TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT ("Transition Services Agreement") is
made and entered into as of the 11th day of June, 1998 by and between Xxxxx X.
Xxxxxxx, residing at Green Xxxxxx Xxxx, Xxxxx 0, Xxx 000X, Xxxxxx, Xxxxx
76227(the "Executive"), and TIG Holdings, Inc., a Delaware corporation, having
its principal executive offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Corporation").
W I T N E S E T H:
WHEREAS, the Executive has been employed by the Corporation at its Irving,
Texas offices as its Executive Vice President and Chief Financial Officer
pursuant to a letter agreement dated June 15, 1993, as supplemented by a letter
dated June 22, 1993 (as so supplemented, the "Letter Agreement"); and
WHEREAS, the Corporation has advised the Executive that it has determined
that it is in the best interests of the Corporation that its chief financial
officer be located at the Corporation's principal executive offices in New York,
New York along with the Corporation's chief executive officer and chief
operating officer, and the Executive has determined that he does not wish to
relocate from Texas to New York and would prefer to resign his positions with
the Corporation and its subsidiaries and assume retirement status;
WHEREAS, the Corporation is willing to accept the Executive's resignation
but has requested, and the Executive has agreed, that the Executive remain with
the Corporation through the end of the year while the Corporation conducts a
search for and completes the transition to a new chief financial officer; and
WHEREAS, the Executive and the Corporation desire to establish the terms
for the Executive's retirement status with the Corporation and to settle fully
and finally all matters between them, including, but not limited to, any issues
that might arise out of the Executive's employment or the Letter Agreement or
the termination of his employment, and accordingly, have agreed that it is in
the best interests of the Corporation and the Executive that they enter into
this Transition Services Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Agreement to Resign; Termination of Employment.
1.1 The Executive hereby resigns, effective as of the close of business on
December 31, 1998 or such earlier date as the Corporation appoints a new chief
financial officer (the earlier of such dates being referred to herein as the
"Resignation Date"), as Executive Vice President and Chief Financial Officer of
the Corporation, from all other officer and employee positions with the
Corporation and its subsidiaries and affiliates and from all directorships that
he holds with subsidiaries and other affiliates of the Corporation. Until the
Resignation Date, the Executive will continue in his current positions with the
Corporation and its subsidiaries and will, consistent with the duties and
responsibilities of a chief financial officer of a public company, assist the
Corporation and its subsidiaries in good faith and to the best of his abilities
as directed by the Chief Executive Officer of the Corporation in order to help
the Corporation achieve its objectives.
1.2 Notwithstanding the foregoing, in the event that the Resignation Date
occurs prior to December 31, 1998, the Executive will, as of the Resignation
Date, become an "inactive" employee of the Corporation and will continue in that
capacity through the close of business on December 31, 1998 (the "Termination
Date"). As a result, the Executive will qualify for contributions made in
respect of 1998 under the Corporation's Employee Stock Ownership Plan and
Diversified Savings and Profit Sharing Plan, including under the "top hat"
supplemental plans established with respect to such plans. In the event that the
Resignation Date occurs prior to the Termination Date, the Executive will
provide such reasonable assistance to the new Chief Financial Officer of the
Corporation in facilitating his or her transition as may be requested from time
to time by the Chief Executive Officer of the Corporation or the new Chief
Financial Officer prior to the Termination Date. During the first thirty (30)
days of such period, the Executive will be entitled to retain his office and
secretarial support. Thereafter, until the Termination Date, the Executive will
be provided with an appropriate office and secretarial support to the extent
that he is required to work out of the Corporation's Irving, Texas offices in
order to carry out his duties pursuant to the third sentence of this paragraph.
In addition, as soon as possible following the Resignation Date, the Corporation
will transfer to the Executive title to the cellular telephone and Libretto
computer currently made available by the Corporation to the Executive, subject
to the Executive arranging for the billing on the cellular telephone to be
transferred to his name and for the issuance of licenses to him to use the
software in connection with the computer.
