Separation and General Release Agreement
This Separation and General Release Agreement (this “Agreement”) is made as of this 17th day
of October, 2018, by and among Protective Insurance Corporation, an Indiana Corporation, together with its subsidiaries, affiliates, successors, and assignees (the “Company”) and W. Xxxxxxx Xxxxxxxxxx (“Executive,” and together with the Company, the “Parties”).
WHEREAS, Executive has been employed by the Company under an Employment Agreement between the
Company and Executive dated as of August 16, 2018 (the “Employment Agreement”);
WHEREAS, the Parties have agreed that Executive’s employment with the Company will terminate
effective as of October 17, 2018 (the “Separation Date”);
WHEREAS, the Parties desire to enter into this Agreement to set forth the definitive rights and
obligations of the Parties upon termination of the employment relationship.
NOW, THEREFORE, in consideration of the mutual covenants, commitments and agreements contained
herein, and for other good and valuable consideration the receipt and sufficiency of which the Parties hereby acknowledge, the Parties intending to be legally bound agree as follows:
- 1 -
|
1)
|
Definitions. Capitalized terms that are used but not defined in this Agreement shall have the meanings ascribed to such terms in the
Employment Agreement.
|
|
3)
|
Consideration. The Company hereby waives any right it may otherwise have to recoup a pro-rata portion of the Retention Bonus. The Company
acknowledges its continuing obligation to provide Executive with the benefits described in Section 8(e) of the Employment Agreement that are payable upon a resignation without Good Reason.
|
|
4)
|
|
a)
|
General Release.
Executive, for and on behalf of himself and each of his heirs, executors, administrators, personal representatives, successors and assigns, to the maximum extent permitted by law, hereby acknowledges full and complete satisfaction of and
ABSOLUTELY AND IRREVOCABLY AND UNCONDITIONALLY FULLY AND FOREVER RELEASES, ACQUITS AND DISCHARGES Protective Insurance Corporation together with its subsidiaries, parents, affiliates, owners and shareholders, including but not limited to
each of such entities’ past and present direct and indirect shareholders, directors, members, partners, officers, employees, attorneys, agents and representatives, and their respective heirs, executors, administrators, personal
representatives, successors and assigns (collectively, the “Released Parties”), from any and all claims, demands, suits, causes of action,
liabilities, obligations, judgments, orders, debts, liens, contracts, agreements, covenants and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, concealed or hidden, vested or contingent, in
law or equity, existing by statute, common law, contract or otherwise, which have existed, may exist or do exist, through and including the execution and delivery by Executive of this Agreement (but not including Executive’s or the
Company’s performance under this Agreement) (“Claims”), including, without limitation, any of the foregoing arising out of or in any way
related to or based upon:
|
|
(1)
|
Executive’s application for and employment with the Company, his being an officer or employee of the Company, or the
termination of such employment;
|
|
(2)
|
any and all claims in tort or contract, and any and all claims alleging breach of an express or implied, or oral or
written, contract, policy manual or employee handbook;
|
|
(3)
|
any alleged misrepresentation, defamation, interference with contract, intentional or negligent infliction of emotional
distress, sexual harassment, negligence or wrongful discharge; or
|
|
(4)
|
any federal, state or local law, statute, ordinance or regulation, including but not limited to all labor and employment
discrimination laws, and including specifically the Age Discrimination in Employment Act of 1987, as amended by the Older Workers Benefit Protection Act and otherwise (the “ADEA”).
|
|
b)
|
Acknowledgment of Waiver;
Disclaimer of Benefits. Executive acknowledges and agrees that he is waiving all rights to xxx or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever concerning any Claims,
including, without limitation, reinstatement, back pay, front pay, attorneys’ fees and any form of injunctive relief. Notwithstanding the foregoing, Executive further acknowledges that he is not waiving and is not being required to waive
(i) any rights that are provided under (or preserved by) this Agreement, or (ii) any right that cannot be waived by law, including the right to file a charge or participate in an administrative investigation or proceeding of the Equal
Employment Opportunity Commission or any other government agency prohibiting waiver of such right; provided, however, that
Executive hereby disclaims and waives any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation, excepting only any benefit or remedy to which Executive is or becomes entitled
pursuant to Section 922 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
|
|
c)
|
Effect of Release and Waiver.
