Exhibit 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of March 7, 2002,
between Travelers Property Casualty Corp., a Connecticut corporation (the
"Company"), and Xxxxxx X. Xxxx (the "Executive") shall be effective upon the
initial public offering ("IPO") of the common stock of the Company (the
"Effective Date").
W I T N E S S E T H
WHEREAS, the Company desires to employ the Executive as Chairman and
Chief Executive Officer of the Company;
WHEREAS, the Company and the Executive desire to enter into the
Agreement as to the terms of his employment by the Company;
NOW THEREFORE, in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POSITION/DUTIES.
(a) During the Employment Term (as defined in Section 2 below), the
Executive shall serve as the Chairman and Chief Executive Officer of the
Company. In this capacity the Executive shall have such duties, authorities and
responsibilities commensurate with the duties, authorities and responsibilities
of persons in similar capacities in similarly sized companies and such other
duties and responsibilities as the Board of Directors of the Company (the
"Board") shall designate that are consistent with the Executive's position as
Chairman and Chief Executive Officer of the Company.
(b) During the Employment Term, the Executive shall devote
substantially all of his business time (excluding periods of vacation and other
approved leaves of absence) in the performance of his duties with the Company,
provided the foregoing will not prevent the Executive from (i) participating in
charitable, civic, educational, professional, community or industry affairs or
serving on the board of directors or advisory boards of other companies;
provided, however, that the Executive shall not serve as a director on more than
three boards of directors or advisory boards of other for profit companies or
with regard to any competitive company without the prior written approval of the
Board, and (ii) managing his and his family's personal investments so long as
such activities in the aggregate do not materially interfere with his duties
hereunder.
(c) The Board shall take such action as may be necessary to appoint or
elect the Executive as a member of the Board as of the Effective Date.
Thereafter, during the Employment Term, the Board shall nominate the Executive
for re-election as a member of the Board at the expiration of his then current
term.
2. EMPLOYMENT TERM. The Executive's term of employment under this
Agreement shall be for a term commencing on the Effective Date and ending on the
fifth anniversary of the Effective Date (the "Employment Term"), subject to
earlier termination as provided in Section 7, below. Without limiting the
foregoing, in the event that Citigroup does not distribute its remaining
interest in the Company (the "Distribution") by June 1, 2003, either the Company
or the Executive may elect to terminate the Employment Term on or prior to
December 31, 2003 by written notice to the other.
3. BASE SALARY. The Company agrees to pay the Executive a base salary
(the "Base Salary") at an annual rate of not less than $600,000, payable in
accordance with the regular payroll practices of the Company, but not less
frequently than monthly. The Executive's Base Salary shall be subject to annual
review by the Board (or a committee thereof) and may be increased, but not
decreased, from time to time by the Board. Furthermore, upon the Distribution,
the Board shall review the Executive's salary for increases such that it is
commensurate with the base salaries of persons in similar capacities in
similarly sized public companies. No increase to Base Salary shall be used to
offset or otherwise reduce any obligations of the Company to the Executive
hereunder or otherwise. The base salary as determined herein from time to time
shall constitute "Base Salary" for purposes of this Agreement.
4. BONUS. During the Employment Term, the Executive shall be eligible
to participate in the Company's bonus and other incentive compensation plans and
programs for the Company's senior executives at a level commensurate with his
position. The Executive shall have the opportunity to earn an annual bonus
measured against objective financial criteria to be determined by the Board (or
a committee thereof) in accordance with the Company's bonus and other incentive
compensation plans and programs under Section 162(m) of the Internal Revenue
Code of 1986, as amended (the "Code").
5. STOCK OPTIONS.
(a) INITIAL OPTION GRANT. The Board or the committee of the Board (the
"Committee") appointed to administer the Company's stock incentive plan (the
"Stock Incentive Plan") shall award the Executive, immediately prior to the
initial sales offer with regard to the IPO, an option under the Stock Incentive
Plan (the "Option") to purchase shares of the Company's common stock (the
"Common Stock") equal to $80,000,000 divided by the exercise price. The exercise
price shall be the price at which shares of Common Stock are initially offered
to purchasers in the IPO. Subject to accelerated vesting as set forth in this
Agreement, the Option shall vest (i) as to one-fifth of the shares of Common
Stock subject to the Option on the earlier of (x) the date which is 18 months
after the date of the grant or (y) the later of the Distribution or the first
anniversary of the Effective Date and (ii) as to one-fifth of the shares of
Common Stock subject to the Option on the second anniversary of the Effective
Date and each anniversary thereafter (with the last tranche vesting on the day
prior to the fifth anniversary of the Effective Date), conditioned upon
Executive's continued employment with the Company as of each vesting date. The
Option shall be for a term of 10 years and in the event of any termination of
employment shall remain exercisable thereafter for two years after such
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termination, but in no event beyond the stated 10-year term. Notwithstanding any
provision to the contrary in this Agreement or in any equity compensation,
benefit or other plan or prospectus, there will be no accelerated vesting of the
Option upon retirement, resignation or any other event, prior to the
Distribution except as provided in (b) below. Following the Distribution, there
will be no accelerated vesting of the Option upon the Executive's retirement
prior to the third anniversary of the IPO, unless the Option is accelerated as
provided in (b) below. Except as provided in this paragraph, the Option shall
vest upon the Executive's "retirement" as such term is defined in the Stock
Incentive Plan or individual grants thereunder. Vested shares of the Option
shall remain exercisable for at least two years after such retirement, but in no
event beyond the stated 10-year term. The agreement evidencing the Option shall
reflect the provisions of this Section 5(a), including, without limitation, the
vesting schedule set forth herein.