1.3 Following the Resignation Date and until the Termination Date, the
Corporation will continue to pay the Executive at his current rate of base
salary ($467,500 per annum), and the Executive shall continue to be considered
an employee of the Corporation for purposes of eligibility to participate in and
to receive all benefits under any and all welfare benefit plans, practices,
policies and programs maintained or provided by the Corporation and/or its
subsidiaries, in accordance with their terms, for the benefit of employees of
the Corporation (other than the Corporation's vacation plan, in which the
Executive shall be entitled to participate only through the Resignation Date to
the extent provided in the next sentence). The Executive will cease to accrue
additional vacation days as of and from the Resignation Date through the
Termination Date and will, on the Resignation Date, be entitled to receive a
cash payment for his unused accrued vacation days based upon his $467,500
current rate of base salary and otherwise determined in accordance with the
Corporation's policies.
1.4 Notwithstanding anything to the contrary contained in this Section 1,
the Executive's employment with the Corporation may be terminated by the
Corporation at any time following the date hereof for "cause". For purposes of
this Transition Services Agreement, "cause" means (i) an act or acts of personal
dishonesty taken by the Executive and intended to result in the Executive's
personal enrichment at the expense of the Corporation or any of its
subsidiaries, excluding for this purpose any isolated, insubstantial or
inadvertent action not taken in bad faith which is remedied by the Executive in
a reasonable period of time after receipt of written notice thereof from the
Corporation, (ii) repeated violations by the Executive of his obligations under
this Transition Services Agreement which are demonstrably willful and deliberate
and which are not remedied in a reasonable period of time by the Executive after
receipt of written notice thereof from the Corporation or (iii) the Executive's
conviction of a felony involving moral turpitude. In the event that the
Executive's employment is terminated for "cause", the Executive shall cease to
be an employee of the Corporation and its subsidiaries for all purposes and the
Corporation shall have no further obligations to the Executive under this
Transition Services Agreement (including, without limitation, under the second
sentence of Section 1.2, the first sentence of Section 1.3 and the third
sentence of Section 4), other than (a) to pay his base salary and other benefits
accrued through the date of termination and (b) to make the Cash Payment
pursuant to Section 2.
2. Cash Payments.
2.1 Upon the execution of this Transition Services Agreement, the Letter
Agreement shall automatically terminate, and the Executive shall thereupon cease
to be entitled to receive any payments or benefits payable under the Letter
Agreement or under any other plan, arrangement or practice maintained by the
Corporation or any of its subsidiaries as a result of his termination of
employment. In lieu of any other cash payments or benefits to which the
Executive may have been entitled under the Letter Agreement or otherwise as a
result of the termination of his employment, the Corporation shall, following
the Termination Date and regardless of whether the Executive's employment has
previously been terminated for "cause", make a cash payment to the Executive in
the amount of $1,076,250 (the "Cash Payment") payable in two installments as
follows: (a) the first installment in the amount of $315,000 (the "First
Installment") shall be payable on the eighth day (or if such day is not a
business day, on the next succeeding business day) following the date (which
shall not be earlier than December 31, 1998) on which the Executive signs a
general release in the form of Exhibit A hereto, provided that the Executive
shall not have revoked such release during such interim period and the release
shall remain in full force and effect on the date of payment, and (b) the second
installment in an amount equal to the difference between the First Installment
and the Cash Payment (the "Second Installment") shall be payable on April 1,
1999, together with interest on the Second Installment, payable at the rate of
8.5% per annum, from and including the date of payment of the First Installment
to but excluding April 1, 1999.
2.2 Simultaneous with the payment of the First Installment, the Corporation
shall make a cash payment of $10,000 to the Executive in full satisfaction of
expenses incurred and to be incurred by the Executive in connection with the
negotiation of this Transition Services Agreement, the transition of his
relationship with the Corporation and other miscellaneous expenses.
