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EXHIBIT 10.1
RETIREMENT AGREEMENT
RETIREMENT AGREEMENT (the "Retirement Agreement"), dated as of
May 7, 1999, between Executive Risk Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxx, an individual residing at 00 Xxxx Xxx, Xxxx,
Xxxxxxxxxxx 00000 (the "Executive").
WHEREAS, the Executive is employed as Chairman of the Company;
WHEREAS, effective on the day after the date of the effective
time of the merger (the "Merger") of the Company with Excalibur Acquisition,
Inc. ("MergerSub"), a Delaware corporation which is a wholly-owned subsidiary of
The Chubb Corporation, a New Jersey corporation ("Chubb"), (the "Retirement
Date"), the Executive will retire and his employment with the Company will
terminate;
WHEREAS, the parties wish to provide for their mutual rights
and obligations arising from such retirement;
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and other good and valuable consideration, the
receipt of which are hereby acknowledged, the Company and the Executive hereby
agree as follows:
Section 1. Resignation. By affixing his signature to this
Agreement, Executive confirms his voluntary and irrevocable resignation from his
various positions as executive officer and director of all organizations
identified in Exhibit A attached hereto and incorporated by reference, such
resignation to be effective as of the Retirement Date. Executive acknowledges
that any employment relationship he has had with the Company will cease as of
the Retirement Date and that he shall have no further employment relationship
with the Company.
Section 2. Salary Continuation. Through December 31, 1999, the
Executive shall continue to be entitled to payments in amounts equal to the base
salary payments he would have received at his current rate of base salary had he
remained employed through December 31, 1999, payable in arrears not less
frequently than monthly, in accordance with the normal payroll practices of the
Company. In addition, to the extent that the aggregate gross payments made under
this Section 2 through December 31, 1999 do not equal $122,000, the Executive
shall receive a lump sum cash payment on or about such date equal to such
shortfall.
Section 3. Deemed Retirement. As further described in Sections
4, 5 and 6 below, for purposes of the Executive Risk Inc. Nonqualified Stock
Option Plan (the "Option Plan"), the Executive Risk Inc. Incentive Compensation
Plan (Pool A) (the "ICP") and the Executive Risk Inc. Performance Share Plan
(the "PSP"), the Executive's termination of employment hereunder shall be
treated (a) as a "Retirement" for purposes of the Option Plan and PSP, and (b)
as a "retirement" with age plus full years of employment by the Company
equaling, or exceeding, sixty for purposes of the ICP.
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Section 4. Stock Options. Each of the Executive's outstanding
options to purchase shares of the Company's common stock will be fully vested,
and fully exercisable, immediately upon the effective time of the Merger and
will be deemed to constitute an option to purchase shares of Chubb common stock
pursuant to the terms of the Agreement and Plan of Merger dated as of February
6, 1999 among the Company, MergerSub and Chubb (the "Merger Agreement"). Each of
the Executive's stock options outstanding as of the Retirement Date shall remain
exercisable until the earlier of the third anniversary of the Retirement Date or
the expiration of the term of such option. Except as provided herein, the stock
options held by the Executive shall be governed by the terms of the respective
stock option agreements and stock option plans pursuant to which such options
were granted.
Section 5. Incentive Compensation Plan. The Executive shall be
eligible to receive a pro rata Award for Plan Year 1999, as provided in
Paragraph III(g) of the ICP, at such time as other Participants in the ICP
receive Awards, if any, for that Plan Year, subject to reduction in the
discretion of the Committee as provided in the fourth paragraph of Section
III(e) of the ICP; provided, however, that (i) such discretion shall not be
exercised to reduce any such Award by more than 50% from the amount calculated
pursuant to the terms of the ICP and (ii) the recommendation of the Chairman
shall not be required for the exercise of such discretion. At such times as
other Participants in the Plan receive Awards, if any, with respect to the
Report Year Loss Ratio for Plan Years 1996, 1997, 1998 and 1999, the Executive
shall receive payment with respect to his participation in the ICP for such Plan
Years. All capitalized terms used in this Section 5 shall have the respective
meanings provided for such terms in the ICP. In the event that (i) no Awards are
made under the ICP with respect to Plan Year 1999 and (ii) bonus or incentive
compensation with respect to performance in 1999 is otherwise paid to all the
other individuals who (a) are Participants in the ICP on the date hereof and (b)
are employed by the Company on the first date as of which any portion of such
bonus or incentive compensation becomes payable (the "Covered Persons"), the
Company shall in its discretion determine the amount of a bonus payment to the
Executive with respect to performance during 1999; provided that the minimum
amount of any such bonus shall be $50,000 and the payment of such amount shall
be made in a lump sum on the first date as of which any portion of a bonus or
incentive compensation with respect to performance during 1999 becomes payable
to all the Covered Persons.
