RELEASE
Exhibit 10.206
The following Release (the “Agreement”) sets forth the agreement between Liberty Mutual
Insurance Company on behalf of itself and its subsidiaries, parent companies, and affiliates,
including but not limited to Safeco Insurance Company and Safeco Corporation (collectively,
Liberty Mutual), and Xxxxxxx X. Xxxxxx (Employee) concerning Liberty Mutual’s payment of
certain compensation and benefits to Employee pursuant to the Change in Control Severance
Agreement by and between Safeco Corporation and Employee effective March 28, 2007 (as amended
by that certain Amendment to Change in Control Severance Agreement dated May 15, 2009, and that
certain Confirmation of Change in Control Severance Agreement Terms dated as of September 15,
2008, as so amended the “CIC Agreement”).
1.
CIC Payment. Employee acknowledges that the payments referred
to in Section 6.1(A) of the
CIC Agreement are the only payments that are due to the Employee as of the date of Employee’s
execution of this Agreement pursuant to Section 6.1(A) of
the CIC Agreement. The amount that is
due to Employee pursuant to Section 6.1(A) of the CIC Agreement is $5,372,325 (the “CIC Payment),
minus applicable withholdings required by federal, state and local laws.
(a) Liberty Mutual shall not be obligated pursuant to Section 6.1(A) of the CIC Agreement to
pay Employee or provide Employee with any compensation other than the CIC Payment.
(b) Employee agrees that the payments made by Liberty Mutual under this Agreement constitute
adequate consideration for the release of claims set forth in Section 3 below.
2. Conditions Applying to CIC Payment. Employee acknowledges and
agrees that the CIC Payment set forth in Section 1 of this Agreement is, for purposes of any
and all compensation plans, programs or other agreements or arrangements of Liberty Mutual, a
welfare benefit and does not constitute a wage earned by Employee by virtue of Employee’s
employment with Liberty Mutual. None of the payments described in this Agreement shall be
subject to matching, contributions or included as benefits eligible earnings under any Liberty
Mutual benefit plan or policy.
3. Release of Claims. Employee hereby knowingly and voluntarily releases and forever
discharges Liberty Mutual and its respective subsidiaries, parent, affiliates and related
entities, including but not limited to Safeco Insurance Company and Safeco
Corporation (collectively, “Liberty Mutual”) and its or their present and former officers,
directors, employees, agents, successors and assigns, of and from any and all claims, known or
unknown that Employee, (including Employees heirs, executors, administrators, successors, and
assigns) has or may have under Section 6.1(A) of the CIC Agreement as of the date of
Employee’s execution of this Agreement. This includes a release of
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(a) any rights or claims that Employee may have pursuant to the Safeco
Executive Severance Guidelines, other than for the CIC Payment described in Section 1 of
this Agreement;
(b) any rights or claims that Employee may have pursuant to the Safeco Long Term
Incentive Plan, Safeco Leadership Performance Plan, Safeco Performance Incentive
Compensation Plan, Safeco Success Sharing Plan, Safeco Sales Incentive Plan, Surety Plan,
and/or any other compensation, incentive and/or bonus plans in which Employee may claim to
have participated; and
(c) any rights or claims that Employee may have pursuant to the Employee
Retirement Income Security Act of 1974, as amended, but only with respect to the Safeco
Executive Severance Guidelines, Safeco Group Short Term Disability Plan, and Safeco Group
Long Term Disability Plan.
Notwithstanding the foregoing, Employee is not waiving his right to bring claims that cannot be
released as a matter of law. Further, nothing in this Agreement, including the release of claims
set forth in this Section 3, shall be construed to have any effect upon Employee’s receipt of
benefits for which Employee is otherwise eligible or entitled to receive (i) pursuant to the
terms of any Safeco Insurance Company Retirement Plan, Safeco Cash Balance Plan, or Safeco’s
Deferred Compensation Plan for Executives, (ii) any other Liberty Mutual benefit plan, (iii) any
provision of the CIC Agreement other than Section 6.1(A) or (iv) any claim for workers
compensation benefits.
4. No Other Payments Due. Employee affirms that Employee has been paid and/or has received
all compensation and benefits which were due and payable to Employee under Section 6.1 (A) of the
CIC Agreement as of the date of Employee’s execution of this Agreement.
5. Non-admission
of Wrongdoing. Employee agrees that neither this Agreement nor the
furnishing of the consideration for the release set forth in this Agreement shall be deemed or
construed at any time for any purpose as an admission by Liberty Mutual of any liability or
unlawful conduct of any kind.
