Exhibit 10.29
SEPARATION AGREEMENT
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AGREEMENT, dated as of January 23, 2002, between USI Insurance
Services Corp., a Delaware corporation (the "Company") and wholly owned
subsidiary of U.S.I. Holdings Corporation, a Delaware corporation ("Holdings"),
Holdings (the Company and Holdings, collectively the "Companies"), and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ ("▇▇▇▇▇").
W I T N E S S E T H:
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WHEREAS, Mizel has been employed by the Company and is a shareholder
of Holdings; and
WHEREAS, Holdings and the Company, on the one hand, and Mizel, on the
other hand, mutually wish to terminate their employment relationship, and the
parties hereto wish to agree as to certain matters in connection with such
termination and to restate and redefine their obligations to each other; and
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties agree as follows:
1. Separation. Mizel's employment relationship with the Companies and
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service as Chairman and Chief Executive Officer of the Company and Holdings
shall terminate, without cause, by mutual agreement effective as of the close of
business on January 18, 2002 and, by this Agreement, except for restrictive
covenants contained therein, the Employment Agreement effective as of October 1,
1997, as amended, (the "Employment Agreement"), between the Companies and Mizel
shall terminate effective as of the close of business January 18, 2002. Mizel
also hereby resigns from the position of Director of Holdings and from the
positions of officer and director of each direct and indirect subsidiary of
Holdings in which capacity he has heretofore served. As consideration for such
termination and resignations, the Company and Holdings agree, to the following:
(a) Holdings will name Mizel as honorary Chairman Emeritus of U.S.I.
Holdings Corporation. Mizel will continue to hold this non-officer position
at least until December 31, 2002, and thereafter until either party
determines to terminate such designation. Holdings and Mizel shall not be
unreasonable in any such decision to terminate the designation. Mizel shall
provide project or other consulting services to Holdings as reasonably
requested by Holdings' CEO and specifically agreed to by Mizel; provided,
however, that Mizel may, in his sole and absolute discretion, decline to
perform consulting services requested by Holdings. All project or other
consulting services are limited to those expressly authorized and directed
by Holdings CEO in writing.
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(b)(i) The Companies shall pay Mizel an amount equal to $295,000 (less
applicable tax withholdings) payable on or before March 31, 2002.
(ii) The Companies shall pay Mizel his base compensation accrued
through January 18, 2002 (to the extent not previously paid), subject to
applicable withholding, on or before January 31, 2002, and shall also
reimburse Mizel for business expenses actually incurred by him in the
ordinary course of business prior to January 19, 2002. Such reimbursement
shall be made to Mizel promptly following his delivery to the Companies of
customary documentation of the incurrence of such expenses.
(c) The Companies shall pay Mizel at an annual rate of $645,000 per
year for the 36-month period commencing January 19, 2002 and ending January
18, 2005 (the "Payment Period"). Such payments shall be made on a
semimonthly basis in accordance with the Company's regular payment cycle in
as equal amounts as practicable with the first such payment to be January
31, 2002. Payments made shall be subject to applicable tax withholding.
(d) During the Payment Period, the Companies shall (i) pay Mizel for
the cost of an automobile at the rate provided for in his Employment
Agreement, (ii) pay Mizel for the cost of his country club allowance at the
rate provided for in his Employment Agreement, (iii) pay Mizel for the
expenses associated with the maintenance of his current insurance licenses,
and (iv) pay Mizel's medical, dental, vision and life insurance premiums,
up to the same amount of premium that the Company is paying on behalf of
Mizel under the Companies group plans in which he participates on January
18, 2002. Such payments shall be made to Mizel by the Companies in a manner
consistent with past practice.
(e) The Companies shall allow Mizel continued use of his current
office and administrative assistant, ▇▇▇▇▇ ▇▇▇▇▇▇, (so long as she remains
employed) on a transitional basis, for 30 days commencing January 21, 2002.
Thereafter, for a period ending on December 31, 2002, the Companies shall
allow Mizel continued administrative support from ▇▇▇▇▇ ▇▇▇▇▇▇ (so long as
she remains employed) for no more than 5 hours per week. Additionally, on
or before the first day of each month commencing March 2002 and ending
December 2002, the Companies shall pay Mizel $1,000 as a non-accountable
office allowance.
(f) Within 15 days following their receipt of an invoice thereof, the
Companies shall pay, up to a maximum of $7,500, Mizel's legal expenses
associated with the negotiations and execution of this Agreement.
(g) Mizel shall assist Holdings in the transition of his functions and
responsibilities to his successors as reasonably requested by the
Companies.
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(h) Mizel shall cooperate with Holdings with respect to (i) any
lawsuit, arbitration or other proceeding between the Companies or their
subsidiaries and any third party, and shall make himself available at
reasonable times during normal business hours to provide information,
including, without limitation, testimony, in any such proceedings. If in
connection with Mizel's performance of his obligations pursuant to this
Section 1(h), Mizel reasonably determines that it is necessary for him to
be represented by separate counsel, Mizel shall select (subject to
Holdings' approval, which approval shall not be unreasonably withheld),
such counsel at Holdings' sole cost and expense, provided that the fees and
other charges of such counsel are reasonable and customary. In addition,
Holdings agrees promptly to reimburse Mizel for all other reasonable
expenses incurred by Mizel in connection with the performance of his
obligations pursuant to this Section 1(h).
(i) If the Companies fail to pay any amount payable hereunder when
due, and if such failure continues for more than ten days after Mizel gives
the Companies notice of the delinquency, a late charge of 5% of the
delinquent amount shall be imposed thereon and the delinquent amount shall
bear interest from the date of the delinquency at an annual rate of 10%
(but in no event to exceed the maximum lawful rate).
2. Series A Preferred and Incentive Shares. The provisions in the
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Stock Subscription Agreements between Mizel, United States Insurance Services
("USIS"), and Holdings shall continue in full force and effect, except that: (1)
each Purchaser shall suspend his or its Purchase Option in The Event of
Termination By Company Other than for Cause or by Purchaser for Good Reason
until December 31, 2002, it being recognized and acknowledged that, for purposes
of each such Stock Subscription Agreement, the termination of Mizel's employment
shall be treated as having occurred by the Company other than for cause or by
Mizel for good reason; (2) each Purchaser may exercise any purchase option by
written notice to Holdings, given at any time between December 31, 2002 and
January 30, 2003; (3) the closing of any purchase shall occur no later than
March 30, 2003; and (4) the determination of Fair Market Value of the Purchased
Shares shall be made as of the notice date. Holdings shall furnish Mizel,
subject to appropriate confidentiality agreements, with any and all information
a reasonable person would deem material to the exercise decision, including, but
not limited to, status of any negotiations concerning the sale of Holdings or an
IPO. Holdings hereby represents that Mizel's Incentive Shares are fully vested.
Capitalized terms used in this Section 2, not otherwise defined herein, are used
as defined Stock Subscription Agreements.
3. Vesting of SARs. The provisions in the Share Appreciation Right
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Award Agreement, dated November 16, 1999, between Mizel and Holdings shall
continue in full force and effect, except that: (1) all SARs shall be deemed
Qualified SARs on January 23, 2002 and shall be non-cancellable; and (2) the
definition of a Qualification Event shall be amended to delete section (iii) in
its entirety and replace such section as follows: (iii) the exer-
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cise of SARs by any executive officer of the Companies who was a member of the
USI Executive Board; provided, however, that for the purposes of this subsection
(iii), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ will not be deemed a member of the USI Executive Board.
Capitalized terms used in this Section 3, not otherwise defined herein, are used
as defined in the SAR Agreements.
4. Restrictive Covenants. So long as the payments contemplated by this
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Agreement are being made as provided herein, Mizel acknowledges that the
provisions of Sections 6 and 7 of the Employment Agreement ("Restrictive
Covenants") shall remain in full force and effect in accordance with their
terms. Notwithstanding anything to the contrary and without limiting any other
remedy available hereunder, the payments described in Section 1(c) of this
Agreement shall terminate upon a breach by Mizel of the Restrictive Covenants
which shall not have been cured within 45 days after Holdings shall have advised
Mizel in writing of its intention to terminate the payments described in Section
1(c) of this Agreement in accordance with the provisions of this section, which
notice shall describe with reasonable specificity the nature of the alleged
breach.
5. Delivery of Property. The Companies shall allow Mizel to remove
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from its offices any art work and office furniture that (1) the Companies and
Mizel agree belongs to Mizel, or (2) Mizel owns by reference to documentation of
ownership. A tentative and non-exhaustive list of the art work, office
furniture, and other personal property owned by Mizel and located at the offices
of the Company is attached hereto as Exhibit ▇. ▇▇▇▇▇ agrees to discuss in good
faith and agree to an amendment of Exhibit C if its is subsequently demonstrated
by the Company that the Company is the true and lawful owner of any item
referenced on Exhibit ▇. ▇▇▇▇▇ shall contemporaneous with the execution of this
Agreement, provide to Holdings all property of the Companies and their
subsidiaries, including any computerized data and computer software owned or
licensed by the Companies or their subsidiaries, as well as all documents of the
Companies or their subsidiaries, including all copies thereof, in his
possession.
6. No Awareness of Claim and Releases. (a) Mizel represents and
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warrants to the Companies that as of the date hereof and giving effect to the
transactions contemplated by this Agreement, Mizel is not aware of any claims,
demands or causes of action which Mizel has against the Companies. Mizel hereby
agrees to indemnify the Companies for any breach of this representation and
warranty.
(b) The Companies each represent and warrant to Mizel that as of the
date hereof and giving effect to the transactions contemplated by this
Agreement, the Companies are not aware of any claims, demands or causes of
action which the Companies have against Mizel. The Companies hereby agree to
indemnify Mizel for any breach of this representation and warranty.
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(c) Simultaneously with the execution of this Agreement, the Companies
and Mizel will exchange executed Releases in the forms attached hereto as
Exhibits A and B, respectively.
(d) Each of the parties agrees and covenants that it will not file or
cause to be filed any lawsuit, arbitration or other proceeding asserting any
claim released by the release executed by it. In the event a party files any
such lawsuit, arbitration or other proceeding, the party so filing will
indemnify the other party for all costs incurred in defending against such
proceeding, including attorneys fees.
(e) Holdings shall indemnify and hold harmless Mizel if he is made, or
threatened to be made a party to any action, proceeding or investigation,
whether civil, criminal, or administrative, and whether involving an actual or
alleged breach of duty, neglect or error by Mizel, or any other actual or
alleged act or omission of Mizel, by reason of or arising from the fact that
Mizel was an officer or employee of Holdings or any of its direct or indirect
subsidiaries. Mizel shall give prompt notice to Holdings of any such action,
proceeding or investigation. Such indemnification and hold harmless includes a
duty to provide Mizel with competent counsel at the sole expense of Holdings (or
if Mizel reasonably determines that it is necessary for him to be represented by
separate counsel, Mizel shall select (subject to Holdings' approval, which
approval shall not be unreasonably withheld), such counsel at Holdings' sole
cost and expense, provided that the fees and other charges of such counsel are
reasonable and customary) and to pay in full all judgments, fines, amounts paid
in settlement, costs, charges and expenses, including attorneys fees and
including appeals therefrom; provided, however, that no indemnification shall be
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provided to Mizel if a judgment or other final adjudication adverse to Mizel
establishes that (i) his acts or omissions were committed in bad faith or were
the result of active and deliberate dishonesty and profit or other advantage to
which he was not legally entitled. If Holdings fails to provide competent
counsel for Mizel, Mizel shall be entitled to retain counsel of his own choosing
at Holding's expense. Mizel shall be entitled to the costs of any proceeding to
enforce this provision, including reasonably attorneys' fees and expenses.
7. Notices and Payments.
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(a) All communications given under this Agreement shall be in writing
(including by telecopy) and shall be given by hand or Federal Express or similar
overnight courier, mailed by U.S. mail, postage prepaid, or sent by telecopy,
addressed to the party for whom intended, as follows:
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U.S.I. Holdings Corporation,
and/or USI Insurance Services Corp.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. Share
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Share LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Except for payments and benefits that are paid through the
Companies direct deposit payroll system, payments to Mizel pursuant to this
Agreement shall be delivered to him in accordance with this Section 7.
