Exhibit 10.28
EMPLOYMENT TERMINATION AGREEMENT
EMPLOYMENT TERMINATION AGREEMENT, dated as of December 12, 2001 (this
"Agreement"), between Trenwick Group Ltd., a Bermuda company (the "Company"),
and Xxxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, Chartwell Re Corporation and the Executive entered into an Employment
Agreement, dated March 6, 1992, which was amended from time to time by the
parties thereto (as so amended, the "Employment Agreement"); and
WHEREAS, at the time of the merger of Chartwell Re Corporation with and into
Trenwick Group Inc., Trenwick Group Inc. agreed to assume the Employment
Agreement and to make certain amendments to the Employment Agreement; and
WHEREAS, at the time of the business combination among Trenwick Group Inc.,
LaSalle Re Holdings Limited, LaSalle Re Limited and the Company, the Company
assumed the Employment Agreement; and
WHEREAS, on November 3, 1999, the Executive entered into an Agreement with
Trenwick Group Inc., setting forth certain rights of the Executive in the event
of a change in control of Trenwick Group Inc.; and
WHEREAS, on September 26, 2000, Trenwick Group Inc. and the Executive amended
and restated such Agreement (as amended and restated, the "Change in Control
Agreement"); and
WHEREAS, at the time of the business combination among Trenwick Group Inc.,
LaSalle Re Holdings Limited, LaSalle Re Limited and the Company, the Company
assumed the Change in Control Agreement; and
WHEREAS, the Executive has delivered a Notice of Termination of his employment
with the Company pursuant to Section 6(d)(iii) of the Employment Agreement.
NOW, THEREFORE, the Company and the Executive hereby agree upon the terms of the
cessation of the Executive's employment with the Company.
1. Termination Date.
The effective date of the Executive's cessation of employment with the
Company and separation from all positions with the Company and its
Affiliates (as defined in Section 12)) is December 31, 2001 (the
"Termination Date").
2. Payments and Benefits.
The Executive shall be entitled to compensation and other payments and
benefits in accordance with Exhibit 1, which is attached to, and forms a
part of this Agreement.
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3. No Mitigation or Offset.
The Executive has no obligation to seek or accept employment (or otherwise
seek or accept offers to provide services to any person or entity), and any
compensation earned by or provided to the Executive from any person or
entity other than the Company for the performance of such employment or
other services (regardless of whether such compensation is provided to the
Executive in cash or in any other form) shall not reduce or otherwise
affect the amount due to the Executive from the Company in accordance with
this Agreement.
4. Public Support and Assistance.
The Executive agrees that he will endorse strategies of the Company and/or
any of its Affiliates and will not disclose or cause to be disclosed any
negative, adverse or derogatory comments or information of a substantial
nature about the Company or its management, or about any product or service
provided by the Company, or about the Company's prospects for the future
(including any such comments or information with respect to Affiliates of
the Company). For a period of three years after the Termination Date, the
Company and/or its Affiliates may seek the assistance, cooperation or
testimony of the Executive in connection with any investigation, litigation
or proceeding arising out of matters within the knowledge of the Executive
and related to his position as an officer, director or employee of the
Company or any Affiliates, and in any such instance, the Executive shall
provide such assistance, cooperation or testimony and the Company shall pay
the Executive's reasonable costs and expenses in connection therewith. In
addition, if such assistance, cooperation or testimony requires more than a
nominal commitment of the Executive's time, the Company will compensate him
for such time at a per diem rate derived from his base salary from the
Company at the Termination Date.
5. Nondisclosure of Confidential Information.
The Executive shall keep secret and confidential and shall not disclose to
any third party in any fashion or for any purpose whatsoever, any
information regarding the Company or its Affiliates which is (i) not
available to the general public, and/or (ii) not generally known outside
the Company or any such Affiliate to which he has or will have had access
at any time during the course of his employment by the Company and its
Affiliates, including, without limitation, any information relating to: the
Company's business or operations; its plans, strategies, prospects or
objectives; its products, technology, processes or specifications; its
research and development operations or plans; its customers and customer
lists; its manufacturing, distribution, sales, service, support and
marketing practices and operations; its financial condition and results of
operations; its operational strengths and weaknesses; and, its personnel
and compensation policies and procedures (including any such information
with respect to Affiliates of the Company). Notwithstanding the foregoing
provisions of this Section 5, the Executive may disclose any information
regarding the Company or its Affiliates which, in the opinion of the
Executive's counsel, the Executive is legally compelled to disclose.
