1
(Exhibit 10.12)
January 24, 2000
Xxxx X. Xxxxxxx
00 Xxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Dear Xxxx:
In recognition of your many years of service and highly valued contributions, I
am pleased to set forth our mutual agreement regarding your resignation as
President and Chief Operating Officer of X.X. Xxxxxxx Corporation (the
"Company").
1. Your resignation from the Company as President and Chief Operating
Officer will be effective as of the close of business on March 1,
2000.
2. You will continue to have the use of your current office and
secretarial arrangements through March 1, 2000. Thereafter, at your
request, the Company will provide a temporary office for your use
until the earlier of one year from the date hereof or the date on
which you commence other employment.
3. The Company will pay you annual compensation at the rate of $620,000
per year for the period commencing on March 1, 2000 and terminating on
February 28, 2001 and at the rate of $650,000 per year for the period
commencing on March 1, 2001 and terminating on February 28, 2003. Such
payments will be made on a biweekly basis on the Company's regular
payroll cycle.
4. The Company will make additional payments to you of $300,000 on January
1, 2001 and $300,000 on January 1, 2002; provided, however, that you
will not be entitled to the payment of $300,000 on January 1, 2002 (the
"Second Installment Payment") if, prior to such date, you have
commenced other employment, whether or not you continue to be employed
on January 1, 2002. For purposes of this letter agreement, "other
employment" shall include any services as an employee, independent
contractor, consultant or advisor other than Limited Consulting
Services. Limited Consulting Services means services provided by you to
any one or more unrelated
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January 24, 2000
Page 2
employers or businesses (other than the Company) prior to or as of
January 1, 2002 which (i) consist solely of consultation and advice
directed to specific aspects of the business or affairs of such
employer or business (each, with its affiliates, an "Employer") and not
to the business or affairs of the Employer, or of an operating unit or
segment thereof, as a whole; (ii) do not extend, for any Employer, for
a period of more than 120 days, whether or not consecutive; (iii) do
not involve or result in your employment by an Employer, or the
provision by you of consulting or advisory services (other than Limited
Consulting Services) to such Employer, or your becoming an officer or
director of such Employer, in each such case at any time prior to March
1, 2003; (iv) do not involve or result in an agreement or arrangement
(whether or not in writing), at any time prior to March 1, 2003, for
your employment by, or your provision of consulting or advisory
services to, or your becoming an officer or director of, an Employer;
(v) do not result in your being eligible for benefits from the Employer
of a kind referred to in the second sentence of paragraph 8 hereof; and
(vi) do not preclude you from performing your obligations under
paragraph 7 hereof. You will, prior to performing Limited Consulting
Services for any Employer, advise the Company in writing of the name of
such Employer (except that you need not advise the Company of the name
of an Employer that does not engage in any business that is competitive
with any business of the Company) and the nature and principal terms of
such Limited Consulting Services and shall certify in writing that such
services will constitute Limited Consulting Services hereunder. In the
event that the Chairman of the Board of the Company believes that any
services so to be provided by you should not be deemed to be Limited
Consulting Services, such matter shall be referred for resolution to
Xxxx X. Xxxxxxx, whose determination with respect thereto shall be
final and binding upon you and the Company, and each of you and the
Company agrees not to challenge such determination in any action or
proceeding. In the event of a breach by you of any of the provisions of
this paragraph 4, or if you should receive any payment or benefits
under this letter agreement to which you are not entitled because you
commenced other employment, and without limiting any other rights or
remedies available to the Company with respect to such breach, the
Company shall be entitled to (i) recover the Second Installment
Payment, if already made, together with the costs of any such benefits,
and/or (ii) without duplication of any recovery under clause (i), cease
making payments under this letter agreement provided that the amount of
payments ceased being made shall
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January 24, 2000
Page 3
not exceed the amount of the Second Installment Payment plus the amount
of any such costs.
5. Options to purchase shares of the Company's common stock granted to
you under the X.X. Xxxxxxx Corporation First Amended and Restated 1992
Stock Option Plan which shall have vested as of the earlier of the
dates hereinafter referred to shall be canceled and of no force or
effect from and after the earlier of March 1, 2003 or the date on
which you commence other employment, and, except as otherwise provided
herein, prior to such cancellation shall continue to be subject to the
terms and conditions of the option agreements between you and the
Company pursuant to which such options were granted. You will not be
granted any options after the date of this letter agreement.
