or resulting corporation, or upon
any transfer or all or substantially all of the assets of the Company. In
the event of any such merger or consolidation or transfer of assets, the
provisions of this Agreement shall be binding and shall inure to your
benefit and the surviving or resulting entity or the entity to which such
assets shall be transferred. The Company's successor (whether such
succession is direct or indirect, by purchase, merger, consolidation or
otherwise, to all or a substantial portion of the business and/or assets
of the Company), assumes and agrees to perform this Agreement in the same
manner and to the same extent as the Company would be required to perform
if no such succession had taken place. As used in this Agreement, the term
"Company" shall mean the Company and any successor to all or a substantial
portion of the Company's business or assets.
(i) Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the
parties at the addresses set forth below (or such other addresses as shall
be specified by
10
the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next
day delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or
otherwise;
provided, however, that in no event shall any such communications be
deemed to be given later than the date they are actually received.
Communications that are to be delivered by the U.S. mail or by overnight
service or two-day delivery service are to be delivered to the following
addresses:
to the Company:
Trenwick Group Ltd.
The LOM Building
00 Xxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
to you:
Xxxxx X. Xxxxxxx, Xx.
00 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
All notices to the Company shall be directed to the attention of the
Chairman of the Compensation Committee of the Board, with a copy to the
Secretary of the Company. Each party, by written notice furnished to the
other party, may modify the applicable delivery address, except that
notice of change of address shall be effective only upon receipt.
(j) Arbitration of All Disputes. Any controversy or claim arising out of or
relating to this Agreement, the breach thereof or the coverage of this
arbitration provision shall be settled by arbitration administered by the
American Arbitration Association in accordance with its Commercial
Arbitration Rules in effect on the date of delivery of demand for
arbitration. The arbitration of such issues, including the determination
of the amount of any damages suffered by either party hereto by reason of
the acts or omissions of the other, shall be to the exclusion of any
court. The decision of the arbitrators shall be final and binding on the
parties and their respective heirs, executors, administrators, successors
and assigns. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction. There shall be three
arbitrators, one to be chosen directly by each party and the third
arbitrator to be selected by the two arbitrators so chosen. The
arbitration shall be conducted in the Borough of Manhattan, New York City,
New York
11
or at such other location as agreed by the parties. All decisions and
awards shall be made by a majority of the arbitrators. By agreeing to
arbitration under this paragraph 5(j), you and the Company understand that
you are each waiving any right to a trial by jury and each party makes
that waiver knowingly and voluntarily with full consideration of the
ramifications of such waiver. Nothing contained herein shall be construed
or interpreted to preclude the Company prior to, or pending the resolution
of, any matter subject to arbitration from seeking injunctive relief in
any court for any breach or threatened breach of any of your obligations
in paragraph 5(a).
(k) Costs of Disputes. The costs of the parties hereto in connection with any
controversy or dispute arising out of or relating to this Agreement (or
the breach thereof), including any out-of-pocket legal fees and expenses,
shall be borne by the parties hereto in the proportions determined by the
arbitrators in accordance with the procedures set forth in paragraph 5(j).
(l) Survival of Agreement. The rights and obligations of the parties to this
Agreement shall survive the termination of your employment with the
Company.
(m) Other Agreements. Except as otherwise specifically provided in this
Agreement, this instrument constitutes the entire agreement between you
and the Company and supersedes all prior agreements and understandings,
written or oral, including, without limitation, the employment agreement
dated as of May 11, 2001 (referred to in this Agreement as the "Employment
Agreement") and any other employment agreements that may have been made by
and between you and the Company or its predecessors or Subsidiaries. As of
your Termination Date, all rights, duties and obligations of both you and
the Company pursuant to the Employment Agreement shall terminate.
(n) Exhibits, Other Documents. Except as otherwise expressly provided in this
Agreement, or except where the context clearly requires otherwise, all
references in this Agreement to "the Agreement" or "this Agreement" shall
be deemed to include references to each of the Exhibits to this Agreement.
To the extent that the terms of this Agreement (including the Exhibits to
this Agreement) provide that your rights or obligations set forth in this
Agreement (including the Exhibits to this Agreement) are to be determined
under, or are to be subject to, the terms of any other plan or other
document, this Agreement (including the Exhibits to this Agreement) shall
be deemed to incorporate by reference such plan or other document.
(o) Counterparts. This Agreement may be executed in more than one counterpart,
but all of which together will constitute one and the same agreement.