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6. Non-Disclosure.
(a) The Executive acknowledges that the benefits provided by the Company
under this Agreement are not generally available to other employees of
the Company, and the Executive agrees that, except as may be required
by the lawful order of a court or agency of competent jurisdiction or
as may be otherwise required by law, the Executive will keep the terms
of this Agreement secret and confidential indefinitely.
Notwithstanding the foregoing provisions of this Section 6, the
Executive may disclose the contents of this Agreement to the
Executive's attorneys, accountants and financial advisors, the
Executive's immediate family, any prospective employer in connection
with its decision to hire the Executive, and any prospective lender in
connection with its decision to make a loan to the Executive, provided
that the Executive takes steps that are reasonably calculated to
assure that such persons do not further disclose the terms of this
Agreement. Nothing in this Agreement shall preclude the Executive from
fully discussing with any prospective employer, in connection with its
decision to hire the Executive, the conditions and reasons surrounding
the Executive's separation from the Company. The provisions of this
Subsection (a) shall be waived if the Company publicly discloses the
contents of this Agreement in accordance with Subsection (b) next
below.
(b) The Company agrees that it will keep the terms of this Agreement
secret and confidential indefinitely, except to the extent that the
Company determines that disclosure is required by reason of applicable
securities laws or other legal requirements, and except as otherwise
provided in this Agreement.
7. Transition.
(a) The Executive and the Company will cooperate with each other in any
statements about the Executive's cessation of employment with the
Company and about the Executive's cessation as an officer or director
of any of the Company's Affiliates.
(b) The Executive is required to execute the resignation letters set forth
in Exhibit 2 of this Agreement on or before the Termination Date.
(c) The Executive is required to execute the releases set forth in Exhibit
3 of this Agreement on or before the Termination Date.
(d) On or before the Termination Date, the Executive agrees to remove his
personal effects from his office at the Company or any dwelling rented
by the Company on his behalf (or the Company will remove such personal
effects and ship them to you in accordance with Section 1-4 of Exhibit
1 of this Agreement), to vacate such office and dwelling, to return to
the Company any keys, credit cards, passes, confidential documents or
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material, or other property belonging to the Company or any of the
Affiliates (other than as set forth in Section 1-5 of Exhibit 1 of
this Agreement), and to return all writings, files, records,
correspondence, notebooks, notes and other documents and things
(including any copies thereof) containing any trade secrets relating
to the Company or any of the Affiliates.
(e) The Company and the Executive shall enter into an agreement mutually
satisfactory to each party providing for appropriate reconciliation on
a tax equalization basis of tax payments made and to be made by the
Company and the Executive to the taxing authorities of the United
States, the State of Connecticut, the State of New York and the United
Kingdom in connection with the Executive's employment in the United
Kingdom during portions of 1998 and 1999.
(f) The Executive shall be entitled to continue to utilize the Executive's
current office voice mail, mobile phone and electronic mail phone
numbers, addresses and accounts until the Termination Date and the
Company shall reimburse the Executive for all reasonable charges
related thereto incurred by the Executive on or prior to the
Termination Date.
8. Indemnification.
(a) If the Executive incurs liability by reason of actions taken by the
Executive on behalf of the Company or any Affiliate while the
Executive was employed by the Company, or by reason of actions taken
by the Executive as required under Section 4 of this Agreement, the
Executive shall be eligible for indemnification from the Company to
the same extent as other current or former directors or officers of
the Company.
(b) The Executive shall be entitled to coverage under the directors and
officers liability insurance coverage maintained by the Company or its
Affiliates (as in effect from time to time) to the same extent as
other current or former officers and directors of the Company;
provided, however, that nothing in this Section 8 shall be construed
to require the Company or any Affiliate to continue to maintain any
such directors and officers liability insurance coverage.
