Exhibit 10.5
AGREEMENT AND GENERAL RELEASE
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NYMAGIC, INC., New York Marine And General Insurance Company, Gotham
Insurance Company, Mutual Marine Office, Inc., Mutual Marine Office of the
Midwest, Inc. and Pacific Mutual Marine Office, Inc. (collectively referred to
throughout this Agreement as "Employer") and Xxxxx-Xxxx Xxxxxxx, her heirs,
executors, administrators, successors, and assigns (collectively referred to
throughout this Agreement as "Employee"), agree that:
1. Last Day of Employment. Employee's last day of employment with
Employer is June 7, 2002.
2. Consideration. In consideration for signing this Agreement and
General Release and compliance with the promises made herein, Employer agrees:
a. to pay Employee the equivalent of one year's salary,
$162,500 (One Hundred Sixty Two Thousand Five Hundred Dollars and No Cents),
less lawful deductions, to be paid out by direct deposit over one year in
installments coinciding with usual semi-monthly payroll of Employer, except
that the first portion of the one year salary (for the period from June 8,
2002 through the payroll period immediately preceding expiration of the
revocation period) shall be paid in a lump sum, less lawful deductions, by
direct deposit within ten days after the end of the revocation period;
b. to continue Employee's medical, dental and prescription
insurance for one year, deductions for said benefits to be taken out of
semi-monthly and lump sum installments described in subsection 2(a), above.
Employee's contribution shall be no greater than employee's contribution would
have been if she were still employed by the Employer;
c. to commence the period of Employee's receipt of COBRA on
June 8, 2003, at the end of the salary continuation period at her own expense;
d. to provide Employee with outplacement services with Drake,
Beam and Xxxxx in the Senior Executive Program for the period of six months, to
commence at Employee's option at any time within two months after the end of
the revocation period. After six months, Employer has the right to evaluate
Employee's use of said services, and thereafter, Employer may extend
outplacement services on a month-to-month basis for the period of up to one
year, at the Employer's discretion. If Employee obtains employment at any time
during the one year period, Employee shall be obligated to inform Employer
within five days of accepting an offer of full-time employment and the
outplacement services shall cease upon Employer's receipt of such notice;
e. to provide Employee with additional time to exercise any
Stock Options which vested on or before June 7, 2002, to September 7, 2003 or,
if Employee elects a lump sum payment as provided in paragraph 2(g) herein,
Employee shall have three months from the date she informs Employer of her
election to exercise her vested Stock Options as provided in paragraph
2(g)(3);
f. to pay Employee a one-time lump sum payment of Seventeen
Thousand Five Hundred Dollars ($17,500), less lawful deductions, within ten
days after the end of the revocation period by direct deposit;
g. if Employee obtains employment or decides for any other
reason at any time prior to the cessation of her salary continuation as
provided in paragraph 2(a), Employee may elect a lump sum payment (to be paid
by direct deposit within ten days of the request) of the then remaining salary
continuation as provided in paragraph 2(a). If Employee makes such an
election: (1) Employee's medical, dental and prescription insurance benefits
as provided in paragraph 2(b) shall be discontinued, (2) Employee shall
immediately become eligible for COBRA; and (3) Employee shall have three
months from the date she informs Employer of her election to exercise her
vested Stock Options. No deductions for benefits (pursuant to paragraph 2(b)
above) will be made from the lump sum payment described in this paragraph 2(g)
for any future period for which benefits have been discontinued.
3. No Consideration Absent Execution of this Agreement. Employee
understands and agrees that she would not receive the monies and/or benefits
specified in paragraph "2" above, except for her execution of this Agreement
and General Release and the fulfillment of the promises contained herein.