If you accept the terms of this Agreement, please indicate your acceptance
by signing and returning a copy of this letter to the undersigned, along with a
signed and notarized copy of Exhibit B (Xxxxxxx Release), and a signed copy of
Exhibit E (Letter of Resignation).
12
Very truly yours,
Trenwick Group Ltd.
By: /s/ X. Xxxxxxx Xxxxxx
---------------------
Its: mwb
---------------------------
Accepted and agreed to this
30th day of January, 2003.
/s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------
Xxxxx X. Xxxxxxx, Xx.
13
EXHIBIT A
LIST OF OFFICE FURNISHINGS
Humidor
Brass Scales
Leather Executive Chair
Work of art entitled "Highland Landscape" by Xxxxxx Xxxxxxxxx
Work of art entitled "Twilight Solitude" by Xxxxxx Xxxxx
14
EXHIBIT B
EMPLOYEE RELEASE
GENERAL RELEASE AND WAIVER
1. This Exhibit B is attached to, is incorporated into, and forms a part
of, the letter agreement (the "Agreement") by and between Trenwick Group Ltd.
(the "Company") and Xxxxx X. Xxxxxxx, Xx. (the "Employee") dated January 28,
2003. Except for a claim based upon a breach of the Agreement, the Employee, on
behalf of himself and the other Employee Releasors, releases and forever
discharges Company and the other Company Releasees from any and all Claims which
the Employee (or the other Employee Releasors may have, to the extent that it is
derived from a Claim which the Employee may have) has or claims as of the date
of the Termination Date, or might hereafter have or claim, against the Company
Releasees based upon or arising out of any matter or thing whatsoever, occurring
or arising on or before the Termination Date, to the extent that the Claim
arises out of or relates to the Employee's employment by the Company and its
Subsidiaries and/or the Employee's termination or resignation therefrom, and
shall include, without limitation, any claim against the Company, a Subsidiary,
in any court of competent jurisdiction or before any state, federal or other
governmental agency, including, for example, the Equal Employment Opportunity
Commission or the Department of Labor, for back pay, severance pay, liquidated
damages, losses or other damages to the Employee or the Employee's property
resulting from any claimed violation of state or federal or other law,
including, for example (but not limited to), claims arising under Title VII of
the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race,
color, sex, national origin or religion), and claims under the Age
Discrimination in Employment Act of 1967 (prohibiting discrimination on account
of age) and claims under any federal, state or local law pertaining to benefits.
2. For purposes of this General Release and Waiver, the terms set forth
below shall have the following meanings:
(a) The term "Subsidiary" shall have the meaning ascribed to it in the
Agreement.
(b) The term "Agreement" shall include the Agreement and any Exhibits thereto,
and including the plans and arrangements under which the Employee is
entitled to benefits in accordance with the Agreement and the Exhibits.
(c) The term "Claims" shall include any and all rights, claims, demands,
debts, dues, sums of money, accounts, attorneys' fees, complaints,
judgments, executions, actions and causes of action of any nature
whatsoever, cognizable at law or equity.
(d) The term "Company Releasees" shall include the Company and any Subsidiary
(including any employee benefit plan or arrangement maintained by the
Company or any Subsidiary), and their officers, directors, trustees,
members, representatives, agents, employees, shareholders, partners,
attorneys, and insurers, and their predecessors and successors.
(e) The term "Termination Date" shall have the meaning ascribed to it in the
Agreement.
15
(f) The term "Employee Releasors" shall include the Employee, and his heirs,
representatives, agents, and insurers.
3. The following provisions are applicable to and made a part of the
Agreement and this General Release and Waiver:
(a) By this General Release and Waiver, the Employee Releasors do not release
or waive any right or claim which they may have under the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act, which arises after the date of execution of this General
Release and Waiver.
(b) In exchange for this General Release and Waiver, the Employee hereby
acknowledges that he has received separate consideration beyond that to
which he is otherwise entitled under the Company's policy or applicable
law.
(c) The Company hereby expressly advises the Employee to consult with an
attorney of his choosing prior to executing the Agreement or this General
Release and Waiver.
(d) The Employee has twenty-one (21) days from the date of presentment to
consider whether or not to execute this General Release and Waiver. In the
event of such execution, the Employee has a further period of seven (7)
days from the date of said execution in which to revoke said execution.
This General Release and Waiver will not become effective until expiration
of such revocation period.