6. Your active responsibilities as an officer of the Company will
terminate immediately and your regular employment with the Company
will terminate effective as of the close of business on March 1, 2000.
To the extent otherwise eligible, you will continue to participate in
all Company benefit plans through that date.
7. The Company will distribute your accumulated benefits under the
Company's Profit Sharing Plan, Deferred Compensation Plan and Benefit
Replacement Plan in accordance with each Plan's provisions and, to the
extent consistent therewith, per your written direction. Anything
herein to the contrary notwithstanding, to the extent that a
distribution of your accumulated benefits under the terms any of the
foregoing plans is conditioned on your termination of employment with
the Company, you will not be allowed to receive a distribution from
such plan until your employment has terminated as provided in paragraph
8 hereof. You acknowledge and agree that you will not be entitled to
any distribution of benefits accrued as of the date of this letter
agreement under the Company's Annual Incentive Compensation Plan and
hereby waive any right to any such benefits. You further acknowledge
and agree that all outstanding Units (as therein defined) awarded to
you under the Company's Long-Term Incentive Compensation Plan shall be
canceled and all of your rights with respect thereto and under such
plan shall expire upon the date of this letter agreement.
8. From March 1, 2000 until the earlier of March 1, 2003 or the date on
which you commence other employment, you will have the status of
standby employee but you hereby waive any right you have to participate
during such period in the Company's Profit
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January 24, 2000
Page 4
Sharing Plan, Deferred Compensation Plan, Benefit Replacement Plan,
Annual Incentive Compensation Plan and Long-Term Incentive Compensation
Plan, and in all of the Company's other executive compensation or
benefit plans, other than the Company's Flexible Compensation Plan, in
which you will have the right to continue to participate during such
period. During such period, the Company will provide you with continued
medical, term life insurance and long-term disability benefits
equivalent to that (and at the same cost basis to you) provided for
other employees or will reimburse you for the cost of comparable
coverage. Thereafter, you will be able to elect continuation coverage
for yourself and your covered dependents under the Company's medical
plan in accordance with the Consolidated Omnibus Budget Reconciliation
Act of 1986, as amended ("COBRA"). The foregoing provisions are not
intended to affect your rights, if any, under the Company's group term
life insurance plan to convert such coverage to individual coverage at
your expense upon termination of employment. At the time your status as
a standby employee terminates as provided herein, you shall not be
entitled to any form of termination pay or other benefit under any
severance benefit plan or similar arrangement for former employees of
the Company. You acknowledge and agree that as of March 1, 2000, you
will not, except as otherwise expressly provided in this letter
agreement, be entitled to any bonus, commission, fees, vacation pay or
other payment (other than any accrued salary) from the Company or any
of its subsidiaries or affiliates for any period. As a standby
employee, you agree to furnish to the Company your best advice,
information, judgment and knowledge with respect to the operations of
the Company's businesses. You shall furnish such advice at the request
of the Company's Chairman of the Board at mutually agreeable times. You
may furnish your services in person, by telephone or other means of
electronic communication during normal business hours.
9. Simultaneously herewith, you will execute the General Release in the
form annexed hereto as Attachment 1 and made a part hereof.
10. Simultaneously herewith, you will deliver your resignation from
various boards and committees in the form annexed hereto as Attachment
2 to be effective as of the date set forth therein.
11. This letter agreement and the annexed General Release and resignation,
and all of our respective rights thereunder, shall be binding upon,
inure to the benefit of, and be
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January 24, 2000
Page 5
enforceable by, the parties hereto and their respective successors,
assigns, personal or legal representatives, executors, administrators,
heirs, distributees, devisees and legatees. If you should die while any
amounts would still be payable to you hereunder, all such amounts shall
be payable in accordance with the terms of this letter agreement to
your estate, but your rights under this letter agreement are otherwise
non-transferable.
