exv10w9



 







SEPARATION AGREEMENT AND GENERAL RELEASE




     THIS SEPARATION AGREEMENT AND GENERAL RELEASE (this “Agreement”), dated as of December 31,
2005, is made and entered into by and between TIMOTHY A. BIENEK (“Executive”) and AFFIRMATIVE
INSURANCE HOLDINGS, INC., a Delaware corporation (the “Company”).



RECITALS:




     A. Executive was employed by the Company as its Executive Vice President and Chief Financial
Officer pursuant to the terms of an employment agreement entered into on or before May 27, 2004 and
effective as of July 14, 2004 (the “Employment Agreement”).



     B. Executive is a party to Stock Option Agreements granted under the Company’s 2004 Stock
Incentive Plan (the “2004 Plan”).



     C. Executive irrevocably resigned from all positions as an officer or director of the Company
and all entities affiliated with the Company effective November 30, 2005 (the “Resignation Date”)
but has continued employment with the Company as a non-officer employee since the Resignation Date.



     D. Executive and the Company have reached an agreement regarding the termination of
Executive’s employment with the Company.



     E. Without making any admission of liability whatsoever, it is the desire of Executive and the
Company to settle fully and finally all differences or potential differences between them,
including all differences or potential differences that arise out of or relate to Executive’s
employment or termination of employment with the Company.



STATEMENT OF AGREEMENTS




     NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants and agreements set forth in this Agreement, the sufficiency of which is hereby
acknowledged, and intending to be legally bound by the terms of this Agreement, Executive and the
Company agree as follows:



     1. Termination of Employment and Resignation of Positions. The parties acknowledge
and agree that the Executive has voluntarily and irrevocably resigned from all positions as an
officer or director of the Company and as an officer or director of all entities affiliated with
the Company as of the Resignation Date. The parties acknowledge and agree that the Executive’s
employment in a non-officer and non-director capacity has continued since the Resignation Date but
will terminate on the Effective Date. The parties acknowledge and agree that the Employment
Agreement shall terminate (other than Section 5 thereof) on the Effective Date. Executive agrees
to execute such documents and take such actions as the Company may deem necessary or desirable to
effectuate the foregoing.



     2. Consideration. Executive shall receive, in full settlement of any compensation and
benefits to which he would otherwise be entitled (except as provided herein) under the



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Employment Agreement or under any other compensation or benefits plan, program, policy or
arrangement maintained by the Company in which Employee has at any time been a participant,
including without limitation, accrued vacation and other paid time off:



          2.1 Executive shall be entitled to payment for accrued and unpaid base salary through the
Effective Date, less applicable income and employment tax withholding and benefit plan deductions.
The net amount paid pursuant to this Section 2.1 after applicable deductions and withholding shall
be paid on the earlier of the next regular payroll date of the Company following the Effective Date
or such earlier date as may be required by law.




          2.2 Executive shall be entitled to payment for accrued and unpaid Paid Time Off (“PTO”)
through the Effective Date, less applicable income and employment tax withholding. The net amount
paid pursuant to this Section 2.2 shall be paid on the earlier of the next regular payroll date of
the Company following the Effective Date or such earlier date as may be required by law. Such
amount shall be paid in complete satisfaction of any liability for accrued vacation and other paid
time off.




          2.3 The Company shall pay Executive a cash severance payment of One Million Thirty Thousand
Dollars ($1,030,000.00), less applicable income and employment tax withholdings. Amounts paid
pursuant to this Section 2.3 will be paid as follows: One cash payment in the amount of Two
Hundred Sixteen Thousand Two Hundred Fifty Dollars ($216,250.00), less applicable income and
employment tax withholding, will be paid on the first business day following the Effective Date,
pursuant to Section 14 of this Agreement. One cash payment in the amount of One Hundred Sixteen
Thousand Two Hundred Fifty Dollars ($116,250.00), less applicable income and employment tax
withholding, will be paid on the first business day following six months after the Effective Date.
The remaining Six Hundred Ninety-Seven Thousand Five Hundred Dollars ($697,500.00), less applicable
income and employment tax withholding, will be paid in eighteen (18) equal installments over an
eighteen month period in accordance with regular payroll dates of the Company, with the first
payment made on the earliest payroll date following six months after the Effective Date.




          2.4 Executive agrees that he will submit to the Company, before the Effective Date, a request
for all expenses to which he is entitled to receive reimbursement pursuant to Company policies.
The Company agrees to pay such amounts within 10 days of the date the Executive submits such
requests. Executive agrees that no reimbursable expenses shall be incurred by Executive after the
Effective Date except as specifically directed by and approved in writing by the Chief Executive
Officer.




          2.5 The Company shall pay for Executive’s health benefit coverage under the Company’s group
health plan (medical and dental coverages) for himself, his spouse, and eligible dependants to the
extent available under the terms of the plan pursuant to the healthcare coverage continuation
provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), at
the same coverage level provided immediately prior to the Effective Date, for a period of eighteen
months, subject to Section 14 of this Agreement. The Company shall also pay Executive a lump sum
payment of Six Thousand Five Hundred Dollars ($6,500.00) to compensate Executive for an additional
six months of health benefit coverage payments, less applicable income and employment tax
withholdings, on June 1, 2007, subject to




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Section 14 of this Agreement. All obligations under this Section 2.5 are subject to the
condition that if the Executive becomes reemployed with another employer and is eligible to receive
medical and other welfare benefits under another employer-provided plan at any time during the
pendency of any obligation pursuant to this Section 2.5, the Executive shall immediately notify the
Company. The parties agree that the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable period of eligibility, and
any obligation by the Company pursuant to this Section 2.5 shall be reduced or eliminated as
appropriate.




          2.6 Executive shall be entitled to vested benefits under the Company’s 401(k) plan according
to the terms of such plan and his rights and the Company’s obligations thereunder shall not be
affected by this Agreement.




          2.7 Executive shall be entitled to stock options covering the amount of 19,290 shares granted
under the Company’s 2004 Plan (the “Vested Option”) according to the terms of such plan, vested as
of July 14, 2005, and thus vested as of the date hereof, according to the terms of such plan and
his rights and the Company’s obligations thereunder shall not be affected by this Agreement. All
remaining stock options granted under the 2004 Plan are unvested and hereby cancelled. All
restricted shares of stock granted under the 2004 Plan are forfeited and all claim to them is
released pursuant to Section 6 of this Agreement. Executive agrees to execute such other documents
and take such actions as the Company may deem necessary or desirable to further evidence the
cancellation of the remaining 2004 options and restricted shares.




     3. Non-Admission of Discrimination or Wrongdoing.



          3.1 This Agreement shall not in any way be construed as an admission that the Company or any
individual has any liability to or acted wrongfully in any way with respect to Executive or any
other person. The Company specifically denies that it has any liability to or that it has done any
wrongful or discriminatory acts against Executive or any other person on the part of itself, or its
officers, employees and/or agents.




          3.2 Executive understands and agrees that he has not suffered any discrimination in terms,
conditions or privileges of his employment based on age, race, gender, religious creed, color,
national origin, ancestry, physical disability, mental disability, medication condition, marital
status, sexual orientation and/or sexual or racial harassment. Executive understands and agrees
that he has no claim for employment discrimination under any legal or factual theory.




     4. Separation of Employment. Executive acknowledges that all employment with the
Company shall terminate as of the Effective Date.



     5. Company Property. Executive represents and agrees that on or before the Effective
Date, he will turn over to the Company all equipment, files, memoranda, records, and other
documents, Confidential Information (as defined in Section 9.2 hereof) that is in physical or
electronic form and any other physical or personal property which are the property of the Company
and which he has in his possession, custody or control at the time this Agreement is executed.
Executive will return to the Company any additional company property in his



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possession, including, but not limited to, company files, work product, computer equipment,
computer software, pagers, corporate credit cards, identification cards, manuals, company documents
and company keys (provided that Executive may keep the cell phone that is his personal property).
Executive further agrees to cooperate and work with Company’s General Counsel to ensure his
compliance with this Section 5.



     6. Release. In exchange for the accommodations by the Company provided herein and the
mutual obligations set forth herein, and except for the obligations set forth or referenced herein
(including, without limitation, Executive’s rights related to the Vested Option, Executive’s vested
401(k), Executive’s rights to receive the payments identified in Section 2.3 and 2.5 and
Executive’s rights to indemnification under the Company’s Bylaws, Certificate of Incorporation or
otherwise) (collectively, the “Excluded Claims”), Executive knowingly and voluntarily waives and
releases all rights and claims, known and unknown, which Executive may have against the Company,
and or any of the Company’s parents and/or their respective subsidiaries and related or affiliated
entities or successors, or any of their respective current or former officers, directors, managers,
employees or representatives thereof respectively (collectively, the “Released Parties”) arising
out of or relating to (i) Executive’s employment or termination of employment with the Company,
(ii) the Employment Agreement, (iii) the Company’s 2004 Plan, and (iv) any acts, occurrences or
omissions taking place prior to the date of execution of this Agreement, including any and all
charges, complaints, claims, liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses of any kind, at law, equity or otherwise, arising in tort, contract or otherwise, whether
known or unknown, suspected or unsuspected, which Executive has or may have against them. This
extends to and includes, but is not limited to, claims for employment discrimination, wrongful
termination, constructive termination, violation of public policy, breach of any express or implied
contract, breach of any implied covenant, fraud, intentional or negligent misrepresentation,
emotional distress, or any other claims relating to Executive’s employment or termination of
employment with the Company (other than Excluded Claims). This also includes a release of any
claims (other than Excluded Claims) by Executive under federal, state or local employment laws or
regulations, including, but not limited to: (1) Title VII of the Civil Rights Act of 1964, 42
U.S.C. Section 2000(e), et. seq. (race, color, religion, sex, and national origin discrimination);
(2) the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et. seq. (age discrimination); (3)
Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (race discrimination); (4) the Equal
Pay Act of 1963, 29 U.S.C. § 206 (equal pay); (5) the Fair Labor Standards Act, 29 U.S.C. §§ 201,
et. seq. (wage and hour matters, including overtime pay); (6) COBRA; (7) Executive Order 11141
(age discrimination); (8) Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et. seq.
(disability discrimination); (9) the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§
1001, et. seq. (employment benefits); (10) Title I of the Americans with Disabilities Act
(disability discrimination); (11) the Sarbanes Oxley Act; and (12) any applicable Texas employment
laws. This also includes a release of all claims arising out of or relating to the Company’s 2004
Plan, other than with respect to the Vested Option, including, without limitation, all stock
options in excess of the Vested Option, whether or not such stock options are currently vested, and
whether or not a subsequent determination is made by the Company that a change in control occurred
that resulted in accelerated vesting of any stock options at an earlier date.



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     7. No Lawsuits.



          7.1 Executive promises never to file a lawsuit of any kind with any court or arbitrator
against the Company or any Released Parties, asserting any claims that are released in this
Agreement.




          7.2 Executive represents and agrees that, prior to signing this Agreement, he has not filed or
pursued any complaints, charges or lawsuits of any kind with any court, governmental or
administrative agency or arbitrator against the Company or any Released Parties, asserting any
claims that are released in this Agreement.




     8. Ownership of Claims. Executive represents and agrees that Executive has not
assigned or transferred, or attempted to assign or transfer, to any person or entity, any of the
claims Executive is releasing in this Agreement.



     9. Restrictive Covenants.



          9.1 Compliance with Covenants. Executive agrees to comply at all times after the date
hereof with all provisions of this Section 9 and which include covenants concerning the
non-disclosure of confidential information and other restrictive covenants. Executive acknowledges
and agrees that these provisions shall survive the termination of his employment and the execution
of this Agreement, to the extent specified in such provisions, regardless of the nature of or
reason for his separation and the payments made with regard thereto.




          9.2 Confidential Information. Executive acknowledges and agrees that the Company and
its affiliated entities have, since the inception of his employment and throughout the entire
period thereof, provided him with trade secrets (as defined under Texas law), and Confidential
Information (as defined below). Executive agrees that he will not divulge or disclose to anyone
(other than the Company, its affiliated entities or any persons employed or designated by the
Company) any Confidential Information. Confidential Information shall include this Agreement, all
information of a confidential nature relating to the business of the Company or any of its
subsidiaries or controlled affiliates, including, without limitation, customer lists, contract
terms, marketing plans, business plans, financial data and information, cost information, sales
data, business opportunities (whether for existing, new or developing businesses), pricing
information, pricing strategies and techniques, employee lists, employee personnel information,
salary information, business forms, computer and internet software and files, computer programs,
compilations of information, partners or investors, methods of doing business, research
information, processes, methods, designs, inventions, improvements, discoveries, and other
confidential information that is regularly used in the operating, technology, and business dealings
of the Company and its controlled affiliates. Executive further agrees not to disclose, publish or
make use of any such knowledge or Confidential Information at any time, including in any future
employment, without the consent of the Company. Notwithstanding the foregoing, this Section 9.2
and Section 5(a) of the Employment Agreement will not apply to Confidential Information (i) that
becomes known to persons other than the Company through no fault of Executive (other than persons
subject to a direct or indirect confidentiality obligation to the Company), or (ii) the disclosure
of which is required under law or legal process, provided that Executive gives the Company prompt
notice of such requirement




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of law or legal process and uses reasonable efforts to allow the Company an opportunity to
seek a protective order or other relief limiting or barring such disclosure.




          9.3 Continuing Restrictive Covenants. Executive acknowledges and agrees that the
restrictive covenants set forth in Section 5 of the Employment Agreement shall remain in full force
and effect and specifically includes employment with or providing consulting services for
competitors that include, without limitation, Direct General Corp., First Acceptance Corp., Bristol
West Holdings, Inc., THI Holdings, Inc. and Infinity Property and Casualty Corp. and or any
subsidiary, division, or company that is otherwise controlled by any of these entities. Executive
acknowledges and agrees that Executive shall continue to be bound by the restrictive covenants set
forth in Section 5 of the Employment Agreement. Executive agrees not to judicially challenge the
enforceability of any of the restrictive covenants set forth in Section 5 of the Employment
Agreement, including any judicial challenges to consideration or the reasonableness of the
restrictive covenants. Executive further agrees that if he judicially challenges the
enforceability of any of the restrictive covenants set forth in Section 5 of the Employment
Agreement, including any judicial challenges to consideration or the reasonableness of the
restrictive covenants (including, without limitation, any challenge made in the course of
prosecuting or defending), or if a court determines (in a proceeding to which the Company or a
successor or assign hereunder is party) preliminarily in relation to injunctive relief, or on a
final determination, that any of the restrictive covenants in Section 5 of the Employment Agreement
are unenforceable or overbroad (excluding, for avoidance of doubt, any such determination related
to comparable provisions of other agreements to which Executive is not a party), and if Executive
is or has prior to such determination or judicial challenge directly or indirectly conducted
activities that would constitute a material violation of Section 9 hereof or Section 5 of the
Employment Agreement, as written, Executive will be obligated to pay Company all sums paid pursuant
to Section 2.3 of this Agreement, up to and including the sum of One Million Thirty Thousand
Dollars ($1,030,000.00), representing the total amount of the cash severance payment to be paid to
Executive under Section 2.3 hereof, which will be immediately due and owing to the Company, and the
Company’s obligation to make any remaining payments under this Agreement will immediately
terminate. Such payment shall be in addition to any other remedies available to the Company for
breach of this Agreement by Executive. The amount of any damages incurred by the Company as a
result of breach of this Agreement or Section 5 of the Employment Agreement by Executive will be
reduced by the amount of any payment made by Executive to the Company as provided above.
Notwithstanding anything to the contrary in this Section 9.3, if the Company initiates any
proceeding against Executive for enforcement of Section 5 of the Employment Agreement, Executive
reserves the right defend such proceeding on the basis that his activity does not constitute a
violation of the provision.




          9.4 Enforcement. Executive and the Company acknowledge and agree that any of the
covenants contained in Section 9 hereof and Section 5 of the Employment Agreement may be
specifically enforced through injunctive relief, but such right to injunctive relief shall not
preclude Company from other remedies which may be available to it.