3 Retirement Status. The Compensation Committee of the Board of Directors
of the Corporation (the "Compensation Committee") has approved a Supplemental
Executive Retirement Plan, a copy of which is attached hereto as Exhibit B (the
"Retirement Plan"), providing for the Executive's status as an individual in
"Retirement" and the entitlements arising as a result of such status following
his termination of employment under the Corporation's 1993 Long-Term Incentive
Plan and the Corporation's 1996 Long-Term Incentive Plan. By signing this
Transition Services Agreement, the Executive agrees to be bound by the terms of
the Retirement Plan in all respects.
4. Employee Benefits. Following the Termination Date (or, if earlier, the
date that the Executive's employment is terminated for "cause"), the Executive
shall not be treated as or deemed to be an employee for purposes of
participation or eligibility under any plan, program or arrangement maintained
or sponsored by the Corporation or any of its subsidiaries or affiliates, other
than as specifically provided in the second sentence of Section 1.2 and except
as provided in the next sentence. If (x) in the sole, good faith judgment of the
Chief Executive Officer of the Corporation the Executive has performed his
obligations under this Transition Services Agreement to the best of his
abilities, (y) the Corporation has achieved its targeted performance goals for
1998 and (z) the Executive has executed a general release when and as
contemplated by Section 2, the Chief Executive Officer will recommend to the
Compensation Committee that the Executive receive a cash bonus in respect of
1998 services equal to the cash bonus paid to the Executive in respect of 1997
services (determined by adding the amount of the Executive's cash bonus to the
value of his restricted stock grants valued as of the date of grant), pro rated
based on the portion of 1998 that the Executive is not deemed an "inactive"
employee in accordance with this Transition Services Agreement. The Compensation
Committee will take into account the Chief Executive Officer's recommendation in
considering whether the Executive should receive a cash bonus in recognition of
the Executive's performance, contribution and cooperation during 1998 and, if
so, the amount of such bonus. The determination regarding the Executive's cash
bonus for 1998 will be made at the time that the Compensation Committee
generally considers bonus awards for employees in respect of 1998 services. In
addition, if the Executive elects health, medical and dental welfare benefit
continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended ("COBRA"), the Corporation will pay the COBRA premium amounts
required to maintain the same level and type of coverage the Executive (and his
dependents, if applicable) enjoys on the date of this Transition Services
Agreement for the period commencing January 1, 1999 and terminating on June 30,
2000. The payment referred to in the preceding sentence will be grossed-up by
the Corporation to take account of income taxes payable by the Executive in
respect of such payment. The Executive acknowledges that, for COBRA purposes
only, a COBRA "qualifying event" will occur on December 31, 1998 and that the
Executive's COBRA coverage period will commence on January 1, 1999.
5. Confidential Information. During the Executive's employment with the
Corporation and for a period of four (4) years thereafter, the Executive shall
hold in confidence and shall not, without the prior written consent of the
Corporation, communicate, use or divulge to any person or entity any secret,
confidential or proprietary information, knowledge or data (collectively,
"Confidential Information") relating to the Corporation (and/or any of its
subsidiaries or affiliates) which has been obtained by the Executive during or
by reason of his employment with the Corporation and/or any of its subsidiaries
or affiliates. Notwithstanding the foregoing, for purposes hereof, the term
"Confidential Information" shall not include any information which (i) is or
becomes publicly available without breach of this Transition Services Agreement
or (ii) the Executive rightfully received from a third party without obligation
of confidence.
6. Non-solicitation. For a period of four (4) years following the
Termination Date (or, if earlier, the date that the Executive's employment is
terminated for "cause"), the Executive shall not knowingly, directly or
indirectly, (a) solicit or induce customers, clients, suppliers, agents or other
persons under contract or otherwise associated or doing business with the
Corporation or any subsidiary or affiliate of the Corporation (a "Business
Associate"), or any of such persons or entities with whom the Corporation or any
of its subsidiaries or affiliates is in active negotiations to become a Business
Associate, to terminate, reduce or alter any such association or business with
or from the Corporation or any subsidiary or affiliate of the Corporation,
and/or (b) solicit or induce any person then in the employment of the
Corporation or any subsidiary or affiliate of the Corporation (other than the
Executive's current senior executive secretary) or any consultant to the
Corporation or any subsidiary or affiliate of the Corporation to (i) terminate
such employment or consulting arrangement, and/or (ii) accept employment, or
enter into any consulting arrangement with anyone other than the Corporation or
any subsidiary or affiliate of the Corporation.