(b) ACCELERATION EVENTS The Option will be fully vested and immediately
exercisable in the event that there is no Distribution by June 1, 2003 and,
between such date and December 31, 2003, the Executive's employment is
terminated by the Company without Cause or the Executive resigns for any reason.
In addition, the Option shall be fully vested and immediately exercisable in the
event that (x) the Executive's employment is terminated by the Company without
Cause or the Executive voluntarily terminates his employment for Good Reason,
(y) the Executive dies or becomes Disabled or a Change in Control (as defined in
the Stock Incentive Plan) occurs or (z) the Employment Term expires on the fifth
anniversary of the Effective Date. Upon the foregoing events the Option shall
remain exercisable for at least two years but in no event beyond the ten-year
term.
(c) DISCRETIONARY GRANTS. In addition to the Option, at the sole
discretion of the Committee, the Executive shall be eligible for additional
annual grants of stock options and other equity awards.
(d) TRANSFERABILITY. The Option may be transferred, in whole or in
part, to a Family Member (as defined under the Securities Act of 1933, as
amended or Securities Act Form S-8). A Family Member who is a transferee of the
Option shall not be eligible to receive a reload stock option upon the exercise
of the Option.
(e) REGISTRATION. At all times during and after the Employment Term,
the Company shall maintain registrations on Form S-8 and/or another applicable
form.
6. EMPLOYEE BENEFITS.
(a) BENEFIT PLANS. The Executive shall be entitled to participate in
any employee benefit plan of the Company including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or other
retirement or welfare benefits that the Company has adopted or may adopt,
maintain or contribute to for the benefit of its senior executives at a level
commensurate with his positions. Except as otherwise provided herein, the
Executive's prior service with Citigroup shall be recognized for eligibility and
vesting purposes under any of the Company's or its affiliates' equity
compensation and benefit plans, including, but not limited
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to, being classified as a "retiree." Except as otherwise provided in this
Agreement, any vesting under the Company's equity compensation and benefit plans
shall be subject to and in accordance with the terms of the applicable plan or
program.
(b) VACATIONS. The Executive shall be entitled to an annual paid
vacation in accordance with the Company's policy applicable to senior
executives, but in no event less than four weeks per calendar year (as prorated
for partial years and accrued, but not used, with respect to prior years), which
vacation may be taken at such times as the Executive elects with due regard to
the needs of the Company.
(c) PERQUISITES. The Company shall provide to the Executive, at the
Company's cost, all perquisites to which other senior executives of the Company
are generally entitled to receive and such other perquisites which are suitable
to the character of the Executive's position with the Company and adequate for
the performance of his duties hereunder. To the extent legally permissible, the
Company shall not treat such amounts as income to the Executive.
(d) BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of
appropriate documentation, the Executive shall be reimbursed in accordance with
the Company's expense reimbursement policy for all reasonable and necessary
business and entertainment expenses incurred in connection with the performance
of his duties hereunder.
(e) OFFICE SPACE/TRAVEL.
(i) During the Employment Term, the Company shall provide the
Executive with suitable, furnished offices (and staff) in New York
and/or Connecticut for use in connection with the business of the
Company.
(ii) The parties recognize that, for security purposes, it
will be necessary for the Executive to travel by private aircraft for
business and personal purposes and shall make appropriate arrangements
with regard thereto. The Company shall fully gross up for tax purposes
any deemed income to the Executive arising pursuant to use of such
aircraft for business purposes, so that the economic benefit is the
same to the Executive as if such use was provided on a non-taxable
basis to the Executive.
7. TERMINATION. The Executive's employment and the Employment Term
shall terminate on the first of the following to occur:
(a) DISABILITY. Upon 30 days written notice by the Company to the
Executive of termination due to Disability, while the Executive remains
Disabled, but only after the Executive has been Disabled and unable to perform
his material duties for at least six consecutive months. For purposes of this
Agreement, "Disability" or "Disabled" shall be determined in accordance with the
terms and procedures of the Company's applicable Long Term Disability Plan,
except with respect to any termination of employment provision contained
therein.