Executive understands and intends that this Section 5 constitutes a general release of all claims except as otherwise explicitly provided
in this Agreement, and that no reference herein to a specific form of claim, statute or type of relief is intended to limit the scope of such general release and waiver.
|
|
d)
|
Waiver of Unknown Claims.
Executive expressly waives all rights afforded by any statute which limits the effect of a release with respect to unknown claims. Executive understands the significance of his release of unknown claims and his waiver of statutory
protection against a release of unknown claims.
|
|
6)
|
Executive’s
Representations and Covenants Regarding Actions. Executive represents, warrants and covenants to each of the Released Parties that at no time prior to or contemporaneous with his execution of this Agreement has he knowingly engaged in
any wrongful conduct against, on behalf of or as the representative or agent of the Company. Executive further represents, warrants and covenants to each of the Released Parties that at no time prior to or contemporaneous with his
execution of this Agreement has he filed or caused or knowingly permitted the filing or maintenance, in any state, federal or
foreign court, or before any local, state, federal or foreign administrative agency or other tribunal, any Claim, known or unknown, suspected or unsuspected, which he may now have or has ever had against the Released Parties which is based in whole or in part on any matter referred to in Section 5 above. Executive hereby grants the Company his perpetual and irrevocable power of attorney with full right, power and authority to take all actions necessary to dismiss or discharge any
such Claim. Executive further covenants and agrees that he will not encourage any person or entity, including but not limited
to any current or former employee, officer, director or stockholder of the Company, to institute any Claim against the Released Parties or any of them.
|
|
7)
|
No Conflict of
Interest. Executive hereby covenants and agrees that he will not,
directly or indirectly, incur any obligation or commitment, or enter into any contract, agreement or understanding, whether express or implied, and whether written or oral, which would be in conflict with his obligations, covenants or
agreements hereunder or that could cause any of his representations or warranties herein to be untrue or inaccurate.
|
|
8)
|
Remedies.
Executive acknowledges and affirms that in the event of any breach by Executive of any of his covenants, agreements or obligations hereunder, monetary damages would be inadequate to compensate the Released Parties or any of them.
Accordingly, in addition to other remedies which may be available to the Released Parties hereunder or otherwise at law or in equity, any Released Party will be entitled to specifically enforce such covenants, obligations and restrictions
through injunctive and/or equitable relief, in each case without the posting of any bond or other security with respect thereto. Should any provision of this Agreement be adjudged to any extent invalid by any court or tribunal of
competent jurisdiction, each provision will be deemed modified to the minimum extent necessary to render it enforceable.
|
|
9)
|
Acknowledgment
of Voluntary Agreement; ADEA Compliance. Executive acknowledges that he has entered into this Agreement freely and without coercion, that he has been advised by the Company to consult with counsel of his choice, that he
has had adequate opportunity to so consult, and that he has been given all time periods required by law to consider this Agreement, including but not limited to the 21-day period required by the ADEA (the “Consideration Period”). Executive understands that he may execute this Agreement less than 21 days from its receipt from the Company, but agrees that such execution
will represent his knowing waiver of such Consideration Period. Executive further acknowledges that within the 7-day period following his execution of this Agreement (the “Revocation Period”), he will have the unilateral right to revoke this Agreement, and that the Company’s obligations hereunder will become effective only upon the expiration of the Revocation
Period without Executive’s revocation hereof. In order to be effective, notice of Executive’s revocation of this Agreement must be received by the Company in writing on or before the last day of the Revocation Period.
|
|
10)
|
Incorporation of
Employment Agreement. The following provisions of the Employment Agreement shall be deemed to be incorporated into this Agreement as if set forth verbatim into this Agreement: Section 8(g) (relating to no mitigation or
offset); Section 10 (relating to indemnification and liability insurance); Section 11 (relating to restrictive covenants); Section 12 (relating to assignments); Section 13 (relating to representations); Section 14 (relating to resolution
of disputes); Section 15 (relating to certain tax matters); Section 17(c) (relating to inconsistencies); Section 17(e) (relating to beneficiaries); Section 17(h) (relating to withholding taxes); and Section 17(i) (relating to
cooperation).