7. Non-Disparagement; Publicity. Neither the Executive nor the Corporation
will hereafter make any oral or written statement concerning the other to any
person, company or agency which is not made in good faith and is intended to
disparage or damage the personal or professional reputation or interfere with
business opportunities of the Executive, on the one hand, or the Corporation
and/or any of its subsidiaries or affiliates (and their respective directors and
officers), on the other.
(b) The Corporation will give the Executive a reasonable opportunity
to review any press release or public filing with the Securities and
Exchange Commission which announces the Executive's termination of
employment with the Corporation, and the Corporation will consider in good
faith any reasonable comments provided by the Executive on a timely basis
with respect to such press release or filing.
8. Releases.
8.1 In consideration of the payments and benefits to the Executive under
this Transition Services Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the Executive, the Executive knowingly, voluntarily and unconditionally hereby
forever waives, releases and discharges, and covenants never to xxx on, any and
all claims, liabilities, causes of actions, judgments, orders, assessments,
penalties, fines, expenses and costs (including without limitation attorneys'
fees) and/or suits of any kind arising out of any actions, events or
circumstances occurring before the date of this Transition Services Agreement
("Claims") which the Executive has, ever had or may have, or which the
Executive's heirs, executors, administrators and assigns, or any of them
hereafter can, shall or may have, against the Corporation and/or any of its
subsidiaries, shareholders, officers, directors, agents, affiliates, employee
benefit plan fiduciaries, trustees and administrators, and employees, past or
present, and their respective heirs, successors and assigns (collectively, the
"Releasees"), including, without limitation, any Claims arising in whole or in
part from the Executive's employment with the Corporation and/or any of its
subsidiaries or affiliates or the Letter Agreement or the termination of the
Executive's employment with the Corporation or the manner of such termination;
provided, however, that this Section 8 shall not apply to any of the obligations
of the Corporation specifically provided for in or pursuant to this Transition
Services Agreement. This Transition Services Agreement is intended as a full and
final settlement and compromise of each, every and all Claims of every kind and
nature, whether known or unknown, which have been or could be asserted against
any of the Releasees, including, without limitation:
(1) any Claims arising out of any employment agreement or
other contract (including, without limitation, the
Letter Agreement), side-letter, resolution, promise or
understanding of any kind, whether written or oral or
express or implied; and
(2) any Claims arising under any federal, state, or local
civil rights, human rights, anti-discrimination, labor,
employment, contract or tort law, rule, regulation,
order or decision, including, without limitation, the
Family and Medical Leave Act, the Employee Retirement
Income Security Act of 1974, the Americans with
Disabilities Act of 1990, 42 U.S.C. S. 12101 et seq.,
and Title VII of the Civil Rights Act of 1964, 42
U.S.C. S. 2000 et seq., and as each of these laws have
been or will be amended.
8.2 In consideration of the obligations of the Executive under this
Transition Services Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Corporation, the
Corporation knowingly, voluntarily and unconditionally hereby forever waives,
releases and discharges, and covenants never to xxx on, any and all Claims
arising out of any actions, events or circumstances occurring before the date of
this Transition Services Agreement which the Corporation has, ever had or may
have, including, without limitation, any Claims arising in whole or in part from
the Executive's employment with the Corporation and/or any of its subsidiaries
or affiliates or the Letter Agreement or the termination of the Executive's
employment with the Corporation or the manner of said termination; provided,
however, that this Section 8.2 shall not apply to any of the obligations of the
Executive specifically provided for in or pursuant to this Transition Services
Agreement. This Transition Services Agreement is intended as a full and final
settlement and compromise of each, every and all Claims of every kind and
nature, whether known or unknown, which have been or could be asserted against
the Executive and his respective heirs, successors and assigns.