(c) Notices and payments given by hand or by Federal Express or
similar overnight courier (and notices sent by telecopy) shall be deemed to have
been duly given when received. Notices and payments sent by U.S. mail shall be
deemed given as of the third business day following their deposit in the mail.
(d) Each party hereto may change the address of such party for notices
hereunder by notice given in accordance with this Section 7.
8. Statements. Holdings and Mizel agree that in any written or verbal
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public discussions or disclosure by them they shall characterize this Agreement
in a manner consistent with the contents of this Agreement and with the mutually
developed Holdings press release, a copy of which is attached hereto as Exhibit
D. The Holdings press release will be issued on January 23, 2002, unless
Holdings and Mizel mutually agree to a later release date.
9. Non-disparagement. Subject to obligations under applicable laws and
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regulations, neither Mizel nor either of the Companies or their senior officers
or directors, shall publicly make any statements or comments that disparage the
reputation of Mizel, or either of the Companies.
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10. Communications by Mizel. Mizel agrees that he will not at any time
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materially interfere with the Companies' affairs by discussing any matter
(including claims or potential claims against the Companies) concerning the
Companies, their officers or directors, or any of their subsidiaries, with any
of its employees, shareholders, insurance carriers, customers, vendors,
investment bankers, commercial bankers, lawyers, press or strategic partners.
Nothing contained herein, however, shall preclude Mizel from discussing any
matter concerning the Companies, their officers of directors, or any of their
subsidiaries with any governmental regulatory or self-regulatory agency. If
compelled to testify by a validly served subpoena in any legal proceeding or by
regulatory authority, Mizel will testify truthfully as to all matters concerning
his employment at the Companies. Mizel agrees to disclose to Holdings as soon as
reasonably practicable all requests for information, and his anticipated
responses thereto.
11. Entire Agreement. This Agreement sets forth the entire
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understanding of the parties with respect to its subject matter, merges and
supersedes all prior and contemporaneous understandings with respect to its
subject matter and may not be waived or modified, in whole or in part, except by
a writing signed by each of the parties. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance. Failure of any party to enforce any
provision of this Agreement shall not be construed as a waiver of its rights
under such provision. It is specifically recognized and acknowledged that there
is no intent, by this Agreement, to alter or prejudice the rights of either
party to that certain "Management Retention Agreement" made February 13, 2001 by
and between Holdings and Mizel.
12. Full Settlement; Legal Fees. The Companies' obligation to make the
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payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Companies may have against
Mizel or others. In any action or proceeding brought to enforce any provision of
this Agreement, and where any provision hereof or thereof is validly asserted as
a defense, the successful party shall be entitled to recover reasonable
attorney's fees and costs, including without limitation costs of arbitration, in
addition to any other available remedy.
13. Successors and Assigns. This Agreement shall be binding on,
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enforceable against and inure to the benefit of, the parties and their
respective heirs, personal representatives, successors and assigns, and nothing
herein is intended to confer any right, remedy or benefit on any other person;
provided, however, that Mizel's rights hereunder are personal to him and shall
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not be voluntarily or involuntarily assigned or transferred except by will or
operation of law and any attempt to do so shall be void.
14. Governing Law. This Agreement shall in all respects be governed by
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and construed in accordance with the laws of the State of California applicable
to agreements
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made and fully to be performed in such state, without giving effect to conflicts
of law principles.
15. Construction. Headings contained in this Agreement are for
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convenience only and shall not be used in the interpretation of this Agreement.
References to Sections are to the sections of this Agreement.
16. Severability. If any provision of this Agreement is held to be
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invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable. This Agreement has been jointly drafted by the parties,
neither of whom shall be deemed to be its drafter for purpose of any rule of law
which construes a document against the person who drafted it.