4. Revocation. Employee may revoke this Agreement and General
Release for a period of seven (7) calendar days following the day she executes
this Agreement and General Release. Any revocation within this period must be
submitted, in writing, to Xxxxx Xxxxxxxxx and state, "I hereby revoke my
acceptance of our Agreement and General Release." The revocation must be
personally delivered to Xxxxx Xxxxxxxxx or her designee, or mailed to Xxxxx
Xxxxxxxxx at Mutual Marine Office, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000 and postmarked within seven (7) calendar days of execution of this
Agreement and General Release. This Agreement and General Release shall not
become effective or enforceable until the revocation period has expired. If
the last day of the revocation period is a Saturday, Sunday, or legal holiday
in the state in which Employee was employed at the time of her last day of
employment, then the revocation period shall not expire until the next
following day which is not a Saturday, Sunday, or legal holiday.
5. General Release of Claims. Employee knowingly and voluntarily
releases and forever discharges Employer, its parent corporation, affiliates,
subsidiaries, divisions, successors and assigns and the current and former
employees, officers, directors and agents thereof (collectively referred to
throughout the remainder of this Agreement as "Employer"), of and from any and
all claims, known and unknown, Employee has or may have against Employer as of
the date of execution of this Agreement and General Release, including, but
not limited to, any alleged violation of:
o Title VII of the Civil Rights Act of 1964, as amended;
o The Civil Rights Act of 1991;
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o Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
o The Employee Retirement Income Security Act of 1974, as amended;
o The Immigration Reform and Control Act, as amended;
o The Americans with Disabilities Act of 1990, as amended;
o The Age Discrimination in Employment Act of 1967, as amended;
o The Workers Adjustment and Retraining Notification Act, as amended;
o The Occupational Safety and Health Act, as amended;
o The New York State Human Rights Act, as amended;
o The New York Executive Law, as amended;
o The New York City Administrative Code, as amended;
o The New York Civil Rights Act, as amended;
o The New York Equal Pay Law, as amended;
o The New York Whistleblower Law, as amended;
o The New York Labor Law, as amended;
o The New York Legal Activities Law, as amended;
o The New York Workers' Compensation Law, as amended;
o The New York occupational safety and health laws, as amended;
o The New York Minimum Wage Law, as amended;
o Any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
o Any public policy, contract, tort, or common law; or
o Any allegation for costs, fees, or other expenses including attorneys'
fees incurred in these matters.
o This release does not cover future claims (if any) for (1) any vested
benefits under Section 502(a)(1)(B) of The Employee Retirement Income
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Security Act of 1974, as amended, to which Employee may be entitled
under the terms of the Money Purchase Plan and Trust of Mutual
Marine Office, Inc. and Related Companies, the Profit Sharing Plan
and Trust of Mutual Marine, Inc. and Related Companies or the Mutual
Marine Office, Inc. 401(k) Plan; (2) any vested benefits to which
Employee may be entitled under the terms of the NYMAGIC, INC. 1991
Stock Option Plan; (3) breach of the terms of this Agreement and
General Release; and (4) indemnification and reasonable defense
costs in accordance with Employer's applicable by-laws if a claim is
made against Employee for the period when she was an officer of
Employer. The parties agree that, notwithstanding anything herein to
the contrary, (1) Employee is not eligible to receive any Employer
contribution under the Money Purchase, Profit Sharing or 401(k) Plan
nor any additional Stock Options under the Stock Option Plan
mentioned above with respect to any plan year ending after June 7,
2002; and (2) this Agreement and General Release bars any such
claim.
6. Affirmations. Employee affirms that she has not filed, caused to
be filed, or presently is a party to any claim, complaint, or action against
Employer in any forum or form. Employee further affirms that she has been paid
and/or has received all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and/or benefits to which she may be entitled and that no other
leave (paid or unpaid), compensation, wages, bonuses, commissions and/or
benefits are due to her, except as provided in this Agreement and General
Release. Employee further affirms that she has no known workplace injuries or
occupational diseases and has been provided and/or has not been denied any
leave requested under the Family and Medical Leave Act. Employee acknowledges
that she is not eligible to hold any position with Employer now or in the
future and, therefore, shall not apply in the future for employment with
Employer.