12. You agree that, without the prior written consent of the Company, you
will not disclose or use any non-public confidential information of
the Company disclosed to or learned by you during the course of your
employment so long as such information is not publicly known or
available, except for such disclosures as are otherwise required by
law. You further agree that you will not make any statements at any
time that disparage the reputation of the Company or its officers. The
Company, on behalf of itself and its executive officers, agrees that
it will not make any statements at any time that disparage your
reputation.
13. Unless the Company has specifically consented thereto in writing, you
agree not to solicit, induce or knowingly hire, or to cause, or
recommend to, any entity with which you are affiliated to solicit,
induce or hire, or to make any such entity aware of the qualifications
of, any key employee employed (or formerly employed within six months
prior to the date of solicitation, inducement or hiring) by the
Company, during the period beginning on the date hereof and ending six
months from the date the final payment is made to you pursuant to
paragraph 3 of this letter agreement. For purposes of this letter
agreement, a key employee means any officer of the Company and any
other person employed by the Company who was a participant in any stock
option, stock bonus, stock loan, stock purchase or similar stock plan
of the Company during the one year period prior to the date of
solicitation, inducement or hire.
14. At all times, you agree, for so long as this letter agreement is
otherwise confidential, to keep confidential both the fact of and the
terms of this letter agreement, and you agree not to disclose, display,
discuss or make public in any way its terms with anyone except members
of your immediate family and except as may be required to your
certified public accountant, tax preparer, attorney or where compelled
by law. Before disclosing this letter agreement to any person at any
time when this letter agreement is otherwise confidential, you agree to
advise the party to whom disclosure is made that such
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information is confidential and such party is not to the disclose same.
You and the Company will consult and cooperate with each other,
consistent with applicable law, with a view to agreeing in a timely
manner on the contents of any press release or other public
announcement to be made by the Company with respect to this letter
agreement.
15. You acknowledge that the payments and benefits provided under this
Agreement are in consideration for the obligations you have undertaken
in paragraphs 12, 13 and 14 hereof and your execution of the General
Release annexed hereto. You agree that the Company will suffer
irreparable damage if the provisions of any of such paragraphs are
breached and that in such event, and in the event you revoke the
General Release in accordance with the terms thereof, the Company shall
be entitled as a matter of right to terminate all remaining payments
and benefits provided under this Agreement, and you shall have no
further right thereto. Upon demand by the Company, you shall
immediately repay to the Company the gross, pre-tax amount of all
payments made to you hereunder prior to such time. You agree that the
amount of such prior and future payments shall constitute liquidated
damages for the breach of this letter agreement.
16. Should any provision of this letter agreement or of the annexed General
Release be held invalid or illegal, such illegality shall not
invalidate the whole of this letter agreement, or General Release, but
rather such letter agreement and General Release shall be construed as
if it did not contain the illegal part, and the rights and obligations
of the parties shall be construed and enforced accordingly. If any of
the restrictions contained herein shall be deemed to be unenforceable
by reason of the extent, duration or geographical scope thereof, or
otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope or other
provisions hereof, and in its reduced form this letter agreement shall
then be enforceable in the manner contemplated hereby.
17. The payments due to you hereunder shall be subject to reduction to
satisfy all applicable Federal, state and local withholding tax
obligations. The Company makes no representation regarding the
taxation of any payments or benefits to be provided to you under, or
the tax ramifications of any of the matters contemplated by, this
letter agreement. It is your obligation and responsibility to
determine whether any such payment or benefit is includible in gross
income for Federal, state and local income tax purposes.
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January 24, 2000
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18. Reference in this letter agreement to the Company shall include all
subsidiaries and affiliates of the Company and for purposes of this
letter agreement and the General Release, the term "affiliate" shall
be limited to entities that are engaged in the business of insurance
or insurance services and are directly or indirectly controlled by or
under common control with the Company.
19. You will promptly provide the Company with a notice of your acceptance
of other employment and the commencement date thereof.
YOU EXPRESSLY ACKNOWLEDGE, REPRESENT AND WARRANT THAT YOU HAVE READ THIS LETTER
AGREEMENT AND THE GENERAL RELEASE CAREFULLY; THAT YOU FULLY UNDERSTAND THE
TERMS, CONDITIONS AND SIGNIFICANCE OF THIS LETTER AGREEMENT AND THE GENERAL
RELEASE; THAT THE COMPANY HAS ADVISED AND URGED YOU TO CONSULT WITH YOUR
ATTORNEY CONCERNING THIS LETTER AGREEMENT AND THE GENERAL RELEASE; THAT YOU HAVE
BEEN REPRESENTED BY COUNSEL AND HAVE HAD A FULL OPPORTUNITY TO REVIEW THIS
LETTER AGREEMENT AND THE GENERAL RELEASE WITH YOUR ATTORNEY AND HAVE DONE SO;
THAT YOU HAVE HAD AMPLE OPPORTUNITY TO NEGOTIATE THROUGH YOUR ATTORNEY; AND THAT
YOU HAVE EXECUTED THIS LETTER AGREEMENT VOLUNTARILY, KNOWINGLY AND WITH SUCH
ADVICE FROM YOUR ATTORNEY AS YOU HAVE DEEMED APPROPRIATE.
You acknowledge that you have 21 days to review and consider the terms described
above and the financial consequences to you and your family. With the advice of
the Company, you have had a reasonable opportunity to consider advice from your
legal counsel before signing this letter. Fully understanding the above terms,
you are entering into this letter agreement knowingly and voluntarily.
If the foregoing is acceptable to you, please sign, date and return the attached
copy of this letter to me no later than February 14, 2000. Once you have signed
the letter, our agreement will not take effect or be enforceable until seven
days after your signing this letter and you may revoke it at any time prior to
the end of the
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seventh day after your signing by delivering a written revocation to the
undersigned.
Sincerely,
X.X. XXXXXXX CORPORATION
By: ____________________________
Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
AGREED: _______________________________ _______________
Xxxx X. Xxxxxxx Date
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ATTACHMENT 1
GENERAL RELEASE
In consideration of the payments, benefits, agreements, and other
consideration to be provided to Xxxx X. Xxxxxxx by X.X. Xxxxxxx Corporation as
described in the letter agreement between X.X. Xxxxxxx Corporation and Xxxx X.
Xxxxxxx dated January 24, 2000 (the "Agreement") to which this Release is
annexed, Xxxx X. Xxxxxxx for himself and for his heirs, executors,
administrators, and their respective successors and assigns (collectively
"Xxxxxxx") hereby releases and forever discharges X.X. Xxxxxxx Corporation, and
all of its subsidiaries, affiliates, divisions, officers, directors, employees,
agents, successors and assigns (hereinafter collectively referred to as
"Berkley"), and all plan administrators and trustees of employee benefit plans
maintained by Berkley, of and from all or any manner of actions, causes and
causes of actions, suits, debts, obligations, damages, complaints, liabilities,
losses, covenants, contracts, controversies, agreements, promises, variances,
trespasses, judgments and expenses (including attorneys' fees and costs),
executions, claims and demands whatsoever at law or in equity (such actions,
etc., being referred to herein as "Actions"), specifically including by way of
example but not limitation, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1866, the Age Discrimination in Employment Act
(ADEA), the Employee Retirement Income Security Act of 1974, as amended (ERISA),
the Americans with Disabilities Act, any and all
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Connecticut fair employment, employment discrimination and human rights laws,
claims for wrongful discharge, personal injury, defamation, mental anguish,
injury to health and reputation and any and all claims and rights under all
foreign and United States federal, state, local and decisional law and
ordinances, including all those concerning equal employment, which Vollaro ever
had, now has, or which Xxxxxxx hereafter can, shall or may have for, upon or by
reason of any matter, cause or thing whatsoever, arising on or prior to the
effective date hereof, in the course of, or in any way related to, his
employment by or termination of employment from Berkley. Xxxxxxx takes this
action fully aware of his rights under the laws of the United States (and any
state thereof) and voluntarily waives such rights. The provisions of any laws
providing in substance that releases shall not extend to claims which are
unknown or unsuspected at the time, to the person executing such release, are
hereby waived. Xxxxxxx hereby agrees never individually or with any person to
file, commence or aid in any fashion the filing of, any charges, lawsuits or
complaints with any governmental agency or against Berkley or any of the parties
released by him in this General Release with respect to any of the matters
covered by this Release.
Notwithstanding the foregoing, by signing this Release, Xxxxxxx shall
not have relinquished (i) his right to indemnification for acts occurring or
liabilities arising on or prior to March 1, 2000, including any right for
reimbursement of expenses (including, without limitation, attorneys' fees and
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11
costs) from Berkley under charter provision, by law or insurance arrangement or
under applicable law with respect to the conduct of Xxxxxxx, or any claim
asserted against Xxxxxxx, in his capacity as a director, officer or employee of
Berkley or as a trustee of any Berkley employee benefit plan, or as a member of
any Berkley company committee or Berkley employee benefit plan committee, which
right shall be no greater nor less than the indemnification rights of other
Berkley officers and directors, (ii) Xxxxxxx'x right to payments or benefits
under, or to enforce the provisions of, this Release or the Agreement to which
it is annexed or (iii) any rights or claims Xxxxxxx may have under ADEA that
arise after the date on which he executes this Release.
Berkley hereby releases and forever discharges Xxxxxxx from all or any
manner of Actions which Berkley ever had, now has, or which Berkley hereafter
can, shall or may have for, upon or by reason of any activities undertaken
within the scope of Xxxxxxx'x employment with the Company and in compliance with
applicable laws, regulations and written Company policies, on or prior to the
effective date hereof; provided, however, that Berkley shall not thereby release
Berkley's right to enforce the provisions of this Release or the Agreement to
which it is annexed.
XXXXXXX EXPRESSLY ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT HE HAS READ THIS
RELEASE CAREFULLY; THAT HE FULLY UNDERSTANDS THE TERMS, CONDITIONS AND
SIGNIFICANCE OF THIS RELEASE; THAT THE COMPANY HAS ADVISED AND URGED HIM TO
CONSULT WITH HIS ATTORNEY CONCERNING THIS RELEASE; THAT HE HAS BEEN REPRESENTED
BY COUNSEL AND HAS HAD A FULL OPPORTUNITY TO REVIEW THIS RELEASE WITH HIS
ATTORNEY AND HAS DONE SO; THAT HE HAS HAD AMPLE OPPORTUNITY TO NEGOTIATE THROUGH
HIS ATTORNEY; THAT THE PAYMENTS AND BENEFITS THAT ARE TO BE PROVIDED TO HIM
UNDER THE AGREEMENT TO WHICH THIS RELEASE IS ANNEXED ARE IN ADDITION TO ANYTHING
OF VALUE TO WHICH HE IS ALREADY ENTITLED; AND THAT HE HAS EXECUTED THIS RELEASE
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VOLUNTARILY, KNOWINGLY AND WITH SUCH ADVICE FROM HIS ATTORNEY AS HE DEEMED
APPROPRIATE.
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IN WITNESS WHEREOF, Xxxx X. Xxxxxxx and X.X. Xxxxxxx Corporation have
executed this General Release this 24th day of January, 2000, Xxxx X. Xxxxxxx
having had the opportunity to review it with counsel of his choice and having
had the right to consider it for twenty-one (21) days and seven (7) days after
execution to revoke it.
AGREED: ________________________________ ________________
Xxxx X. Xxxxxxx Date
X.X. XXXXXXX CORPORATION
By: _____________________________ ________________
Xxxxxxx X. Xxxxxxx Date
Chairman of the Board and
Chief Executive Officer
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ATTACHMENT 2
Xxxx X. Xxxxxxx
00 Xxx Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
January 24, 2000
Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive officer
X.X. Xxxxxxx Corporation
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Dear Xxxx:
In connection with my resignation as President and Chief Operating Officer of
X.X. Xxxxxxx Corporation (the "Company") this will confirm my irrevocable
resignation, effective March 1, 2000, from the Board of Directors of the
Company, all committees thereof, all boards of directors of the Company's
subsidiaries and affiliates, and all company committees, trusteeships and
employee benefit plan committees on which I am currently serving with respect to
the Company, all of its subsidiaries and affiliates, and their related employee
benefit plans.
Very truly yours,