17. Arbitration. All controversies which may arise between the parties
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hereto including, but not limited to, those arising out of or relating to this
Agreement shall be determined by binding arbitration applying the laws of the
State of California as set forth in Section 14 above. Any arbitration pursuant
to this Agreement shall be conducted in San Francisco, CA by JAMS Endispute
before a single arbitrator in accordance with the Commercial Arbitration Rules
of the American Arbitration Association as they may be in effect from time to
time. The arbitration shall be final and binding upon all the parties and the
arbitrator's award shall not be required to include factual findings or legal
reasoning. Nothing in this Section 17 will prevent either party from resorting
to judicial proceedings if interim injunctive relief under the laws of the State
of California from a court is necessary to prevent serious and irreparable
injury to one of the parties pending arbitration of the controversy in question,
even if the dispute underlying such request for injunctive relief is arbitrable
under the terms of this Agreement. Each of the parties hereto agrees to submit
to the jurisdiction and venue of the courts of the State of California,
including the federal courts in the State of California, in any action or
proceeding arising out of or related to this Agreement, and hereby agrees to
accept service of any and all writs, processes of summons in connection with any
such action or proceeding. Each party waives any right it may have to transfer
or change the venue of any arbitration or litigation brought in accordance
herewith.
18. Voluntary Execution and Representation by Counsel. Mizel
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acknowledges that he has carefully read this Agreement and understands all of
its terms including the full and final release of claims set forth above. Mizel
further acknowledges that he has voluntarily entered into this Agreement; that
he has not relied upon any representation or statements, written or oral, not
set forth in this Agreement; that the only consideration for signing this
Agreement is as set forth herein; and that he has had this Agreement reviewed by
his attorneys and has received advice from those attorneys with which he is
satisfied.
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19. Effective Date. (a) Although this Agreement is dated as of January
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23, 2002 and has been executed on that day, the parties acknowledge that Mizel
shall have a period of twenty-one (21) days from January 18, 2002 in which he
may consider and revoke this Agreement. Accordingly, the parties acknowledge
that this Agreement shall not become effective unless and until, after the
expiration of twenty-one (21) days after January 18, 2002 Mizel has not revoked
the Agreement. Mizel Acknowledges that this provisions provides him with more
than seven (7) days in which to revoke the Agreement after its execution.
(b) In the event Mizel revokes this Agreement pursuant to Section
19(a) or asserts the release executed by him as contemplated by this Agreement
is invalid on the grounds that his entry into this Agreement was not knowing or
voluntary within the meaning of the older Workers Benefit Protection Act of
1990, Mizel and Holdings agree that this Agreement is void and of no effect.
20. Counterparts. This Agreement may be executed by the parties in
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counterparts, all of which shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
date first set forth above.
U.S.I. HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
USI INSURANCE SERVICES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇.▇▇▇▇▇
STATE OF California, COUNTY OF San Francisco ss.:
On January 23, 2002, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to me
known, who, by me duly sworn, did depose and say that deponent is the Chief
Executive Officer of U.S.I. Holdings Corporation and USI Insurance Services
Corp., the corporations described in, and which executed the foregoing
Agreement, and that deponent signed deponent's name by order of the boards of
directors of the corporations.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇
[GRAPHIC] ----------------------------------
Notary Public
Dated: January 23, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ss.:
On January 23, 2002, before me personally came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to me
known, and known to me to be the individual described in, and who executed the
foregoing Agreement, and duly acknowledged to me that he executed the same.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇
[GRAPHIC] ----------------------------------
Notary Public
Dated: January 23, 2002
EXHIBIT A
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RELEASE
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U.S.I. Holdings Corporation, a corporation organized under the laws of
Delaware, and USI Insurance Services Corp., a corporation organized under the
laws of Delaware, for itself, and for each of its officers and directors,
parents, divisions, subsidiaries, affiliates, insurers, attorneys, and each of
their successors and assigns (all, collectively, "RELEASOR"), for good and
valuable consideration, the receipt of which is hereby acknowledged, releases
and discharges ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and his attorneys, heirs, executors,
administrators, successors and assigns (all, collectively, "RELEASEE"), from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against the RELEASEE, the RELEASOR, and the RELEASOR'S successors and assigns
ever had, now have or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
day of the date of this release; provided, however, that excepted from this
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Release are all claims relating to or arising from the Separation Agreement
dated as of January 23, 2002 (the "Separation Agreement") executed herewith.