7. Confidentiality. Employee agrees not to disclose any information
regarding the existence or substance of this Agreement and General Release,
except to her spouse, tax advisor, outplacement advisor and an attorney with
whom Employee chooses to consult regarding her consideration of this Agreement
and General Release or by reason of subpoena or court order by a court of
competent jurisdiction. Employee agrees not to comply with the subpoena or
court order which may elicit information regarding Employer in any proceeding
that relates or could relate to Employer without first telefaxing a copy of
the subpoena or court order to Xxxxx Xxxxxxxxx, Manager of Human Resources for
NYMAGIC at (000) 000-0000, and notifying Xx. Xxxxxxxxx, in writing at her
office, by overnight mail, hand delivery or other means designed to provide
Employer with as much advance notice as possible of: (1) the case name,
jurisdiction and index, docket or other identification number or designation
of the action or proceeding with in which the subpoena or order has been
served; and (2) the date upon which compliance with the subpoena or order has
been requested. Nothing herein is intended to or shall preclude Employee from
filing a complaint and/or charge with any appropriate federal, state, or local
government agency and/or cooperating with said agency in its investigation.
Employee, however, shall not be entitled to receive any relief, recovery, or
monies in connection with any complaint or charge brought against Employer,
without regard as to who brought any said complaint or charge for any claims
released under paragraph 5.
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8. Successor Liability. This Agreement shall be binding upon any
successor Company and any such successor shall be deemed substituted for the
Company under the terms of this Agreement. The term "successor" as used herein
shall indicate any person, firm, corporation, or other business entity which,
by merger, consolidation, purchase or otherwise, on or before June 7, 2003,
acquires all or substantially all the assets or business of the Employer.
9. Lump Sum Payout. In the event that prior to June 7, 2003,
NYMAGIC shall be placed into liquidation or under the supervision of a
government entity, to the extent permitted by law Employee shall be entitled
to receive a lump sum payment (to be paid by direct deposit within ten days of
the request) of any amount then owing from the amount set forth in paragraph
2(a). The provisions in the last two sentences of paragraph 2(g) also shall
then apply.
10. Governing Law and Interpretation. This Agreement and General
Release shall be governed and conformed in accordance with the laws of the
state of New York without regard to its conflict of laws provision. In the
event the Employee or the Employer breaches any provision of this Agreement
and General Release, Employee and Employer affirm that either may institute an
action to specifically enforce any term or terms of this Agreement and General
Release. The prevailing party of such enforcement action shall be entitled to
recover reasonable costs and attorneys' fees. Should any provision of this
Agreement and General Release be declared illegal or unenforceable by any
court of competent jurisdiction and cannot be modified to be enforceable,
excluding the general release language, such provision shall immediately
become null and void, leaving the remainder of this Agreement and General
Release in full force and effect.
11. Nonadmission of Wrongdoing. The parties agree that neither this
Agreement and General Release nor the furnishing of the consideration for this
Release shall be deemed or construed at anytime for any purpose as an
admission by either party of any liability or unlawful conduct of any kind.
12. Amendment. This Agreement and General Release may not be
modified, altered or changed except upon express written consent of both
parties wherein specific reference is made to this Agreement and General
Release.
13. Entire Agreement. This Agreement and General Release sets forth
the entire agreement between the parties hereto, and fully supersedes any
prior agreements or understandings between the parties. Employee acknowledges
that she has not relied on any representations, promises, or agreements of any
kind made to her in connection with her decision to accept this Agreement and
General Release, except for those set forth in this Agreement and General
Release.
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EMPLOYEE HAS BEEN ADVISED THAT SHE HAS UP TO TWENTY-ONE (21)
CALENDAR DAYS TO REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN
ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS
AGREEMENT AND GENERAL RELEASE.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE
TO THIS AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER
THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH "2"
ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO
THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL
CLAIMS SHE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Agreement and General Release as of the date set forth below:
NYMAGIC
------------------------------ By:
Xxxxx-Xxxx Xxxxxxx ----------------------------
Xxxxxx X. Xxxxxxxx
Date:
------------------------- Date:
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