Section 6. Performance Share Plan. The number of Performance
Share Units earned by the Executive under the PSP with respect to the 1997-1999
Performance Period shall be determined pursuant to Section 10.1 of the PSP and
the Merger shall constitute a Change in Control for such purposes. The Executive
shall receive distributions on such Performance Share Units at the same time or
times as the other Participants in the PSP receive their distributions, all in
accordance with the terms of the PSP. For purposes of clarity, it is agreed that
the Number of Performance Units earned by the Executive shall not be prorated
based upon the number of months of the Executive's participation during the
1997-1999 Performance Period. All capitalized terms used in this Section 6 shall
have the respective meanings provided for such terms in the PSP.
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Section 7. Medical Benefits. Through December 31, 1999, the
Executive and all of his dependents covered under the Company's medical plan
immediately preceding the Retirement Date, if any, shall be entitled to
continued coverage under the Company's medical plan. The Executive shall
reimburse the Company for part of the cost of providing such benefits through
December 31, 1999, with such reimbursement being equal to the amount the
Executive was contributing immediately prior to the Retirement Date. Such
continuation coverage shall be applied towards satisfaction of the Company's
obligations to the Executive pursuant to Section 4980B of the Internal Revenue
Code ("COBRA").
Section 8. Other Rights and Benefits. Except as specifically
provided herein, this Retirement Agreement shall have no effect on the rights of
the Executive to payments or other benefits due to the Executive pursuant to the
terms of any employee benefit plan, fringe benefit policy, payroll practice or
arrangement of the Company, including, without limitation, rights in respect of
coverage under welfare benefit plans for periods through the Retirement Date,
rights under the Company's Retirement Plan and Benefit Equalization Plan, rights
under the Merger Agreement, rights under deferred compensation arrangements of
the Company, and reimbursement for any reasonable business expenses incurred
through the Retirement Date in accordance with Company policy. Notwithstanding
the foregoing, the Executive shall not be entitled to any payments under any
severance plans, programs or arrangements of the Company (including, without
limitation, any such plans, programs or arrangements established pursuant to the
Merger Agreement). Upon the termination of his employment with the Company, the
Executive shall be under no obligation to seek other employment or to otherwise
mitigate the obligations of the Company hereunder, and there shall be no offset
against amounts or benefits due the Executive hereunder on account of any
remuneration or benefit he may receive in connection with subsequent employment.
Section 9. Conditions of Benefits and Restrictions. The
Company shall provide to the Executive the rights, payments and benefits set
forth herein and shall execute and honor a release of claims and covenant not to
xxx in favor of the Executive (in the form attached hereto as Exhibit B) as
consideration for and contingent upon (i) the Executive's execution,
non-revocation and honoring of a release of claims and covenant not to xxx in
favor of the Company (in the form attached hereto as Exhibit C) and (ii) the
Executive's continued compliance with the restrictive covenants set forth in
Section 10 hereof.
Section 10. Noncompetition; Nondisclosure; Nonsolicitation.
The Executive hereby acknowledges and agrees that from January 1, 1999 he did
not (except for such activities he performed on behalf of the Company) and
through December 31, 2000 he shall not:
(i) engage or participate, directly or indirectly, as
an officer, director, employee, partner or consultant with primary
responsibility for activities in the fields of directors and officers
or errors and omissions liability insurance or reinsurance in the
United States of America (a "Competing Activity");
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(ii) divulge, furnish, or make accessible to anyone
any confidential or secret knowledge or information (x) with respect
to business plans, new products, policy forms, insurance-related
technology or other proprietary information of the Company or any of
its Subsidiaries, or (y) with respect to any development or research
work of the Company or any of its Subsidiaries;
(iii) recruit or solicit any person who has served as
an officer or employee of the Company or any of its Subsidiaries at
any time from February 1999 through December 31, 2000 to join any
other company to engage in a Competing Activity, or solicit or
recruit a substantial number of such employees or officers to work
with any company with whom the Executive is associated;
(iv) engage in or participate in, directly or
indirectly, any business conducted under a name that shall be the
same as or similar to the name of, or any trade name used by, the
Company or any of its Subsidiaries.
The Executive acknowledges that irreparable damage may result
to the Company if the provisions of this Section 10 are not specifically
enforced, and agrees that the Company shall be entitled to any appropriate
legal, equitable or other remedy, including injunctive relief, in respect of any
failure to comply with the provisions of this Section 10.