(b) DEATH. Automatically on the date of death of the Executive.
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(c) CAUSE. Immediately upon written notice by the Company to the
Executive of a termination for Cause, provided that such notice is given within
90 days after the discovery of the Cause event by the Chairman of the Audit
Committee of the Board or Chairman of the Compensation Committee of the Board.
"Cause" shall mean (i) the willful misconduct of the Executive with regard to
the Company that is materially injurious to the Company, provided, however, that
no act or failure to act on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that his action or omission was in the best interests
of the Company; (ii) the willful and continued failure of the Executive to
attempt to substantially perform the Executive's duties with the Company (other
than any such failure resulting from incapacity due to physical or mental
illness) which failure is not remedied within 15 business days of written notice
from the Company specifying the details thereof; or (iii) the conviction of the
Executive of (or the pleading by the Executive of nolo contendere to) any felony
(other than traffic related offenses or as a result of vicarious liability).
Notwithstanding the foregoing, following the Distribution, the
Executive shall not be deemed to have been terminated for Cause without (i)
advance written notice provided to the Executive not less than 14 days prior to
the date of termination setting forth the Company's intention to consider
terminating the Executive, including a statement of the date of termination and
the specific detailed basis for such consideration for Cause; (ii) an
opportunity of the Executive, together with his counsel, to be heard before the
Board during the 14 day period ending on the date of termination; (iii) a duly
adopted resolution of the Board, after such opportunity, stating that in
accordance with the provisions of the next to the last sentence of this Section
7(c), that the actions of the Executive constituted Cause and the basis thereof;
and (iv) a written determination provided by the Board setting forth the acts
and omissions that form the basis of such termination of employment. Any
determination by the Board hereunder shall be made by the affirmative vote of at
least a two-thirds majority of the members of the Board (other than the
Executive). Any purported termination of employment of the Executive by the
Company following the Distribution which does not meet each and every
substantive and procedural requirement of this Section 7 shall be treated for
all purposes under this Agreement as a termination of employment without Cause.
(d) WITHOUT CAUSE. Upon written notice by the Company to the Executive
of an involuntary termination without Cause, other than for death or Disability.
(e) GOOD REASON. Upon written notice by the Executive to the Company of
a termination for Good Reason. "Good Reason" shall mean, without the express
written consent of the Executive, the occurrence of any of the following events
unless such events are fully corrected in all material respects by the Company
within 30 days following written notification by the Executive to the Company
that he intends to terminate his employment hereunder for one of the reasons set
forth below:
(i) any reduction or diminution (except temporarily during any
period of Disability) in the Executive's then titles or positions, or a
material reduction or
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diminution in the Executive's then authorities, duties or
responsibilities or reporting requirements with the Company, including
but not limited to a failure to elect the Executive to the Board or
removal of the Executive from the Board; or
(ii) a material breach by the Company of any provisions of
this Agreement, including, but not limited to, any reduction in any
part of the Executive's then compensation (including Base Salary) or
benefits or any failure to timely pay any part of Executive's
compensation (including Base Salary and bonus, if any) or to provide
the benefits contemplated herein; or
(iii) the failure of the Company to obtain and deliver to the
Executive a satisfactory written agreement from any successor to the
Company to assume and agree to perform this Agreement.
(f) WITHOUT GOOD REASON. Upon written notice by the Executive to the
Company of the Executive's voluntary termination of employment without Good
Reason (which the Company may, in its sole discretion, make effective earlier
than any notice date).
(g) NO DISTRIBUTION BY JUNE 1, 2003. The Employment Term may be
terminated by either party as provided in Section 2 in the event that there is
no Distribution by June 1, 2003.
8. CONSEQUENCES OF TERMINATION.
(a) DISABILITY. Upon such termination, the Company shall pay or provide
the Executive (i) any unpaid Base Salary through the date of termination and any
accrued vacation; (ii) any unpaid bonus as declared or, if not then declared, as
determined by the Board in good faith, with respect to the performance year
ending preceding the date of termination; (iii) reimbursement for any
unreimbursed expenses incurred through the date of termination; (iv) a pro-rata
portion of the Executive's bonus for the performance year in which the
Executive's termination occurs (determined by multiplying the amount the
Executive would have received had employment continued through the end of the
performance year, as determined by the Board in good faith, by a fraction, the
numerator of which is the number of days during the performance year of
termination that the Executive is employed by the Company and the denominator of
which is 365); and (v) all other payments, benefits or fringe benefits to which
the Executive may be entitled under the terms of any applicable compensation
arrangement or benefit, equity or fringe benefit plan or program or grant or
this Agreement (collectively, "Accrued Benefits"). If the Executive's employment
should be terminated pursuant to Section 7(a), the numerator in the calculation
of the pro-rata portion of the Executive's bonus under Section 8(a)(iv) shall
exclude any period during which the Executive is classified by the Company as an
inactive employee.