6. Governing Law and Interpretation. Employee agrees that this Agreement
shall be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to its conflict of laws provisions. Notwithstanding the
foregoing, in the event a court of competent jurisdiction declares that
this Agreement is governed by the law of another state, the Agreement shall remain in full force
and effect. Should any provision of the Agreement be declared illegal or unenforceable by a
court of competent jurisdiction and cannot be modified to be enforceable, excluding the
release of claims language, such provision shall immediately become null and void, leaving
the remainder of this Agreement in full force and effect. If the release of claims language
is found by a court of competent jurisdiction to be unenforceable, Employee agrees that the
remainder of Section 3 shall remain in full force and effect, that Liberty Mutual may
rewrite this Agreement to cure the defect, and that Employee shall execute the rewritten
agreement upon request of Liberty Mutual without any additional monies, benefits and/or
compensation therefor.
7. Entire Agreement. This Agreement sets forth the entire agreement
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between Employee and Liberty Mutual and shall supersede any and all prior agreements or
understandings, express or implied, whether written or oral, between the parties, except that, if
Employee previously entered into any agreement(s) with Liberty Mutual containing provisions
governing confidential information and assignment of inventions, trade secrets, non-competition
or non-solicitation, such provisions shall remain in full force and effect, Employee acknowledges
that Employee has not relied on any representations, promises, or agreements of any kind made to
Employee in connection with Employee’s decision to sign this Agreement which are not reflected in
this Agreement.
8. Amendment. This Agreement may not be amended except by a written agreement signed by both
parties.
9. Right to Revoke. Employee understands that Employee has the right to revoke this
Agreement at any time during the seven (7) calendar day period following the date on which Employee
first signs the Agreement. If Employee wants to revoke, Employee must make a revocation in writing
which states: “I hereby revoke my acceptance of the Release.” This written revocation must be
delivered by hand within the seven-day revocation period, or sent by overnight service or certified
mail with a postmark dated before the end of the seven-day revocation period to: Xxxxxxx Xxxxx,
Vice President and Manager, Benefits and Employee Relations, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000;
otherwise the revocation will not be effective. If Employee revokes this Agreement, Employee will
not be entitled to receive the consideration referenced in
Section 1 unless be thereafter executes
a release substantially in the form hereof.
10. Effective Date. This Agreement shall not become effective or enforceable until the
expiration of the 7-day revocation period described in Section 9
above.
EMPLOYEE UNDERSTANDS THAT EMPLOYEES RIGHT TO RECEIVE THE CIC PAYMENT REFERENCED IN THIS AGREEMENT
IS SUBJECT TO EMPLOYEE’S COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT
EMPLOYEE ALSO UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE WILL BE WAIVING EMPLOYEE’S
RIGHTS UNDER FEDERAL, STATE AND LOCAL LAW TO BRING ANY CLAIMS THAT EMPLOYEE HAS OR MIGHT HAVE
AGAINST LIBERTY MUTUAL UNDER SECTION 6.1(A) OF THE CIC AGREEMENT.
[SEAL]
EMPLOYEE HAS 21 DAYS TO CONSIDER THIS AGREEMENT, LIBERTY
MUTUAL ADVISES EMPLOYEE TO CONSULT WITH AN ATTORNEY (AT EMPLOYEE’S OWN EXPENSE) PRIOR TO
SIGNING THIS AGREEMENT. EMPLOYEE’S SIGNATURE BELOW CONSTITUTES EMPLOYEE’S ACKNOWLEDGEMENT
THAT EMPLOYEE HAS BEEN SO ADVISED, THAT EMPLOYEE HAS READ THE AGREEMENT, THAT EMPLOYEE
FULLY UNDERSTANDS ITS TERMS, AND THAT EMPLOYEE KNOWINGLY AND VOLUNTARILY AGREES TO BE BOUND
BY IT.
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Executed this 6th day of October, 2009.
IN WITNESS WHEREOF, Employee has executed this Release as of the date set forth
below.
| UNDERSTOOD, ACCEPTED AND AGREED |
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| Signed: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name [please print]: | Xxxxxxx X. Xxxxxx | |||
| Date: 10/6/09 | ||||
| Liberty Mutual Insurance Company |
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| By: | ||||
| Xxxxxxx X. Xxxxx | ||||
| Vice President & Manager Employee Relations and Benefits |
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Please mail all pages of the original release, including your initials on all pages and your dated
signature to: Xxxxxxx Xxxxx, Liberty Mutual Group, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
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