The RELEASE contained herein is a full and final release applying to
all obligations, liabilities, actions, and losses, including but not limited to
damages, costs, expenses, and attorneys' fees, that may be incurred by RELEASOR
and arising out of or in any way connected with the employment relationship
between the parties, or the termination thereof. It is the intention of the
RELEASOR in executing this Agreement that the same shall be effective as a bar
to each and every claim, demand, and cause of action by the RELEASOR hereto
based on the parties' employment relationship and separation, and the RELEASOR
knowingly, voluntarily, and expressly waives any and all rights and benefits
otherwise conferred by the provisions of section 1542 of the California Civil
Code which states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE
WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
RELEASOR understands the foregoing statutory language of section 1542
of the California Civil Code and nevertheless elects to and hereby does release
and waive all claims it may have against RELEASEE, whether known or unknown,
contingent or non-contingent, arising from the parties' employment relationship
and separation therefrom. RELEASOR fully understands that if the facts with
respect to this Agreement are hereafter found to be other than or different from
the facts now believed to be true, from whatever cause or for whatever reason,
RELEASOR expressly accepts and assumes the risk of such possible difference in
fact and agrees that this Agreement shall be and remain unaffected,
notwithstanding any such differences.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS HEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officer on the 23rd day of January 2002.
U.S.I. HOLDINGS CORPORATION
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
USI INSURANCE SERVICES CORP.
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
STATE OF California, COUNTY OF San Francisco ss.:
On January 23, 2002, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me
known, who, by me duly sworn, did depose and say that deponent is the Chief
Executive Officer of U.S.I. Holdings Corporation and USI Insurance Services
Corp., the corporations described in, and which executed the foregoing RELEASE,
and that deponent signed deponent's name by order of the boards of directors of
the corporations.
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Notary Public
EXHIBIT B
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RELEASE
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Mizel"), as RELEASOR, for good and valuable
consideration, the receipt of which is hereby acknowledged, releases and
discharges U.S.I. Holdings Corporation, its officers and directors, parents,
divisions, subsidiaries, affiliates, insurers, attorneys, and each of their
successors and assignees (all, collectively, "RELEASEE"), from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law, admiralty or equity, which against the RELEASEE,
the RELEASOR, and RELEASOR'S heirs, executors, administrators, successors and
assigns ever had, now has or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of the date of this release; provided, however, that excepted from
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this Release are all claims relating to or arising from the Separation Agreement
dated as of January 23, 2002 (the "Separation Agreement") executed herewith.
Without in any way limiting the foregoing, RELEASOR specifically
releases and discharges RELEASEE from any claims arising out of or related to
RELEASOR's employment or separation from employment, including, but not limited
to, any claims for salary, bonuses, severance pay, vacation pay, or any benefits
under the Employee Retirement Income Security Act, sexual harassment, or
discrimination based on race, color, national origin, ancestry, religion,
marital status, sex, sexual orientation, citizenship status, pregnancy, leave of
absence, medical condition or disability (as defined by the Americans with
Disabilities Act, or any other state or local law), or any other unlawful
discrimination (including, without limitation, claims under the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act of 1990, Title VII of the Civil Rights Act, as amended, or any
other federal, state, or local law), breach of implied or express contract,
breach of promise, misrepresentation, negligence, fraud, estoppel, defamation,
infliction of emotional distress, loss of consortium, violation of public policy
or wrongful or constructive discharge, and for attorneys fees; provided,
--------
however, that excepted from this Release are all claims relating to or arising
-------
from the Separation Agreement.
RELEASOR agrees that this Release includes a full and final release by
RELEASOR of all unknown claims or damages, as well as a release by RELEASOR of
any and all claims now known or disclosed that arise as a result of any act or
omission occurring before RELEASOR signs this Release. Therefore, RELEASOR
waives any and all rights or benefits under the terms of Section 1542 of the
California Civil Code, which provides as follows: "A general release does not
extend to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
IN WITNESS HEREOF, the RELEASOR has hereunto set RELEASOR'S hand on
the 23rd day of January 2002.
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
State of County of ss.:
---------------- ----------------
On January 23, 2002, before me personally came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and duly acknowledged to me that he executed the same.