(c) To the extent that expenses (including attorneys' fees) incurred by
the Executive in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be subject to
indemnification by the Company and such expenses are not paid
currently by insurance, the Company shall pay all such expenses
(including attorneys' fees) in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by the
Executive to repay such amount if it shall ultimately be determined
that the Executive is not entitled to be
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indemnified by the Company and not entitled to insurance coverage for
such expenses.
9. Excess Parachute Payment
Notwithstanding any other provision of this Agreement or of any other
agreement, understanding or compensation plan, the Executive shall not be
entitled to receive any payment which, taking into account all payments,
rights and benefits, would be deemed to be an "excess parachute payment"
under Section 280G of the Internal Revenue Code of 1986, as amended, and
the amount of each payment made under this Agreement shall be reduced to
the extent necessary to ensure that the Executive receives no such "excess
parachute payment;" provided that no such reduction shall occur to the
extent that the Executive shall have elected to defer receipt of payments
beyond the dates such payments were otherwise to be made to the Executive,
such deferral shall have resulted in the present value of such payment not
constituting an "excess parachute payment," such deferral shall otherwise
comply with Section 280G of the Internal Revenue Code of 1986, as amended,
and such deferral shall be reasonably acceptable to the Company. If, at any
future date following the making of a payment hereunder, it shall have been
determined by the IRS that such payment was in excess of the limits set
forth in Section 280G, and such excess shall not have been caused by a
voluntary action of the Executive not required by this Agreement, then the
Executive shall be entitled to receive from the Company, and the Company
shall pay to Executive promptly upon notification to the Company of such
determination, an excise tax adjustment payment of an amount such that
after payment of all applicable U.S. federal, state and local taxes
(computed at the maximum marginal rates and including interest penalties
and any cost of contest or defense and including any applicable excise tax)
imposed upon the excise tax adjustment payment, the Executive retains from
the excise tax adjustment payment an amount equal to the excise tax imposed
upon the payments and benefits.
10. Non-Alienation.
The Executive's interests under this Agreement are not subject to the
claims of the Executive's creditors, and may not otherwise be voluntarily
or involuntarily assigned, alienated or encumbered. The Executive's
obligations under this Agreement may not be assigned.
11. Amendment.
This Agreement may be amended or cancelled only by mutual agreement of the
parties in writing without the consent of any other person. So long as the
Executive lives, no person, other than the parties hereto, shall have any
rights under or interest in this Agreement or the subject matter hereof.
12. Successors and Affiliates.
This Agreement shall be binding on, and inure to the benefit of, the
Company and its successors and assigns and any person acquiring, whether by
merger, consolidation, purchase of assets or otherwise, all or
substantially all of the Company's assets and
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business. For purposes of this Agreement, the term "Affiliate" means (a)
any corporation, partnership, joint venture or other entity which, as of
the Termination Date, owns, directly or indirectly, at least fifty percent
of the voting power of all classes of stock of the Company (or any
successor to the Company) entitled to vote; and (b) any corporation,
partnership, joint venture or other entity in which, as of the Termination
Date, at least a fifty percent voting or profits interest is owned,
directly or indirectly, by the Company, by any entity that is a successor
to the Company, or by any entity that is an Affiliate by reason of clause
(a) next above. For purposes of Sections 4, 5, 6 and 8 and the releases set
forth in Exhibit 3 of this Agreement, the term "Affiliate" shall also
include any entity that would have been an "Affiliate" by reason of the
preceding sentence (including any successor to the assets or business of
any such Affiliate) at any time during the period of your employment by the
Company (and shall include any predecessor to any entity described in
clause (a) or (b)).
13. Effect of Breach.
The Executive acknowledges that the Company would be irreparably injured by
his violation of Section 5 or 6, and the Executive agrees that the Company
and its Affiliates, 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, as may
be permitted or applicable in the given circumstances, restraining the
Executive from any actual or threatened breach of Section 5 or 6.