8.3 Notwithstanding anything to the contrary in Section 8.2, but subject to
the other provisions of this Transition Services Agreement, the Executive does
not release any claim he may have under any employee benefit plan, program or
arrangement (including, without limitation, any qualified plans and related
restoration plans) in which he was a participant during his employment with the
Corporation or any of its subsidiaries for the payment of a benefit thereunder
to which he would be entitled upon his termination of employment in accordance
with the terms of any such plan, program or arrangement.
8.4 The Executive acknowledges that the Executive has carefully read and
fully understands all of the terms of this Transition Services Agreement,
including without limitation the releases contained herein. The Executive
further acknowledges that the Executive has entered into this Transition
Services Agreement willingly, freely, without duress or coercion and after
having had explained to him by counsel of his choice, his rights under all laws
referred to in this Transition Services Agreement and the terms and consequences
of this Transition Services Agreement. The Executive also acknowledges that he
has been given the opportunity to take at least twenty-one (21) days to consider
and accept or reject this Transition Services Agreement and has chosen to
execute, deliver and agree to this Transition Services Agreement as of the date
of this Transition Services Agreement. The Executive agrees that the Executive
has been given a fair, reasonable and sufficient time to fully consider all of
the terms of this Transition Services Agreement. The Executive may revoke the
portion of this Transition Services Agreement that relates to the release of any
claim the Executive may have under the Age Discrimination in Employment Act of
1967 (including, without limitation, the Older Workers Benefit Protection Act)
at any time within seven (7) days after the date of execution of this Transition
Services Agreement by notifying the Corporation of such revocation in writing.
Notwithstanding the foregoing, no such revocation shall affect or alter any
other term or provision of this Transition Services Agreement or any other
release granted hereunder, all of which shall survive any such revocation in
accordance with their terms.
8.5 Except as specifically provided for in or pursuant to this Transition
Services Agreement, the Executive shall not be entitled to any compensation,
remuneration or other payments from the Corporation and/or the Corporation's
subsidiaries or affiliates and the Corporation (and its subsidiaries and
affiliates) shall have no further obligations to the Executive, including
without limitation under any contract, plan, agreement, understanding or
resolution. Without limiting the foregoing, except as expressly provided for in
or pursuant to this Transition Services Agreement, the Executive shall have no
further rights and shall be entitled to no further benefits under the Letter
Agreement, which the Executive agrees is superseded in all respects by this
Transition Services Agreement and shall be of no further force or effect on and
as of the date hereof.
9. Scope of Agreement; Enforceability. This Transition Services Agreement
(together with the exhibits hereto) constitutes the entire understanding and
agreement between the Corporation and the Executive with regard to all matters
herein and supersedes all prior oral and written agreements and understandings
of the parties with respect to such matters, whether express or implied,
including, to the extent provided in Section 8.5 of this Transition Services
Agreement, the Letter Agreement. Notwithstanding the foregoing, this Transition
Services Agreement shall not supersede the stock option and restricted share
award agreements previously entered into between the Corporation and the
Executive on the terms of the Corporation's 1993 Long-Term Incentive Plan and
1996 Long-Term Incentive Plan, which shall survive the execution and delivery of
this Transition Services Agreement and the General Release and the termination
of the Executive's employment with the Corporation and shall remain binding upon
the Corporation and the Executive in accordance with their respective terms.
This Transition Services Agreement shall inure to the benefit of and be
enforceable by the Executive's heirs, beneficiaries and/or legal
representatives. This Transition Services Agreement shall inure to the benefit
of and be binding upon the Corporation and its respective successors and
assigns. If any term or provision of this Transition Services Agreement, or the
application thereof to any person or circumstances, will to any extent be
invalid or unenforceable, the remainder of this Transition Services Agreement,
or the application of such terms to persons or circumstances other than those as
to which it is invalid or unenforceable, will not be affected thereby, and each
term of this Transition Services Agreement will be valid and enforceable to the
fullest extent permitted by law.