----------------------------------
Notary Public
EXHIBIT C
MIZEL PERSONAL PROPERTY
[Excluded]
EXHIBIT D
PRESS RELEASE
Confidential Draft (2:400pm) - For Discussion Purposes Only
Press Contact:
▇▇▇▇▇▇ Newborn II
Senior Vice President
U.S.I. Holdings Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
U.S.I. Holdings Corporation Transitions Leadership
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and COO is Named Chairman and CEO
San Francisco, January 23, 2002 - U.S.I. Holdings Corporation, the sixth largest
insurance brokerage firm in the United States, today announced that its Chairman
and Chief Executive Officer since its founding in 1994, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, is
retiring from USI and will be succeeded by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who has been
President and Chief Operating Officer since July 1998. ▇▇. ▇▇▇▇▇ will become
Chairman Emeritus.
In announcing his retirement from USI ▇▇. ▇▇▇▇▇ said, "I am very proud of
what we've accomplished since the founding of USI. Beginning with the vision of
providing a single distribution point for middle market customer's
insurance-related financial services needs, we have built the sixth largest
brokerage firm in the country in just over seven years. We attribute our success
to our focus on our middle market customers and the acquisition of over 100 of
the finest brokerage and insurance services firms in the business. With our
unwavering focus on the initial vision, USI has established the foundation to
take it to the next level."
"I have known ▇▇▇▇▇ ▇▇▇▇▇▇ since 1988, and he has been positioned to
succeed me since early in his tenure with the firm. ▇▇▇▇▇ will be supported by a
talented management team that has significant depth and years of industry
experience. In transitioning senior leader-
ship responsibility to him, I am confident in his ability to shape and execute
the company's operating and business strategy. I will continue as a shareholder
in the company and will be available to ▇▇▇▇▇ and his team."
▇▇. ▇▇▇▇▇▇ said, "I have valued Barney's leadership and his friendship for
many years and share his pride in all that USI has accomplished under his
leadership. He has delivered on the company's initial goals and objectives.
Barney has also built a great organization full of talented people through his
education, training and communication.
"Our leadership team is committed to continue building on what has been
achieved and will continue the vision and strategy Barney instilled in the
company. We are also grateful that, as Chairman Emeritus, we will be able to
call on his expertise as needed."
▇▇▇▇▇▇ ▇. May, a senior executive at Travelers Life and Annuity Company and
a member of the USI Board of Directors since August 1998, said, "The Board of
Directors joins with company management in thanking Barney for his leadership
since the founding of the company. We are confident that thanks to his
development of a strong management team and relationship with ▇▇▇▇ ▇▇▇▇▇▇ this
will be a smooth transition and the company will continue building its dominant
position in the middle market for insurance-related services."
About U.S.I. Holdings Corporation
USI is a diversified insurance services firm focused on a technology enabled,
fully integrated delivery of general and specialty property and casualty
insurance, financial services such as employee benefits outsourcing, third party
administration, and related consulting. USI was founded in 1994 and according to
Business Insurance, is the sixth largest insurance and financial services broker
in the U.S. USI is headquartered in San Francisco and operates out of 77 offices
in 21 states. For more information about USI, visit ▇▇▇.▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇.
See attached biographies
RELEASE
-------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Mizel"), as RELEASOR, for good and valuable
consideration, the receipt of which is hereby acknowledged, releases and
discharges U.S.I. Holdings Corporation, its officers and directors, parents,
divisions, subsidiaries, affiliates, insurers, attorneys, and each of their
successors and assignees (all, collectively, "RELEASEE"), from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law, admiralty or equity, which against the RELEASEE,
the RELEASOR, and RELEASOR'S heirs, executors, administrators, successors and
assigns ever had, now has or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of the date of this release; provided, however, that excepted from
-------- -------
this Release are all claims relating to or arising from the Separation Agreement
dated as of January 23, 2002 (the "Separation Agreement") executed herewith.