          9.5 Reformation. The Company and Executive agree and stipulate that the agreements
and covenants not to compete and not to solicit contained in Section 5 of the Employment Agreement
are fair and reasonable in light of all of the facts and circumstances of the relationship between
Executive and the Company; however, Executive is aware that in




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certain circumstances courts have refused to enforce certain terms of agreements not to
compete and agreements not to solicit. Therefore, in furtherance of, and not in derogation of the
provisions of Section 5 of the Employment Agreement, Executive agrees that in the event a court
should decline to enforce any provision of Section 5 of the Employment Agreement, that Section 5 of
the Employment Agreement, as the case may be, shall be deemed to be modified or reformed to
restrict his competition with the Company or its affiliated entities to the maximum extent, as to
time, geography and business scope, that the court shall find enforceable; provided, however, in no
event shall the provisions of Section 5 of the Employment Agreement be deemed to be more
restrictive to him than those contained herein or therein.




          9.6 Reliance on Compliance. Executive understands and agrees that the Company shall
have the right to sue him for breach of this Agreement if Executive violates the provisions of
Section 9 hereof or Section 5 of the Employment Agreement, or otherwise fails to comply with this
Agreement. Executive further acknowledges that but for his agreements to comply with his
obligations described in Section 9 hereof and Section 5 of the Employment Agreement and this
Agreement, the Company would not provide him with all or part of the compensation, benefits and
consideration set forth in Section 2.3 of this Agreement.




     10. No Benefits. Executive understands that Executive’s participation in all benefit
plans, programs, policies, insurance plans or other arrangements maintained by the Company or
provided by the Company, if any, will end at the Effective Date, except as provided herein.
Executive also understands that the Company will not pay for any business-related or other charges
incurred by him after the Resignation Date unless such expenses are expressly approved in advance
by the Chief Executive Officer of the Company. Executive further understands that Executive will
cease to accrue PTO as of the Effective Date.



     11. Tax Withholdings and Reporting. All payments and benefits under this Agreement
are gross amounts and will be subject to any required income and employment tax withholding. The
parties agree to act in good faith to cooperate and confer on appropriate and consistent tax
reporting relating to the payments and benefits under this Agreement.



     12. Cooperation. Executive shall reasonably cooperate with the Company and its
subsidiaries in the defense or prosecution of any claims or actions now in existence or that may be
brought in the future against or on behalf of the Company and its subsidiaries that relate to
events or occurrences that transpired while Executive was employed by the Company. Executive
further represents and agrees that he will not furnish information to or cooperate with any
non-governmental entity (other than the Company and its affiliated entities) which is a party to
such claims or actions; provided, however, nothing shall prohibit Executive from responding to the
requirements of law or legal process, provided that Executive gives the Company prompt notice of
such requirement of law or legal process and uses reasonable efforts to allow the Company an
opportunity to seek a protective order or other relief limiting or barring such disclosure.
Employee’s cooperation in connection with such claims or actions shall include, but not be limited
to, being available to meet with counsel to prepare for discovery or trial and to act as a witness
on behalf of the Company at mutually convenient times. Executive represents and agrees that he
will give truthful and accurate testimony in any such proceedings or legal actions. Executive also
shall cooperate fully with the Company and its subsidiaries in connection with any investigation or
review by any federal, state, or local regulatory authority as any such



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investigation or review relates to events or occurrences that transpired while Employee was
employed by the Company. Solely in recognition of the value of his time, if Executive meets with
the Company or its affiliates at the request of the Company pursuant to this Section 12 (and
specifically exempting any consulting work performed pursuant to a separate agreement) at any time
after the Effective Date, the Company shall pay to Executive the sum of One Thousand Dollars
($1,000.00) per day plus documented travel expenses.



     13. Governing Law and Venue. The venue for the litigation of any dispute arising out
of this Agreement shall be a court of competent jurisdiction in Dallas County, Texas. Texas law
shall govern the interpretation and enforcement of this Agreement, notwithstanding the
conflict-of-law principles of such jurisdiction.