10. Remedies. The Executive acknowledges and agrees that the Corporation
will have no adequate remedy at law for a breach of any of the provisions of
Sections 5, 6 and/or 7 of this Transition Services Agreement, and would be
irreparably harmed, if the Executive breaches any of the provisions of
Sections 5, 6 and/or 7 of this Transition Services Agreement. The Executive
further agrees that the Corporation shall be entitled to equitable and/or
injunctive relief to prevent any breach or threatened breach of Sections 5, 6
and/or 7 of this Transition Services Agreement, and to specific performance of
each of the terms of such Sections in addition to any other legal or equitable
remedies that the Corporation may have. The Executive also agrees that he shall
not, in any equity proceeding relating to the enforcement of the terms of
Sections 5, 6 and/or 7 of this Transition Services Agreement, raise the defense
that the Corporation has an adequate remedy at law. Anything herein to the
contrary notwithstanding, the Corporation specifically hereby acknowledges and
agrees that its remedies hereunder, in the event of a breach or an alleged
breach of this Transition Services Agreement by the Executive, shall not include
the right of offset against amounts otherwise due to the Executive hereunder.
11. Amendments/Waiver. This Transition Services Agreement may not be
amended, waived, or modified otherwise than by a written agreement executed by
the parties to this Transition Services Agreement or their respective successors
and legal representatives. No waiver by any party to this Transition Services
Agreement of any breach of any term, provision or condition of this Transition
Services Agreement by the other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, or any prior or subsequent
time.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed effective upon receipt if by hand-delivery to the
other party, receipt if by facsimile transmission, the next business day if by
overnight courier, or the third business day after mailing if by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxx X. Xxxxxxx
Green Valley Farm
Route 2
Box 304X
Xxxxxx, Xxxxx 00000
If to the Corporation: TIG Holdings, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
with a copy to: Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
or to such other address as either party shall have furnished to the other
in writing in accordance herewith.
12. Governing Law; Binding Effect. This Transition Services Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York without reference to its choice of law provisions, and shall
be binding upon the parties and their respective heirs, executors, successors
and assigns.
14. Counterparts. This Transition Services Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but which
together shall constitute one and the same instrument.
15. Withholding. The Corporation may withhold from any amounts or benefits
payable under this Transition Services Agreement such federal, state and local
income and payroll taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
IN WITNESS WHEREOF, the Corporation and the Executive have caused this
Transition Services Agreement to be executed on and as of the date first above
written.
TIG HOLDINGS, INC.
By: /s/Xxx X. Xxxxxxxxxxxx
Name: Xxx X. Xxxxxxxxxxxx
Title: Chairman and
Chief Executive Officer
/s/Xxxxx X. Xxxxxxx
Executive
NY1:#3167578v7
EXHIBIT A
GENERAL RELEASE
THIS GENERAL RELEASE (this "General Release") is made and entered into as
of the ____ day of __________, 199_ by and between Xxxxx X. Xxxxxxx, residing at
Green Valley Farm, Route 2, Box 304X, Xxxxxx, Xxxxx 00000 (the "Executive"), and
TIG Holdings, Inc., a Delaware corporation, having its principal executive
offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation").
W I T N E S E T H:
WHEREAS, the Executive and the Corporation have entered into a Transition
Services Agreement dated as of June 11, 1998 (the "Transition Services
Agreement") providing for the terms upon which the Executive has resigned and
retired from his positions with the Corporation and its subsidiaries and
affiliates; and
WHEREAS, the Transition Services Agreement contemplates that, on the
"Termination Date" under the Transition Services Agreement, the Executive and
the Corporation will enter into this General Release;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
8. In consideration of the payments and benefits to the Executive under the
Transition Services Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the Executive,
the Executive knowingly, voluntarily and unconditionally hereby forever waives,
releases and discharges, and covenants never to xxx on, any and all claims,
liabilities, causes of actions, judgments, orders, assessments, penalties,
fines, expenses and costs (including without limitation attorneys' fees) and/or
suits of any kind arising out of any actions, events or circumstances occurring
before the date of this General Release ("Claims") which the Executive has, ever
had or may have, or which the Executive's heirs, executors, administrators and
assigns, or any of them hereafter can, shall or may have, against the
Corporation and/or any of its subsidiaries, shareholders, officers, directors,
agents, affiliates, employee benefit plan fiduciaries, trustees and
administrators, and employees, past or present, and their respective heirs,
successors and assigns (collectively, the "Releasees"), including, without
limitation, any Claims arising in whole or in part from the Executive's
employment with the Corporation and/or any of its subsidiaries or affiliates,
either before or after the execution and delivery of the Transition Services
Agreement, or the letter agreement dated June 15, 1993 between the Executive and
the Corporation, as supplemented by a letter dated June 22, 1993 (as so
supplemented, the "Letter Agreement"), or the termination of the Executive's
employment with the Corporation or the manner of such termination; provided,
however, that this paragraph shall not apply to any of the obligations of the
Corporation specifically provided for in or pursuant to the Transition Services
Agreement. This General Release and the Transition Services Agreement are
intended as a full and final settlement and compromise of each, every and all
Claims of every kind and nature, whether known or unknown, which have been or
could be asserted against any of the Releasees, including, without limitation:
(1) any Claims arising out of any employment agreement or other contract
(including, without limitation, the Letter Agreement), side-letter,
resolution, promise or understanding of any kind, whether written or
oral or express or implied; and
(2) any Claims arising under any federal, state, or local civil rights,
human rights, anti-discrimination, labor, employment, contract or tort
law, rule, regulation, order or decision, including, without
limitation, the Family and Medical Leave Act, the Employee Retirement
Income Security Act of 1974, the Americans with Disabilities Act of
1990, 42 U.S.C. S. 12101 et seq., and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. S. 2000 et seq., and as each of these laws have
been or will be amended.
2. In consideration of the obligations of the Executive under the
Transition Services Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Corporation, the
Corporation knowingly, voluntarily and unconditionally hereby forever waives,
releases and discharges, and covenants never to xxx on, any and all Claims
arising out of any actions, events or circumstances occurring before the date of
this General Release which the Corporation has, ever had or may have, including,
without limitation, any Claims arising in whole or in part from the Executive's
employment with the Corporation and/or any of its subsidiaries or affiliates,
either before or after the execution and delivery of the Transition Services
Agreement, or the Letter Agreement or the termination of the Executive's
employment with the Corporation or the manner of said termination; provided,
however, that this paragraph shall not apply to any of the obligations of the
Executive specifically provided for in or pursuant to the Transition Services
Agreement. This General Release and the Transition Services Agreement are
intended as a full and final settlement and compromise of each, every and all
Claims of every kind and nature, whether known or unknown, which have been or
could be asserted against the Executive and his respective heirs, successors and
assigns.
3. Notwithstanding anything to the contrary in Section 8.2 of the
Transition Services Agreement or in this General Release, but subject to the
other provisions of the Transition Services Agreement and the Retirement Plan
(as defined in the Transition Services Agreement), the Executive does not
release any claim he may have under any employee benefit plan, program or
arrangement (including, without limitation, any qualified plans and related
restoration plans) in which he was a participant during his employment with the
Corporation or any of its subsidiaries for the payment of a benefit thereunder
to which he would be entitled upon his termination of employment in accordance
with the terms of any such plan, program or arrangement.