(b) DEATH. In the event the Employment Term ends on account of the
Executive's death, the Executive's estate shall be entitled to any Accrued
Benefits.
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(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON, ETC. If the
Executive's employment should be terminated (v) by the Company for Cause, or (w)
by the Executive without Good Reason, or (x) upon expiration of the Employment
Term on the fifth anniversary of the Effective Date, or (y) upon Executive's
retirement or (z) pursuant to Section 7(g), the Company shall pay to the
Executive any Accrued Benefits (other than those described in Sections 8(a)(ii)
and (iv) if the Executive's employment is terminated by the Company for Cause).
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON AFTER DISTRIBUTION.
Except as provided in Section 8(e) below, if the Executive's employment by the
Company is terminated at any time after the consummation of the Distribution,
but prior to the fifth anniversary of the Effective Date (x) by the Company
other than for Cause or (y) by the Executive for Good Reason, the Company shall
pay or provide the Executive with (i) Accrued Benefits; and (ii) shall pay to
the Executive a lump sum in cash within 30 days of the date of termination in an
amount equal to the product of (A) the sum of (1) the Base Salary and (2) the
highest annual bonus paid or payable to the Executive for the three performance
years prior to the date of termination (or such lesser number of performance
years as shall actually have been completed prior to the date of termination)
multiplied by (B) two. For purposes of the foregoing, no bonus paid or payable
with respect to performance years beginning before January 1, 2002 shall be
taken into account for purposes of determining the lump sum payment payable
pursuant to this Section 8(d).
(e) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON IMMEDIATELY PRIOR TO
OR FOLLOWING A CHANGE OF CONTROL WHICH OCCURS AFTER DISTRIBUTION. If the
Executive's employment by the Company is terminated (x) by the Executive for any
reason (whether with or without Good Reason) during the period beginning on the
six-month anniversary of a Change in Control which occurs after Distribution (as
defined in the Stock Incentive Plan) and ending 60 days thereafter, (y) by the
Company without Cause or by the Executive for Good Reason at any time during the
period beginning on the date of the Change in Control which occurs after
Distribution and ending on the second anniversary of the Change in Control or
(z) by the Company without Cause or by the Executive for Good Reason at any time
during the period beginning on the later of (A) the date six months prior to a
Change in Control or (B) the date of the Distribution and ending immediately
prior to the Change in Control, then the Company shall pay or provide the
Executive with (i) Accrued Benefits and (ii) shall pay to the Executive a lump
sum in cash within 30 days of the date of termination in an amount equal to the
product of (A) the sum of (1) the Base Salary in effect immediately prior to
termination and (2) the highest annual bonus paid or payable to the Executive
for the three performance years prior to the date of termination (or such lesser
number of performance years as shall actually have been completed prior to the
date of termination) multiplied by (B) three. Payments and benefits provided
under this Section 8(e) shall be in lieu of the payments and benefits provided
under Section 8(d) and, to the extent any amounts are paid or provided under
Section 8(d), payments and benefits provided under this Section 8(e) shall be
offset or reduced. For purposes of the foregoing, no bonus paid or payable with
respect to performance years beginning before January 1, 2002 shall be taken
into account for purposes of determining the lump sum payment payable pursuant
to this Section 8(e).
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(f) Any termination payments made and benefits provided under this
Agreement to the Executive shall be in lieu of any termination or severance
payments or benefits for which the Executive may be eligible under any of the
plans, policies or programs of the Company or its affiliates.
9. RELEASE. Any and all payments made and benefits provided under this
Agreement to the Executive upon termination of employment including but not
limited to, those referenced in subparagraphs 5(b) or paragraph 8 shall be
contingent upon the full execution of a general release of all claims by the
Executive against the Company and its affiliates in a form substantially in the
form of Exhibit A hereto and mutually agreed upon by the Executive and the
Company. Accrued Benefits other than those described in Sections 8(a)(ii) and
(iv) shall not be contingent on the execution of such release.
10. EXCISE TAX. In the event that the Executive becomes entitled to
payments and/or benefits which would constitute "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, the provisions of Exhibit B shall
apply.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except as
provided in Section 11(b) below, no party may assign or delegate any rights or
obligations hereunder without first obtaining the written consent of the other
party hereto.
(b) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company and
any successor to its business and/or assets, which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(c) This Agreement shall inure to the benefit of and be enforceable by
the Executive and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to him hereunder
had he continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there is no such designee, to his estate.
12. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery if delivered by hand,
(ii) on the date of transmission, if delivered by confirmed facsimile, (iii) on
the first business day following the date of deposit if delivered by guaranteed
overnight delivery service, or (iv) on the fourth business day following
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the date delivered or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At the address (or to the facsimile number) shown on the
records of the Company
If to the Company:
Travelers Property Casualty Corp.