(e) The obligation to make payment of any portion of the benefits under
Section 2 of the Agreement, and the commitments and obligations of all
parties thereunder:
(i) shall not become final and binding prior to the expiration of the
Employee's right to revoke the execution of this General Release and
Waiver in accordance with Section 3(d) hereof; and
(ii) shall not become final and binding if the Employee revokes such
execution.
The Employee hereby acknowledges that he has carefully read and
understands the terms of the Agreement and this General Release and Waiver and
each of his rights as set forth therein.
16
--------------------------------
Xxxxx X. Xxxxxxx, Xx.
Date: ____________________, 2003
State of
------------------------
County of
-----------------------
Subscribed Before Me This
____ Day of _________, 2003.
---------------------------------
Notary Public
17
EXHIBIT C
COMPANY RELEASE
GENERAL RELEASE AND WAIVER
1. This document is attached to, is incorporated into, and forms a part
of, an agreement (the "Agreement") by and between Trenwick Group Ltd. (the
"Company") and Xxxxx X. Xxxxxxx, Xx. (the "Employee") dated January 28, 2003.
2. Except for a claim based upon a breach of the Agreement, the Company,
for and on behalf of itself and the other Company Releasors, releases and
forever discharges the Employee and the other Employee Releasees from any and
all Claims, which the Company may now have or claim, or might hereafter have or
claim, against the Employee (or against the other Employee Releasees, to the
extent that it is derived from a Claim against the Employee) based upon or
arising out of any matter or thing whatsoever, occurring or arising on or before
the date of this General Release and Waiver, to the extent that the Claim arises
out of or relates to the Employee's employment by the Company and its
Subsidiaries (including his service as a director of the Company and its
Subsidiaries), and/or the Employee's termination or resignation therefrom, and
shall include, without limitation, Claims arising out of or related to the
Employment Agreement.
For purposes of this General Release and Waiver, the terms set forth below shall
have the following meanings:
(a) The term "Agreement" shall include the Agreement and the Exhibits thereto,
and including the plans and arrangements under which the Employee is
entitled to benefits in accordance with the Agreement and the Exhibits.
(b) The term "Claims" shall include any and all rights, claims, demands,
debts, dues, sums of money, accounts, attorneys' fees, complaints,
judgments, executions, actions and causes of action of any nature
whatsoever, cognizable at law or equity.
(c) The term "Company Releasors" shall include the Company and its
Subsidiaries (as defined in the Agreement), and their officers, directors,
trustees, members, representatives, agents, employees, shareholders,
partners, attorneys, assigns, and insurers, and their predecessors and
successors.
(d) The term "Employee Releasees" shall include the Employee and his family,
heirs, executors, representatives, agents, insurers, administrators,
successors, and assigns
3. The Agreement (including this General Release and Waiver and all other
Exhibits to the Agreement), and the commitments and obligations of all parties
thereunder:
(a) shall become final and binding immediately following the expiration of the
Employee's right to revoke the execution of the Agreement in accordance
with paragraph 3(d) of Exhibit B of the Agreement;
(b) shall not become final and binding until the expiration of such right to
revoke; and
18
(c) shall not become final and binding if the Employee revokes such execution.
Trenwick Group Ltd.
By:
-----------------------------
Its:
-----------------------------
Date:
-----------------------------
State of
---------------------------
County of
--------------------------
Subscribed Before Me This
____ Day of _________, 2003.
---------------------------------
Notary Public
19
EXHIBIT D
ANNOUNCEMENT
[DATE]
Trenwick Group Ltd. ("Trenwick") announced today that Xxxxx X. Xxxxxxx, Xx. has
retired for health reasons from his positions of officer and director of the
Company, effective immediately. Xxxxxxxx previously announced, on August 27,
2002, that Xx. Xxxxxxx would be taking a temporary leave of absence from his
positions for health reasons. X. Xxxxxxx Xxxxxx will continue to serve as Acting
Chairman and Acting Chief Executive Officer of the Company.
20
EXHIBIT E
LETTER OF RESIGNATION
Board of Directors
Trenwick Group Ltd.
The LOM Building
00 Xxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Dear Sirs:
Effective January 28, 2003, I hereby resign from all positions (including,
without limitation, any position as a member of any board of directors) and
employment with Trenwick Group Ltd. and its subsidiaries.
Very truly yours,
Xxxxx X. Xxxxxxx, Xx.