4. The Executive acknowledges that the Executive has carefully read and
fully understands all of the terms of this General Release and the Transition
Services Agreement, including without limitation the releases contained herein
and therein. The Executive further acknowledges that the Executive has entered
into this General Release and the Transition Services Agreement willingly,
freely, without duress or coercion and after having had explained to him by
counsel of his choice, his rights under all laws referred to in this General
Release and the Transition Services Agreement and the terms and consequences of
this General Release and the Transition Services Agreement. The Executive also
acknowledges that he has been given the opportunity to take at least twenty-one
(21) days to consider and accept or reject this General Release and has chosen
to execute, deliver and agree to this General Release as of the date of this
General Release. The Executive agrees that the Executive has been given a fair,
reasonable and sufficient time to fully consider all of the terms of the
Transition Services Agreement. The Executive may revoke the portion of this
General Release that relates to any claim the Executive may have under the Age
Discrimination in Employment Act of 1967 (including, without limitation, the
Older Workers Benefit Protection Act) at any time within seven (7) days after
the date of execution of this General Release by notifying the Corporation of
such revocation in writing. The Executive agrees that, in the event of any such
revocation, the Corporation shall not be obligated to make the cash payment to
the Executive contemplated by Section 2 of the Transition Services Agreement or
to pay any cash bonus pursuant to Section 4 of the Transition Services
Agreement. Notwithstanding the foregoing, no such revocation shall affect or
alter any other term or provision of the Transition Services Agreement or any
other release granted under this General Release, all of which shall survive any
such revocation in accordance with their terms.
5. This General Release shall be governed by and construed and enforced in
accordance with the laws of the State of New York without reference to its
choice of law provisions, and shall be binding upon the parties and their
respective heirs, executors, successors and assigns. If any provision of this
General Release is held invalid or unenforceable for any reason, the remaining
provisions shall not be affected thereby and shall be construed as if the
invalid or unenforceable provision had not been included.
6. This General Release may be executed in counterparts, each of which
shall be deemed to be an original, but which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Corporation and the Executive have caused this
General Release to be executed on and as of the date first written above.
TIG HOLDINGS, INC.
By:__________________________
Name:
Title:
_____________________________
Executive
EXHIBIT B
TIG HOLDINGS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR XXXXX X. XXXXXXX
I. Introduction
TIG Holdings, Inc. (the "Company") hereby establishes the TIG Holdings,
Inc. Supplemental Executive Retirement Plan for Xxxxx X. Xxxxxxx (the "Plan") to
provide supplemental benefits to Xxxxx X. Xxxxxxx ("Participant").
II. Participation
Participant shall be eligible to retire from the Company and all related
and affiliated entities (collectively, the "Employer") effective as of the close
of business on December 31, 1998, provided that:
a) Participant executes a Transition Services Agreement in a form and
containing such terms and conditions deemed appropriate by the Company's
General Counsel; and
b) Participant remains employed by the Employer through the close of
business on December 31, 1998 under the terms of the Transition Services
Agreement and Participant's employment thereunder is not terminated for
"cause" as defined in such Agreement; and
c) Participant resigns and retires from Employer on and effective as
of the close of business on December 31, 1998; and
d) Concurrent with his retirement, Participant executes and timely
delivers to the Company a General Release in a form and containing such
terms and conditions deemed appropriate by the Company's General Counsel.
III. Benefits
Participant shall be entitled to the following benefits hereunder upon his
retirement and compliance with all terms and conditions specified above:
Participant shall be deemed to have satisfied the definition of
"Retirement" contained in his stock option agreements and restricted shares
award agreements (as amended by resolution of the Compensation Committee of the
Board of Directors of the Company on February 21, 1996 and May 2, 1996,
respectively) under the TIG Holdings, Inc. 1993 Long-Term Incentive Plan, and
contained in Section 2.21 of the TIG Holdings, Inc. 1996 Long-Term Incentive
Plan ("1996 LTIP"), regardless of his actual age at time of retirement.
Nothing herein shall entitle Participant to retiree medical coverage under
the TIG Insurance Company Retiree HealthCare Plan. Medical coverage, if any,
shall apply to Participant only as set forth in the Transition Services
Agreement or as otherwise agreed in a writing signed by the Participant and the
Company or its subsidiaries.
IV. Miscellaneous
The Plan shall be binding upon and shall inure to the benefit of the
Employer, its successors, purchasers, and assigns, and Participant and his
heirs, administrators, successors and assigns.
ATTEST TIG HOLDINGS, INC.
________________________ By:________________________
Secretary Title:_____________________