14. Waiver of Breach.
The waiver by either the Executive or the Company (or the Affiliates) of a
breach of any provision of this Agreement shall not operate as or be deemed
a waiver of any subsequent breach by either the Executive or the Company.
Continuation of benefits hereunder by the Company following a breach by the
Executive of any provision of this Agreement shall not preclude the Company
from thereafter exercising any right that it may otherwise independently
have to terminate said benefits based upon the same violation.
15. 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).
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16. Releases.
As part of this Agreement, and in consideration of the payments provided to
you in accordance with this Agreement, you are required to execute the
General Release and Waiver and the Waiver and Release of Claims under the
Federal Age Discrimination in Employment Act, in the forms set forth as
Exhibit 3 of this Agreement, which is attached to and forms a part of this
Agreement.
17. Other Agreements.
Except as otherwise specifically provided in this Agreement, including but
not limited to Exhibit 1 attached hereto, this instrument constitutes the
entire agreement between the Executive and the Company and supersedes all
prior agreements and understandings, written or oral, including, without
limitation the Employment Agreement, the Change in Control Agreement and
any other employment agreements that may have been made by and between the
Executive and the Company or its predecessors or Affiliates. As of the
Termination Date, all rights, duties and obligations of both the Executive
and the Company pursuant to the Employment Agreement and the Change in
Control Agreement shall terminate.
18. 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, or sent by
facsimile or prepaid overnight courier to the parties at the addresses set
forth in Exhibit 4 of this Agreement (or such other addresses as shall be
specified by 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, registered or similar mail delivery,
five days after deposit in the local 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 mail or by overnight service are to be
delivered to the addresses set forth in Exhibit 4:
All notices to the Company shall be directed to the attention of the Chief
Executive Officer of the Company, 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.
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19. Governing 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 jurisdiction.
20. Arbitration of All Disputes.
(a) All controversies, claims, or disputes arising out of or related to
this Agreement, shall be settled by arbitration under the rules of the
American Arbitration Association then in effect in the State of New
York, as the sole and exclusive remedy of either party, and judgment
upon such award rendered by the arbitrator(s) may be entered in any
court of competent jurisdiction.
(b) The Executive and the Company shall each promptly select an arbitrator
and a third arbitrator shall be selected jointly by the arbitrators
selected by the parties within 15 days of their selection by the
Executive and the Company. If the arbitrators are unable to agree on a
third arbitrator within that period, then the Company or the Executive
may request that the American Arbitration Association select the third
arbitrator. The arbitrators shall possess substantive legal experience
in the principal issues in dispute and shall be independent of the
parties hereto.
(c) The arbitration shall take place at a location selected by the
arbitrators within the New York City metropolitan area. The
arbitrators shall have the authority to award any remedy or relief
that a court of competent jurisdiction could order or grant,
including, without limitation, the issuance of an injunction. Either
party may apply to a court for enforcement of the remedy or relief the
arbitrators order or grant.
(d) Any discovery permitted shall be limited to information directly
relevant to the controversy or claim in arbitration. In the event of
discovery disputes, the arbitrators are directed to issue such orders
as are appropriate to limit discovery in accordance with the foregoing
and as are reasonable in light of the issues in dispute, the amount in
controversy and other relevant considerations.
(e) The Company shall reimburse the Executive, upon demand, for all costs
and expenses (including, without limitation attorneys' fees)
reasonably incurred by the Executive in good faith in connection with
this arbitration provision, including without limitation, in
connection with any such application undertaken by the Executive in
good faith as well as for all such costs and expenses reasonably
incurred by the Executive in connection with entering or enforcing the
award rendered by the arbitrators.
(f) Except as necessary in court proceedings to enforce this arbitration
provision or an award rendered hereunder, neither a party nor an
arbitrator may disclose the existence, content or results of any
arbitration hereunder without the prior written consent of the
Company.
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21. 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 the
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.
22. Counterparts.
This Agreement may be executed in more than one counterpart, but all of
which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first set forth above.
TRENWICK GROUP LTD.
By: /s/ XXXXX X. XXXXXXX, XX.
--------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chairman, President &
Chief Executive Officer
/s/ XXXXXX X. XXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxx
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