For purposes of this Section 10, the term "Subsidiary" shall
mean (i) a corporation of which shares of stock having ordinary voting power
(other than stock having such power only by reason of the happening of a
contingency) to elect 50% or more of the board of directors or other managers of
such corporation are at the time owned, directly or indirectly, through one or
more intermediaries, by the Company, or (ii) in the case of unincorporated
entities, any such entity with respect to which the Company has the power,
directly or indirectly, to designate 50% or more of the individuals exercising
functions similar to a board of directors.
For the purposes of this Section 10, "Company" shall also be
deemed to include The Chubb Corporation and its subsidiaries and affiliates (the
"Chubb Companies") with respect to the employees, officers and/or operations of
Executive Risk Inc. or its Subsidiaries that become employed by, are merged
into, or are otherwise assumed by a Chubb Company.
Section 11. Termination. This Retirement Agreement may be
terminated (i) by mutual written agreement of the Executive and the Company or
(ii) by either party if the effective date of the Merger shall not have occurred
by December 31, 1999. If this Retirement Agreement is terminated pursuant to
this Section 11, there shall be no liability or obligation on the part of the
Company or the Executive pursuant hereto.
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Section 12. Miscellaneous.
A. Complete Agreement. This Retirement Agreement,
together with the rights and benefits provided to the Executive as
described in Section 8 hereof, constitutes the entire agreement
between the parties and cancels and supersedes all other agreements
and understandings, whether written or oral, between the parties
which may have related to the subject matter contained in this
Retirement Agreement.
B. Modification; Amendment; Waiver. No modification,
amendment or waiver of any provisions of this Retirement Agreement
shall be effective unless approved in writing by both parties. The
failure at any time to enforce any of the provisions of this
Retirement Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of either party thereafter
to enforce each and every provision hereof in accordance with its
terms.
C. Governing Law; Jurisdiction. This Retirement
Agreement and performance under it, and all proceedings that may
ensue from its breach, shall be construed in accordance with and
under the laws of the State of Connecticut, and the parties submit to
the jurisdiction of the courts of the State of Connecticut for
purposes of any actions or proceedings that may be required to
enforce this Retirement Agreement.
D. Severability. Whenever possible, each provision of
this Retirement Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of
this Retirement Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Retirement Agreement.
E. Assignment. The rights and obligations of the
parties under this Retirement Agreement shall be binding upon and
inure to the benefit of their respective successors, assigns,
executors, administrators and heirs; provided, however, that the
Company may assign any duties under this Retirement Agreement without
the prior written consent of the Executive.
F. Notices. All notices and other communications under
this Retirement Agreement shall be in writing and shall be given in
person or by telefax or first class mail, certified or registered
with return receipt requested, and shall be deemed to have been duly
given when delivered personally or three days after mailing or one
day after transmission of a confirmed telefax, as the case may be, to
the respective persons named below:
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If to the Company: Executive Risk Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx
Chief Executive Officer
Telefax: 000-000-0000
If to the Executive: Xxxxxx X. Xxxxxx
00 Xxxx Xxx
Xxxx, Xxxxxxxxxxx 00000
Telefax: 000-000-0000
IN WITNESS WHEREOF, the parties have executed this Retirement
Agreement as of the day and year first above written.
COMPANY: Executive Risk Inc.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Executive Officer
EXECUTIVE: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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EXHIBIT A
XXXXXX X. XXXXXX
POSITIONS WITH SUBSIDIARIES OF EXECUTIVE RISK INC.
NAME OF SUBSIDIARY DOMICILE XX. XXXXXX' POSITION(S)
------------------ -------- -----------------------
Executive Risk Inc. Subsidiaries
Executive Risk Management Associates Connecticut Chairman
(underwriting and claims agency)
Executive Risk Capital Trust Delaware Administrative Trustee
Executive Re Inc. Delaware Chairman, Director
(middle-level holding company)
Executive Re Inc. Subsidiaries
- Executive Risk Netherlands none
International Holdings BV
(mid-level holding co.)