0 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Secretary
Facsimile: 860.277.8123
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. (a) CONFIDENTIALITY. The Executive acknowledges that in his
employment hereunder he will occupy a position of trust and confidence. The
Executive shall not, except as in good faith deemed necessary or desirable by
the Executive to perform his duties hereunder, or as required by applicable law
or legal process, without limitation in time or until such information shall
have become public or known in the Company's industry other than by the
Executive's unauthorized disclosure, disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Company. "Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective employees, clients and customers that is not
disclosed by the Company for financial reporting purposes and that was learned
by the Executive in the course of his employment by the Company, including
(without limitation) any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists and all papers, resumes, and records
(including computer records) of the documents containing such Confidential
Information.
(b) NON-SOLICITATION OF EMPLOYEES. The Executive recognizes that he
possesses and will possess confidential information about other employees of the
Company relating to their education, experience, skills, abilities, compensation
and benefits, and inter-personal relationships with customers of the Company.
The Executive recognizes that the information he possesses and will possess
about these other employees is not generally known, is of substantial value to
the Company in developing its business and in securing and retaining customers,
and has been and will be acquired by him because of his business position with
the Company. The Executive agrees that, during the Employment Term and for the
one year period thereafter, he will not, directly or indirectly, solicit or
recruit any non-administrative or non-clerical employee of the Company whose W-2
earnings for the immediately preceding calendar year were $200,000 or above for
the purpose of being employed by him or by any competitor of the Company on
whose behalf he is acting as an agent, representative or employee.
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(c) NON-SOLICITATION OF CUSTOMERS. The Executive recognizes that he
possesses and will possess confidential and proprietary business information
about customers of the Company and that the customer information he possesses
and will possess is not generally known, is of substantial value to the Company
in developing its business and securing and retaining customers, and will be
acquired by him because of his business position with the Company. The Executive
agrees that, during the Employment Term and for the one-year period thereafter,
he will not personally solicit or induce any customers of the Company with whom
he had contact during his employment with the Company to divert any portion of
its business with the Company to another person or entity or direct that such
customers be targeted for diversion as a result of (i) his prior relationship
with them on behalf of the Company or (ii) an effort targeted primarily at
customers of the Company.
(d) EQUITABLE RELIEF AND OTHER REMEDIES. The Executive acknowledges and
agrees that the Company's remedies at law for a breach or threatened breach of
any of the provisions of this Section would be inadequate and, in recognition of
this fact, the Executive agrees that, in the event of such a breach or
threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.
(e) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 13 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(f) SURVIVAL OF PROVISIONS. Without effect as to the survival of other
provisions of this Agreement intended to survive the termination or expiration
of the Executive's employment, the obligations contained in this Section 13
shall survive the termination or expiration of the Executive's employment with
the Company and shall be fully enforceable thereafter.
14. COORDINATION. With regard to the equity grants, payments and
benefits described in this Agreement (the "Contract Rights") the provisions of
this Agreement, to the extent that they are more favorable to the Executive
(other than accelerated vesting upon the Executive's retirement prior to the
third anniversary of the IPO),shall control over any provisions to the contrary
in any plan, program, or equity grant applicable to the Executive. The Company
shall not impose any restrictions not contained in this Agreement on the
Contract Rights, and shall not condition any future equity grants, payments, or
benefits not contemplated by this Agreement upon the Executive's agreement to
any additional restrictions on the Contract Rights. However, nothing shall limit
the Company's discretion to include any new or different terms, conditions, or
restrictions in any future equity grant, payment or benefit to the Executive not
contemplated by this Agreement.
15. ATTORNEY'S FEES.
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(a) In the event of any dispute arising out of or under this Agreement
or the Executive's employment with the Company and the arbitrator determines
that the Executive has prevailed on the issues in the arbitration, the Company
shall, upon presentment of appropriate documentation, promptly, at the
Executive's election, pay or reimburse the Executive for all reasonable legal
and other professional fees, costs of arbitration and other expenses incurred in
connection therewith by the Executive.
(b) The Company shall promptly pay the Executive's reasonable costs of
entering into this Agreement, including the reasonable fees and expenses of his
counsel.
(a) The Company shall gross up for tax purposes any deemed income to
the Executive arising pursuant to the payments provided under this Section 15,
so that the economic benefit is the same to the Executive as if such payments
were provided on a non-taxable basis to the Executive. Payments pursuant to this
Section 15 shall be made on a current ongoing basis.
16. SECTION HEADINGS. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
17. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity of unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instruments.
19. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement, other than injunctive relief under Section 13(d)
hereof, shall be settled exclusively by arbitration, conducted before a single
arbitrator in New York, New York in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect. The decision of the arbitrator will be final and binding upon the
parties hereto. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Nothing herein shall limit either the right of the Company
or the Executive to seek injunctive relief in a court of applicable
jurisdiction.
20. INDEMNIFICATION. In addition to any other rights of indemnification
of the Executive, the Company hereby covenants and agrees to promptly indemnify
the Executive (or, in the event of his death, his heirs, executors,
administrators or legal representatives) and hold him harmless to the fullest
extent permitted by law against and in respect to any and all actions, suits,
proceedings, claims, demands, judgments, costs, expenses (including attorney's
fees), penalties, fines, settlements, losses, and damages resulting from, or in
connection with, the Executive's employment with, and serving as a director of,
the Company, including but not limited to as an officer and director of any
subsidiary or as a fiduciary of any employee benefit
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plan. The Company, within 10 days of presentation of invoices, shall advance to
the Executive reimbursement of all legal fees and disbursements reasonably
incurred by the Executive in connection with any potentially indemnifiable
matter; provided, however, that to the extent required by applicable law, in
order to receive such advanced fees and disbursements, the Executive must first
sign an undertaking reasonably satisfactory to the Company that he will promptly
repay the Company all advanced fees and disbursements in the event it is finally
determined in accordance with law that the Executive cannot be indemnified for
the matter at issue under applicable law. The burden of proving that
indemnification of the Executive is not permissible at law shall be on the
Company.
21. LIABILITY INSURANCE. The Company shall cover the Executive under
directors and officers liability insurance both during and, while potential
liability exists (but no less than six years), after the term of this Agreement
in the same amount and to the same extent, if any, as the Company covers its
other officers and directors.
22. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or director as may be
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement together with all exhibits hereto sets
forth the entire agreement of the parties hereto in respect of the subject
matter contained herein. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
23. FULL SETTLEMENT. Except as set forth in this Agreement, the
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including without limitation, set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obliged to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned by the
Executive as a result of employment by another employer.
24. REPRESENTATIONS.
(a) The Company represents and warrants that there is no legal or other
impediment or limitation to the Company's performance of its obligations.
(b) The Executive represents and warrants to the Company that he has
the legal right to enter into this Agreement and to perform all of the
obligations on his part to be performed
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hereunder in accordance with its terms and that he is not a party to any
agreement or understanding, written or oral, which could prevent him form
entering into this Agreement or performing all of his obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TRAVELERS PROPERTY CASUALTY CORP.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Title: General Counsel
----------------------------
XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
---------------------------------
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EXHIBIT A
FORM OF RELEASE
Agreement and General Release ("Release"), by and between Xxxxxx X.
Xxxx ( "your" or "you") and Travelers Property Casualty Corp. ("TAPCO").
1. Pursuant to your Employment Agreement with TAPCO dated as of March 7,
2002 ("Employment Agreement"), your [termination/retirement] will be
effective at the close of business on ___________, 200_ ("Termination
or Retirement Date").
2. You agree that as of the Effective Date of this Agreement (defined in
Paragraph 15) you will resign as an officer, director, or member of any
internal and any outside directorships, memberships, or other
affiliations in which you participate as a representative of TAPCO [to
the extent not remaining in such capacity].
3. Following your Termination or Retirement Date you will receive
information as to COBRA elections from the COBRA administrator for
certain benefits (i.e., medical and dental) that you may wish to
continue.
4. In consideration for the payments and benefits provided under the
Employment Agreement upon your [termination/retirement] pursuant to
Sections 5(b) and 8 of the Employment Agreement, you, on your behalf,
and on behalf of your agents, assignees, attorneys, heirs, executors,
and administrators (collectively referred to as "Releasors"), covenant
not to xxx and release TAPCO, its past and present parents, affiliates,
successors, assigns, subsidiaries, divisions, and related business
entities (collectively referred to as the "Company") and its or their
current or former officers, directors, shareholders, employees, agents
and representatives (collectively referred to as "Releasees") from any
and all liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of money, controversies, agreements, promises,
damages, pay, bonus, stock, stock options, costs, expenses, attorneys'
fees, and remedies of any type that Releasors may have by reason of any
matter, cause, act or omission including, but not limited to, those
arising out of or in connection with your employment with or separation
from the Company. This covenant not to xxx and general release shall
apply to all disputes, claims, liens, injuries and damages, whether
known or unknown, occurring at any time on or before the Effective Date
of this Agreement and includes, but is not limited to, a full release
of:
- any claims under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967, the Rehabilitation
Act of 1973, the Civil Rights Act of 1866, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, the Civil Rights Act of 1991, the Equal Pay Act of
1963, the Family and Medical Leave Act of 1993, the Fair Labor
Standards Act of 1938, the Older Workers Benefit Protection Act
of 1990, the Occupational Safety and Health Act of 1970, the
Worker Adjustment and Retraining Notification
Act of 1989, the New York State Human Rights Law, the New York
City Human Rights Ordinance, and the Connecticut Human Rights and
Opportunities Law, and
- any other federal, state, or local statute or regulation
regarding employment, employment discrimination, termination of
employment, retaliation, equal opportunity, and wage and hour.
You specifically understand that you are releasing, among other claims,
claims based on age, race, color, sex, sexual orientation or
preference, marital status, religion, national origin, citizenship,
veteran status, disability, and any other legally protected categories
as well as other compensation-related claims. This also includes a
release of any claims for breach of contract, any tortious act or other
civil wrong, attorneys' fees, and all compensation and benefit claims
including without limitation claims concerning salary, bonus, and any
awards, grants or purchases under any equity and incentive compensation
plan or program including but not limited to Capital Accumulation Plan
or similar plan, and any separation pay plan maintained by the Company
or any of its affiliates or subsidiaries. You acknowledge that this
release is intended to include, without limitation, all claims known or
unknown that you have or may have against the Company and Releasees
through the Effective Date of this Agreement, including but not limited
to those which arise out of or relate to your employment with or
separation from the Company. Notwithstanding anything herein, you
expressly reserve and do not release (a) your rights under any
applicable pension plan or any other employee benefit plan (other than
any equity compensation plan), under any vacation or sick leave policy
or under COBRA, (b) your vested rights to any equity under any equity
compensation plan, (c) claims arising after the Effective Date of this
Agreement, or with respect to the enforcement of this Agreement, (d)
your rights of indemnification or contribution to which you were
entitled immediately prior to the Termination or Retirement Date under
the Company's By-laws, the Company's Certificate of Incorporation or
otherwise with regard to your service as an officer or director of the
Company or your service as a fiduciary with regard to any employee
benefit plan, including, without limitation, pursuant to Section 20 of
the Employment Agreement, (e) your rights as a stockholder or (f) your
rights under Sections 10 and 21 of the Employment Agreement.
5. In consideration of the covenants and undertakings set forth herein,
the Company hereby covenants not to xxx and releases you from liability
for any and all acts or omissions including but not limited to, those
occurring during or in connection with your employment with or
separation from the Company or as a stockholder of the Company. This
covenant not to xxx and general release shall apply to all disputes,
claims, liens, injuries and damages, whether known or unknown,
occurring at any time on or before the Effective Date of this
Agreement. This release and covenant not to xxx shall not apply to any
breach of this Agreement or any claims against you by the Company for
any debt or credit obligations including but not limited to any
insurance, loan, mortgage, or credit card debt owed by you to the
Company.
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6. (a) You represent that you have not and will not file, directly or
indirectly, any claims against the Company or the Releasees in
any court, administrative agency, or arbitration, concerning any
claims released herein.
(b) In the event that you have filed, directly or indirectly, claims
against the Company or Releasees in any forum which are released
herein, you agree to notify Xxxxx Xxxxxxxx, Esq., Travelers
Property Casualty Corp., 0 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, and to withdraw with prejudice any such claims before
signing this Agreement. You acknowledge and agree that you are
not eligible to receive the payments and benefits set forth in
Section 5(b) or 8 of the Employment Agreement prior to such
withdrawal.
7. To the extent permitted by applicable law, you agree not to participate
or assist in any action, complaint, charge, claim, or proceeding
against the Company or the Releasees of any kind on behalf of any other
person or entity (except pursuant to a court order, in response to a
valid subpoena, or as requested by the Company or its attorneys) with
regard to matters relating to your period of employment with the
Company. You further agree that you will not seek or accept any award,
judgment or settlement from any source or proceeding against the
Company or the Releasees with respect to any claim or right arising
from any act, omission, transaction, or occurrence through the
Effective Date of this Agreement released herein.
8. Nothing contained in this Agreement is intended to prohibit or restrict
you from providing truthful information concerning your employment or
the Company's business activities to any government, regulatory or
self-regulatory agency.
9. Subject to your reasonable business commitments, you agree to
reasonably cooperate with the Company and its counsel with regard to
any past, present, or future legal matters which relate to or arise out
of the business you conducted on behalf of the Company. You will be
entitled to your reasonable actual out-of-pocket expenses incurred in
connection with providing such cooperation, including reasonable travel
and reasonable attorneys' fees, following submission of appropriate
documentation.
10. The terms of this Agreement are not an admission of liability or
wrongdoing by either you or the Company.
11. You agree to return to the Company all documents, correspondence,
memoranda, disks, audio or video tapes, written and other files, notes,
manuals, handbooks, and account records (whether stored electronically
or otherwise) in your possession, including but not limited to
Confidential Information as defined in your Employment Agreement, upon
the execution of this Agreement. Your "possession" includes any person
or entity to whom you may have given such information other than in
connection with the performance of your duties for the Company.
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12. Except with respect to Paragraph 4 above, the invalidity or
unenforceability of any provision of this Agreement shall have no
effect upon and shall not impair the validity or enforceability of any
other provision of this Agreement.
13. This Agreement shall be governed by the laws of the State of New York
(regardless of conflict of laws principles) as to all matters including
without limitation validity, construction, effect, performance, and
remedies.
14. You acknowledge that: (i) you have read and understand each of the
provisions of this Agreement; (ii) you have consulted with an attorney
prior to executing this Agreement; (iii) you have been given twenty-one
(21) days from your receipt of this Agreement to review it and to
consider your decision to sign it; (iv) you are entering into this
Agreement of your own free will; and (v) this Agreement is not intended
to be a prospective waiver of claims arising after the Effective Date
of this Agreement.
15. This Agreement shall not become effective or enforceable until eight
(8) days following its execution by you ("Effective Date") during which
time you or the Company may revoke this Agreement by notifying Xxxxx
Xxxxxxxx, Esq., at the address above, in writing.
16. Notwithstanding anything in this Agreement, the provisions in your
Employment Agreement which are intended to survive termination of your
Employment Agreement, including but not limited to those contained in
Section 13 thereof, shall survive and continue in full force and
effect.
Travelers Property Casualty Corp. Agreed to and accepted by:
------------------------------------ -------------------------------------
By: [Name] Xxxxxx X. Xxxx
------------------------------------ -------------------------------------
Date Date
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EXHIBIT B
GROSS-UP PROVISIONS
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that the Executive shall become entitled to
payments and/or benefits provided by this Agreement or any other amounts in the
"nature of compensation" (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company or any affiliate, any
person whose actions result in a change of ownership or effective control of the
Company covered by Section 280G(b)(2) of the Code or any person affiliated with
the Company or such person) as a result of such change in ownership or effective
control of the Company (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of paragraph (c), all determinations
required to be made under this Exhibit B, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by a nationally
recognized accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. The Accounting Firm shall
be jointly selected by the Company and the Executive and shall not, during the
two years preceding the date of its selection, have acted in any way on behalf
of the Company or its affiliated companies. If the Company and the Executive
cannot agree on the firm to serve as the Accounting Firm, then the Company and
the Executive shall each select a nationally recognized accounting firm and
those two firms shall jointly select a nationally recognized accounting firm to
serve as the Accounting Firm. All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Exhibit B, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
paragraph (c) hereof and the Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which he or she gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company shall bear
and pay directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for
any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment
of costs and expenses. Without limitation on the foregoing provisions
of this paragraph (c), the Company shall control all proceedings taken
in connection with such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with respect
to any imputed income with respect to such advance; and further
provided the Executive shall not be required by the Company to
2
agree to any extension of the statute of limitations relating to the
payment of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due unless such extension
is limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which
a Gross-Up Payment would be payable hereunder and the Executive shall
be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to paragraph (c) hereof, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of paragraph (c) hereof) promptly
pay to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to paragraph (c) hereof,
a determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
(e) If, pursuant to regulations issued under Section 280G or 4999 of
the Code, the Company and the Executive were required to make a preliminary
determination of the amount of an excess parachute payment and thereafter a
redetermination of the Excise Tax is required under the applicable regulations,
the parties shall request the Accounting Firm to make such redetermination. If
as a result of such redetermination an additional Gross-Up Payment is required,
the amount thereof shall be paid by the Company to the Executive within five
days of the receipt of the Accounting Firm's determination. If the
redetermination of the Excise Tax results in a reduction of the Excise Tax, the
Executive shall take such steps as the Company may reasonably direct in order to
obtain a refund of the excess Excise Tax paid. If the Company determines that
any suit or proceeding is necessary or advisable in order to obtain such refund,
the provisions of paragraph (c) hereof relating to the contesting of a claim
shall apply to the claim for such refund, including, without limitation, the
provisions concerning legal representation, cooperation by the Executive,
participation by the Company in the proceedings and indemnification by the
Company. Upon receipt of any such refund, the Executive shall promptly pay the
amount of such refund to the Company. If the amount of the income taxes
otherwise payable by the Executive in respect of the year in which the Executive
makes such payment to the Company is reduced as a result of such payment, the
Executive shall, no later than the filing of his income tax return in respect of
such year, pay the amount of such tax benefit to the Company. In the event there
is a subsequent redetermination of the Executive's income taxes resulting in a
reduction of such tax benefit, the Company shall, promptly after receipt of
notice of such reduction, pay to the Executive the amount of such reduction. If
the Company objects to the calculation or recalculation of the tax benefit, as
described in the preceding two sentences, the Accounting Firm shall make the
final determination of the appropriate amount. The Executive shall not be
obligated to pay to the Company the amount of any further tax benefits that may
be realized by him or her as a result of paying to the Company the amount of the
initial tax benefit.
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