     14. Effective Date. Executive is entering into this Agreement freely and voluntarily.
Executive has carefully read and understands all of the provisions of this Agreement. Executive
acknowledges that Executive has been advised to consult legal counsel concerning this Agreement
prior to signing the Agreement, and that Executive has had sufficient opportunity to do so.
Executive understands that Executive may have up to twenty-one (21) days from the date of this
Agreement to consider this Agreement. Executive understands that if Executive signs this
Agreement, Executive will then have seven (7) days to cancel it if Executive so chooses. Executive
may cancel this Agreement by faxing a written notice of cancellation to the General Counsel of
Company, provided, however, that the Executive’s resignation from his positions as an officer and
director of the Company and all subsidiaries and affiliates shall remain in full force and effect.
However, if Executive elects to cancel this Agreement, Executive understands Executive will not be
entitled to any of the benefits, compensation, or other consideration referenced in this Agreement.
Executive realizes this Agreement is not effective or enforceable until the seven-day period
expires without revocation. Executive understands that this Agreement will not become effective
until the eighth day after Executive signs the Agreement without revocation (the “Effective Date”).
If this Agreement does not become effective, the parties acknowledge that the Employment Agreement
remains in full force and effect until terminated in accordance with the provisions thereof.
Executive understands that the Company will have no duty to pay him or provide him with the
compensation and benefits listed in this Agreement until the Effective Date of this Agreement,
including, without limitation, all amounts and benefits paid to or received by Executive under
Sections 2.3 and 2.5 hereof, other than compensation and benefits to which he is otherwise
entitled, such as salary, expense reimbursements, and Company benefit plans. All amounts and
benefits paid to or received by Executive under Sections 2.3 and 2.5 will be made against receipt
of the executed Acknowledgement of Non-Revocation in the form of “Exhibit B” to this Agreement and
faxing same to the Company’s General Counsel. Executive understands that he is not waiving any age
discrimination claim that may arise after the Effective Date. Executive further acknowledges that
he is receiving consideration, that he is not otherwise entitled to, for his agreement herein to
release any age discrimination claim.



     15. Notice. All notices and other communications provided for in this Agreement
(including the Acknowledgement of Non-Revocation) shall be in writing and shall be deemed to have
been duly given upon personal delivery or receipt when sent by fax and shall be addressed as
follows:



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	 	If to the Executive:
	 	Timothy A. Bienek
	 

	 	 	 	5112 Remington Park Drive
	 

	 	 	 	Flower Mound, Texas 75028
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Benjamin D. Nelson
	 

	 	 	 	Hughes & Luce LLP
	 

	 	 	 	1717 Main Street, Suite 2800
	 

	 	 	 	Dallas, Texas 75201
	 

	 	 	 	Fax: 214.939.5849
	 

	 	 	 	Email: bnelson@hughesluce.com
	 
	 	 	 	 
	 

	 	If to the Company:
	 	Affirmative Insurance Holdings, Inc.
	 

	 	 	 	4450 Sojourn Drive, Suite 500
	 

	 	 	 	Addison, Texas, 75001
	 

	 	 	 	Attention: David B. Snyder, General Counsel (fax 972.728.6491)






     16. No Representations. The parties and each of them represent and agree that no
promises, statements or inducements have been made to them that have caused them to sign this
Agreement other than those expressly stated in this Agreement.



     17. Indemnification; Directors and Officer’s Insurance. The Company shall fulfill and
honor in all respects the obligations of the Company pursuant to any indemnification provisions
under the Certificate of Incorporation or Bylaws or otherwise, each as in effect on the date
hereof. To the extent that the Company, in its sole discretion, elects to maintain professional
liability insurance policies from time to time, the Company will not exclude Executive as a covered
person to the extent that such policies cover former directors or officers.



     18. Successors. All of the terms and provisions contained in this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and their respective heirs,
legal representatives, successors and assigns.



     19. Severability. Should any of the provisions in this Agreement be declared or be
determined to be illegal or invalid, all remaining parts, terms or provisions shall be valid, and
the illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement.



     20. Proper Construction.



          20.1 The language of all parts of this Agreement shall in all cases be construed as a whole
according to its fair meaning, and not strictly for or against any of the parties.




          20.2 As used in this Agreement, the term “or” shall be deemed to include the term “and/or” and
the singular or plural number shall be deemed to include the other whenever the context so
indicates or requires.




          20.3 The paragraph headings used in this Agreement are intended solely for convenience of
reference and shall not in any manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provisions hereof.




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     21. Entire Agreement. This Agreement is the entire agreement between Executive and
the Company and fully supersedes any and all prior oral or written agreements or understandings
between the parties pertaining to its subject matter.