Executive Risk I.H. BV subsidiary
-Executive Risk N.V. Netherlands Supervisory Director
(Netherlands insurer)
- Executive Risk (Bermuda) Ltd. Bermuda Director
(Bermuda insurer)
- Xxxxxxxx Xxxxx Inc. California Director
(underwriting manager)
Xxxxxxxx Xxxxx Inc. subsidiary
- Xxxxxxxx Xxxxx of Arizona, Inc. Arizona none
- Executive Risk Indemnity Inc. Delaware Co-chairman, Director
(admitted insurance company)
Executive Risk Indemnity Inc. subsidiaries
- Executive Risk Specialty
Insurance Company Connecticut Co-chairman, Director
(surplus lines company)
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- Quadrant Indemnity Company Connecticut Co-chairman, Director
(admitted insurance company)
- Xxxxxxx Services Corporation Connecticut none
- Executive Risk Limited United Kingdom none
ALL SUBSIDIARIES HAVE A PRINCIPAL U.S. MAILING ADDRESS OF:
00 XXXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXXX 00000
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EXHIBIT B
RELEASE OF CLAIMS AND COVENANT NOT TO XXX
This RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed and
delivered by EXECUTIVE RISK INC. (the "Company") to XXXXXX X. XXXXXX (the
"Executive").
In consideration of the agreement by the Executive to enter
into the Retirement Agreement between the Executive and the Company, dated May
7, 1999 (the "Retirement Agreement"), the Company hereby agrees as follows:
The Company and its Subsidiaries release and forever discharge
the Executive from, and covenants not to xxx or proceed against the Executive on
the basis of, any and all past or present causes of action, suits, agreements or
other claims which the Company or any of its Subsidiaries has against the
Executive upon or by reason of any matter, cause or thing whatsoever, including,
but not limited to, any matters arising out of his employment by the Company and
the cessation of said employment. This release shall not, however, constitute a
waiver of any of the Company's rights under the Retirement Agreement. The
Company hereby covenants that neither it nor any of its Subsidiaries has
transferred or assigned to any person or entity any of the claims that are
subject to this release and covenant.
This RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed by
the Company and delivered to the Executive on May 7, 1999.
EXECUTIVE RISK INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Executive Officer
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EXHIBIT C
RELEASE OF CLAIMS AND COVENANT NOT TO XXX
This RELEASE OF CLAIMS AND COVENANT NOT TO XXX (the "Release")
is executed and delivered by XXXXXX X. XXXXXX (the "Executive") to EXECUTIVE
RISK INC. (the "Company").
In consideration of the agreement by the Company to provide
the Executive with the rights, payments and benefits under the Retirement
Agreement between the Executive and the Company dated May 7, 1999 (the
"Retirement Agreement") to which the Executive would not otherwise be entitled,
the Executive hereby agrees as follows:
Section I. Release and Covenant. The Executive, of his own
free will, voluntarily releases and forever discharges the Company, The Chubb
Corporation, their subsidiaries, affiliates, their directors, officers,
employees, agents, stockholders, successors and assigns (both individually and
in their official capacities) from, and covenants not to xxx or proceed against
any of the foregoing on the basis of, any and all past or present causes of
action, suits, agreements or other claims which the Executive, his dependents,
relatives, heirs, executors, administrators, successors and assigns has or have
against any of them upon or by reason of any matter, cause or thing whatsoever,
including, but not limited to, any matters arising out of his employment by the
Company and the cessation of said employment, and including, but not limited to,
any alleged violation of the Civil Rights Acts of 1964 and 1991, the Equal Pay
Act of 1963, the Age Discrimination in Employment Act of 1967, the
Rehabilitation Act of 1973, the Older Workers Benefit Protection Act of 1990,
the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of
1993, and any other federal or state law, regulation or ordinance, or public
policy, contract or tort law having any bearing whatsoever on the terms and
conditions of employment or termination of employment. This Release shall not,
however, constitute a waiver of any of the Executive's rights under the
Retirement Agreement.
Section 2. Due Care. The Executive acknowledges that he has
received a copy of this Release prior to its execution and has been advised
hereby of his opportunity to review and consider this Release for 21 days prior
to its execution. The Executive further acknowledges that he has been advised
hereby to consult with an attorney prior to executing this Release. The
Executive enters into this Release having freely and knowingly elected, after
due consideration, to execute this Release and to fulfill the promises set forth
herein. This Release shall be revocable by the Executive during the 7-day period
following its execution, and shall not become effective or enforceable until the
expiration of such 7-day period. In the event of such a revocation, the
Executive shall not be entitled to the consideration for this Release set forth
above.
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Section 3. Reliance by Executive. The Executive acknowledges
that, in his decision to enter into this Release, he has not relied on any
representations, promises or agreements of any kind, including oral statements
by representatives of the Company, except as set forth in this Release.
This RELEASE OF CLAIMS AND COVENANT NOT TO XXX is executed by
the Executive and delivered to the Company on May 7, 1999.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