Without in any way limiting the foregoing, RELEASOR specifically
releases and discharges RELEASEE from any claims arising out of or related to
RELEASOR's employment or separation from employment, including, but not limited
to, any claims for salary, bonuses, severance pay, vacation pay, or any benefits
under the Employee Retirement Income Security Act, sexual harassment, or
discrimination based on race, color, national origin, ancestry, religion,
marital status, sex, sexual orientation, citizenship status, pregnancy, leave of
absence, medical condition or disability (as defined by the Americans with
Disabilities Act, or any other state or local law), or any other unlawful
discrimination (including, without limitation, claims under the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act of 1990, Title VII of the Civil Rights Act, as amended, or any
other federal, state, or local law), breach of implied or express contract,
breach of promise, misrepresentation, negligence, fraud, estoppel, defamation,
infliction of emotional distress, loss of consortium, violation of public policy
or wrongful or constructive discharge, and for attorneys' fees; provided,
--------
however, that excepted from this Release are all claims relating to or arising
-------
from the Separation Agreement.
RELEASOR agrees that this Release includes a full and final release by
RELEASOR of all unknown claims or damages, as well as a release by RELEASOR of
any and all claims now known or disclosed that arise as a result of any act or
omission occurring before RELEASOR signs this Release. Therefore, RELEASOR
waives any and all rights or benefits under the terms of Section 1542 of the
California Civil Code, which provides as follows: "A general release does not
extend to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
IN WITNESS HEREOF, the RELEASOR has hereunto set RELEASOR'S hand on
the 23rd day of January 2002.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
State of California County of San Franciseo ss.:
On January 23, 2002, before me personally came ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to me
known, and known to me to be the individual described in, and who executed the
foregoing RELEASE, and duly acknowledged to me that he executed the same.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇
-------------------------
Notary Public
[GRAPHIC]
RELEASE
-------
U.S.I. Holdings Corporation, a corporation organized under the laws of
Delaware, and USI Insurance Services Corp., a corporation organized under the
laws of Delaware, for itself, and for each of its officers and directors,
parents, divisions, subsidiaries, affiliates, insurers, attorneys, and each of
their successors and assigns (all, collectively, "RELEASOR"), for good and
valuable consideration, the receipt of which is hereby acknowledged, releases
and discharges ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and his attorneys, heirs, executors,
administrators, successors and assigns (all, collectively, "RELEASEE"), from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against the RELESEE, the RELEASOR, and the RELEASOR'S successors and assigns
ever had, now have or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
day of the date of this release; provided, however, that excepted from this
-------- -------
Release are all claims relating to or arising from the Separation Agreement
dated as of January 23, 2002 (the "Separation Agreement") executed herewith.
The RELEASE contained herein is a full and final release applying to
all obligations, liabilities, actions, and losses, including but not limited to
damages, costs, expenses, and attorneys' fees, that may be incurred by RELEASOR
and arising out of or in any way connected with the employment relationship
between the parties, or the termination thereof. It is the intention of the
RELEASOR in executing this Agreement that the same shall be effective as a bar
to each and every claim, demand, and cause of action by the RELEASOR hereto
based on the parties' employment relationship and separation, and the RELEASOR
knowingly, voluntarily, and expressly waives any and all rights and benefits
otherwise conferred by the provisions of section 1542 of the California Civil
Code which states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE
WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
RELEASOR understands the foregoing statutory language of section 1542
of the California Civil Code and nevertheless elects to and hereby does release
and waive all claims it may have against RELEASEE, whether known or unknown,
contingent or non-contingent, arising from the parties' employment relationship
and separation therefrom. RELEASOR fully understands that if the facts with
respect to this Agreement are hereafter found to be other than or different from
the facts now believed to be true, from whatever cause or for whatever reason,
RELEASOR expressly accepts and assumes the risk of such possible difference in
fact and agrees that this Agreement shall be and remain unaffected,
notwithstanding any such differences.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS HEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officer on the 23rd day of January 2002.
U.S.I HOLDING CORPORATION
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
USI INSURANCE SERVICES CORP.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
STATE OF California, COUNTY OF San Francisco ss.:
On January 23, 2002, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me
known, who, by me duly sworn, did depose and say that deponent is the Chief
Executive Officer of U.S.I. Holdings Corporation and USI Insurance Services
Corp., the corporations described in, and which executed the foregoing RELEASE,
and that deponent signed deponent's name by order of the boards of directors of
the corporations.
▇▇▇▇▇ ▇. ▇▇▇▇▇-▇▇▇▇▇▇
---------------------
Notary Public
[GRAPHIC]