     22. Legal and Tax Interpretations. The parties acknowledge that each party to this
Agreement is represented by separate counsel and agree that the Company has made no representation
or warranty and the Company shall have no liability to Executive or any other person concerning the
legal or tax consequences of any provisions of this Agreement. The parties agree that neither party
has offered legal or tax advice to the other party, that neither party has relied on legal or tax
advice from the other party, and that both parties are voluntarily executing this Agreement after
an adequate opportunity to consult with counsel of their choosing regarding its meaning and effect.
The parties agree that no other representations, covenants, undertakings, or other prior or
contemporaneous agreements, oral or written, regarding the legal or tax advice concerning this
Agreement shall be deemed to exist or bind any of the parties hereto.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first above written.



	 	 	 	 	 
	 

	 	Executive	 	 
	 
	 
	 	 	 	 
	 	 	 
	 	 	Timothy A. Bienek
	 
	 	 	 	 
	 

	 	Company	 	 
	 
	 	 	 	 
	 	 	Affirmative Insurance Holdings, Inc.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





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EXHIBIT A




Excerpts from Section 5 of Employment Agreement




5. Restrictive Covenants.




     (a) Confidential Information. During the Term and at all times thereafter, the
Executive agrees that he will not divulge to anyone (other than the Company or any persons employed
or designated by the Company) any knowledge or information of a confidential nature relating to the
business of the Company or any of its subsidiaries or affiliates, including, without limitation,
customer lists, contract terms, financial costs, sales data, or business opportunities whether for
existing, new or developing businesses, and the Executive further agrees not to disclose, publish
or make use of any such knowledge or information without the consent of the Company.



     (b) Non-Compete. Upon voluntary termination of Executive’s employment, upon
termination of Executive’s employment by the Company for Cause, or upon termination of Executive’s
employment without Cause, Executive agrees not to enter into or engage in any phase of the business
conducted by the Company in any state in which the Company is conducting business on the date of
termination of Executive’s employment with the Company, either as an individual for his own
account, as a partner or joint venturer, or as an employee, agent, officer, director, or
substantial shareholder of a corporation or otherwise for a period of two (2) years following the
date of Executive’s termination of his employment with the Company. As of the date of execution of
this Agreement, the business conducted by the Company was defined as owning and operating (i)
insurance companies providing automobile insurance coverage of any type or class, (ii) underwriting
agencies (or managing general agencies) that produce and administer automobile insurance, and (iii)
retail agencies that sell automobile insurance policies. Notwithstanding the foregoing, in the
event Executive’s employment is not terminated for Cause, if Executive reasonably shows that his
proposed employment is not directly competitive with the Company’s business, Executive may enter
into such employment.



     (c) Non-Solicitation. Upon termination or expiration of his employment, whether
voluntary or involuntary, Executive agrees not to directly or indirectly solicit either (i) any
employees of the Company to leave their employment with the Company in favor of employment with any
other entity, or (ii) business from any entity, organization or person which has contracted with
the Company, which has been doing business with the Company, from which the Company was soliciting
business at the time of Executive’s termination, or from which the Executive knew or had reason to
know that the Company was going to solicit business at the time of Executive’s termination, in each
case for a two-year period from the date of Executive’s termination of his employment with the
Company.













 





EXHIBIT B




ACKNOWLEDGEMENT OF NON-REVOCATION AFTER EXPIRATION OF

SEVEN-DAY PERIOD




     I, Timothy Bienek, acknowledge that I executed a SEPARATION AGREEMENT AND GENERAL RELEASE
(“Agreement”) with Affirmative Insurance Holdings, Inc., that I was given a seven-day period
immediately following my execution of that Agreement within which to revoke that Agreement, that
the seven-day period has now expired without any revocation by me, and that the Agreement is now
irrevocable. By executing this Reaffirmation, I affirm that I have not heretofore, or
contemporaneously with the execution of this Reaffirmation, revoked, or attempted to revoke the
Agreement, either by notice to the Company, or otherwise, and that I am now, by virtue of my
execution of this Reaffirmation, fully bound by all of the terms and conditions of the Agreement.



     EXECUTED in Dallas, Texas this ___day of January, 2006.



	 	 	 
	 

	 	 
	 

	 	Timothy A. Bienek