|
|
11)
|
Complete
Agreement. This Agreement constitutes the complete and entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes in its entirety any and all prior understandings,
commitments, obligations and/or agreements, whether written or oral, with respect thereto, except as expressly provided herein.
|
|
12)
|
No Strict
Construction. The language used in this Agreement will be deemed to be the language mutually chosen by the Parties to reflect their mutual intent, and no doctrine of strict construction will be applied against any Party.
|
|
13)
|
No Admission of
Liability. Nothing herein will be deemed or construed to represent an admission by the Company or the Released Parties of any violation of law, breach of contract, or other wrongdoing of any kind whatsoever.
|
|
14)
|
Third Party
Beneficiaries. The Released Parties are intended third-party beneficiaries of this Agreement, and this Agreement may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such
Released Parties hereunder. Except and to the extent set forth in the preceding sentence (or in Section 10), this Agreement is not intended for the benefit of any person other than the Parties, and no such other person will be deemed to
be a third-party beneficiary hereof. Without limiting the generality of the foregoing, it is not the intention of the Company to establish any policy, procedure, course of dealing or plan of general application for the benefit of or
otherwise in respect of any other employee, officer, director or stockholder, irrespective of any similarity between any contract, agreement, commitment or understanding between the Company and such other employee, officer, director or
stockholder, on the one hand, and any contract, agreement, commitment or understanding between the Company and Executive, on the other hand, and irrespective of any similarity in facts or circumstances involving such other employee,
officer, director or stockholder, on the one hand, and Executive, on the other hand.
|
|
15)
|
Notices. All notices, consents, waivers and other communications required or permitted by this Agreement will be in writing and will be
deemed given to a Party when: (a) delivered to the appropriate address by hand or overnight delivery; (b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment; or (c) three (3) days following mailing
by certified or registered mail, postage prepaid and return receipt requested, in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the Party (by name or title) designated below (or
to such other address, facsimile number, e-mail address or person as a Party may hereafter designate by written notice to the other Parties):
|
If to the Company:
Protective Insurance Corporation
000 Xxxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
T: x0 000-000-0000
Attention: General Counsel
000 Xxxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
T: x0 000-000-0000
Attention: General Counsel
If to Executive:
W. Xxxxxxx Xxxxxxxxxx
00000 Xxxxxx Xxxxx
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
|
16)
|
Governing Law.
All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement will be governed by, and construed in accordance with, the laws of the State of Indiana, without giving effect to any choice
of law or conflict of law rules or provisions that would cause the application hereto of the laws of any jurisdiction other than the State of Indiana. In furtherance of the foregoing, the internal law of the State of Indiana will control
the interpretation and construction of this Agreement, even though under any other jurisdiction’s choice of law or conflict of law analysis the substantive law of some other jurisdiction may ordinarily apply.
|
|
17)
|
Severability.
The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will otherwise remain in full force and effect.
|
|
18)
|
Counterparts.
This Agreement may be executed in separate counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement. Signatures delivered by facsimile (including, without
limitation, by “pdf”) shall be effective for all purposes.
|
|
19)
|
Amendments and
Waivers. Except with respect to any non-competition or similar post-employment restrictive covenants, which will be subject to modification by a court of competent jurisdiction pursuant to their express terms (as may be
modified herein), no amendment to or waiver of this Agreement or any of its terms will be binding upon any Party unless consented to in writing by such Party.
|
|
20)
|
- 2 -
IN WITNESS WHEREOF, the Parties have executed this Separation and General Release Agreement
effective as of the date of the first signature affixed below or as otherwise provided in this Agreement.
READ
CAREFULLY BEFORE SIGNING
I have read this Separation and General Release Agreement and have had the opportunity to consult legal counsel
prior to my signing of this Agreement. I understand that by executing this Agreement I will relinquish any right or demand I may have against the Released Parties or any of them.
| DATED:_________________ |
By:_____________________________
W. Xxxxxxx Xxxxxxxxxx |
| DATED:_________________ |
PROTECTIVE INSURANCE CORPORATION
|
By: ____________________________
Name:
Title:
Name:
Title:
