AGREEMENT AND RELEASE
Exhibit
10.34
THIS
AGREEMENT is made on the 31st day of January, 2007, by and among Xxxxxxx XxXxxx
(hereinafter called “Employee”) and PMA Capital Insurance Company and PMA Re
Management Company all former and present parents, direct and indirect
subsidiaries and affiliates of PMA Capital Insurance Company and PMA Re
Management Company and its former and present employees, officers, directors,
shareholders, agents, successors and assigns (hereinafter called
“Employer”).
RECITAL
WHEREAS,
Employer has determined to eliminate Employee’s position; and
WHEREAS,
Employee and Employer have agreed to enter into this Agreement and Release
(“Agreement”) to resolve any and all issues that may exist between them
concerning Employee’s employment and separation from employment.
NOW
THEREFORE, Employer and Employee, for good and valuable consideration, and
intending to be legally bound, agree as follows:
1. Termination
Date.
Employee’s employment with Employer and its affiliates shall terminate effective
at the close of business on January 31, 2007 (“Termination Date”).
2. Severance
Pay.
a) Employer
shall provide severance pay to Employee in an amount equal to the greater of
(i)
four (4) weeks of pay; or (ii) two (2) weeks of pay for each year of service
up
to a maximum of 26 weeks plus two weeks of severance for each year of service
after January 1, 2006 (“Severance Period”) as provided in the PMA Capital
Corporation and PMA Capital Insurance Company Severance Pay Plan (the “Severance
Plan”).
b) Based
on
the foregoing, Employer shall provide severance pay to Employee in the sum
of
$124,384.61 less all applicable withholding taxes and other deductions
(“Severance Pay”). The Severance Pay shall be payable in a lump sum within the
next normal pay period following the Effective Date of this Agreement as
provided in paragraph 21, provided Employee signs and returns this Agreement
on
or before March 17, 2007, and does not revoke the same as provided in paragraph
21. Employee shall also receive an amount equal to Employee’s non-vested account
balance as of January 31, 2007, if any, under the PMA Capital 401 (k) Plan
less
all applicable withholding taxes.
c) If
Employee dies before all amounts due Employee under this paragraph 2 have been
paid to Employee, then Employer will pay any remaining amounts due Employee
to
Employee’s surviving spouse, or if there is no surviving spouse, to Employee’s
estate, in a lump sum within 90 calendar days after the date of
death.
1
3. Benefits.
Except
as otherwise set forth in sub-paragraphs a) through c) below, all of Employee’s
employee benefits, including, but not limited to, health, welfare and disability
benefits, shall terminate as of the Termination Date.
a) Employee’s
Group Term Life Insurance, Dependent Child Life Insurance and Spousal Life
Insurance group coverages will terminate on the Termination Date. Employee
may
convert all or part of these group coverages to non-group coverages provided
that Employee shall be responsible for the payment of all premiums after the
Termination Date.
b) In
the
event Employee elects to continue health insurance coverage through the
Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”), and
returns this executed Agreement, and further does not revoke this Agreement
within the revocation period, as provided under the Severance Plan, Employer
will, during the Severance Period (“Continuation Period”), continue to pay the
same monthly subsidy of the premiums for such insurance continuation as was
being paid by Employer prior to the Termination Date. Thereafter, Employee
must
make timely premium payments under COBRA for such health insurance coverage
in
order to maintain the health insurance at 102% of Employer’s cost of coverage.
Notwithstanding the foregoing, Employer has no obligation to pay the premiums
for such health insurance coverage in the event that Employee is eligible to
receive and/or obtain alternative health insurance coverage after the
Termination Date.
c) The
Continuation Period for payment of health insurance premiums under this
Agreement shall be deemed to run concurrently with the continuation period
federally mandated by COBRA (generally 18 months), or any other legally mandated
federal, state, or local coverage period for benefits provided to terminated
employees under the health care plan. The COBRA continuation period will be
deemed to commence on February 1, 2007, whether or not COBRA coverage is
actually elected at such time or deferred until the expiration of the
Continuation Period. Notwithstanding the foregoing, COBRA coverage will only
be
available if Employee is eligible for COBRA coverage elected in the time and
manner prescribed, and Employee timely remits Employee’s payments of the
premiums, as required, for COBRA coverage.
d) Nothing
in this paragraph 3 will affect the Employee’s vested benefits, if any, under
PMA Capital Corporation’s qualified and non-qualified employee plans; the
existence, amount, and payment of such benefits shall be determined pursuant
to
the applicable provisions of the applicable plans, which are described on the
Summary of Benefits, attached as Exhibit “B.”
4. Vacation
Pay.
Payment
for accrued unused, vacation days will be made as soon as practicable after
the
Termination Date. Employees who participate in the Paid Personal Time program
will be reimbursed for any amounts paid for days not used. Employee agrees
that
the amount of Severance Pay defined in paragraph 2(a) to which the Employee
would be eligible will be reduced by any amounts due from the Employee for
days
used, but not fully paid for, under the Paid Personal Time program.
5. Unemployment
Compensation.
If
Employee elects to file a claim for unemployment compensation benefits and
a
determination is made in Employee’s favor,
2
Employer
will not contest Employee’s eligibility.
Employer will, upon request, confirm the termination of Employee’s
employment.
6. Business
Expenses.
Employer agrees to reimburse Employee for normal, pre-approved, business
expenses incurred prior to the Termination Date; provided that Employee submits
appropriate and complete documentation that is satisfactory to Employer to
support Employee’s claim for such reimbursement and requests such reimbursement
upon acceptance of this Agreement. Employee warrants that Employee has
surrendered any and all credit cards issued to Employee through Employer on
or
prior to the date hereof, and shall not incur any additional expenses on behalf
of Employer nor seek reimbursement therefore after the date of this
Agreement.
7. Referrals
of Employment.
All
referrals for verification of employment should be directed solely to Xxxxxx
X.
XxXxxx, Vice President, PMA Insurance Group. In keeping with Employer policy,
no
details relating to Employee’s past employment with Employer beyond title, dates
of employment and verification of annual salary will be discussed with any
potential employer.
8. Agreements
and Covenants.
Employee agrees that:
a) Employee
has no claim to, nor will Employee seek or receive, any other money or
consideration from Employer or its parent, PMA Capital Corporation, its past
or
present direct or indirect subsidiaries or its related corporations, companies,
or divisions (hereinafter collectively referred to as “Affiliates”) except as
provided in this Agreement.
b) Employee
will return to Employer on or before the Termination Date any company property
including, but not limited to, company-provided automobile, cell telephones,
identification cards, access cards, personal laptop computers, company manuals,
equipment, records and files, including any and all copies of same, as well
as
electronic and paper records whether or not they are stored on the Employer’s
premises.
c) Employee
will not disclose or make known to anyone (other than in the good faith
performance of Employee’s services to Employer or its Affiliates before the
Termination Date) other than employees of Employer or its Affiliates, or use
for
Employee’s benefit, or the benefit of any corporation, firm, entity or person
unrelated to Employer or its Affiliates any knowledge, information or materials
belonging to Employer or its Affiliates about their products, services,
know-how, customers, business plans or financial, marketing, pricing,
compensation and other proprietary matters (“Confidential Information”), whether
or not subject to trademark, copyright, trade secret or other protection, which
was made known to Employee (whether or not with the knowledge and permission
of
Employer or its Affiliates, whether or not developed, devised or otherwise
created in whole or in part by the efforts of Employee and whether or not a
matter of public knowledge unless as a result of authorized disclosure) by
reason of Employee’s employment by Employer or its Affiliates. However, after
such Confidential Information has become public knowledge, Employee shall have
no further obligation under this paragraph regarding that publicly known
Confidential Information so long as Employee was in no manner responsible,
directly or indirectly, for permitting such Confidential Information to become
public knowledge without the consent of Employer or the applicable
Affiliate.
3
d) Employee
will not make any public or private statements or other utterances, written
or
oral, or act in any manner that is intended to, or does in fact disparage or
damage the goodwill of the business of Employer or its Affiliates, or the
business or personal reputation of any of its directors, officers, agents or
employees, clients or suppliers.
e) A
violation on the part of the Employee of the covenants contained in paragraphs
(c) or (d) above will cause irreparable damage to Employer and its Affiliates
such that it is and will be impossible to estimate or determine the damage
that
will be suffered by Employer or its Affiliates in the event of a breach by
the
Employee of such covenants. Therefore, the Employee further agrees that Employer
shall be entitled, as a matter of course, to an injunction out of any court
of
competent jurisdiction, restraining any further violation of such covenant
or
covenants by the Employee. This right to an injunction shall be in addition
to
all other rights and remedies afforded by law and under this
Agreement.
9. Release.
Employee, for him or her self, and Employee’s executors, administrators, heirs
and assigns:
a) For
and
in consideration of the monies and benefits provided to Employee by Employer,
as
more fully described in this Agreement, and for other good and valuable
consideration, Employee hereby fully waives, releases, and forever discharges
Employer, PMA Capital Insurance Company and PMA Re Management Company and each
and all of their past and present subsidiaries, parent and related corporations,
companies and divisions, and their past and present respective officers,
directors, shareholders, trustees, employees, attorneys, agents and affiliates,
and their predecessors, successors and assigns (hereinafter collectively
referred to as “Releasees”) of and from any and all rights, debts, claims,
actions, liabilities, agreements, damages, or causes of action (hereinafter
collectively referred to as “claims”), of whatsoever kind or nature, whether in
law or equity, whether known or unknown, that Employee ever had or now has
in
any capacity, either individually, or as a director, officer, representative,
agent or employee of Releasees against any or all of the Releasees, for, upon,
or by reason of any cause, matter, thing or event whatsoever occurring at any
time up to and including the date Employee signs this Agreement. Employee
acknowledges and understands that the claims and rights being released in this
paragraph include, but are not limited to, all claims and rights arising from
or
in connection with any agreement of any kind Employee may have had with any
of
the Releasees, or in connection with Employee’s employment or termination of
employment, all claims and rights for wrongful discharge, breach of contract,
either express or implied, interference with contract, emotional distress,
back
pay, front pay, benefits, fraud, misrepresentation, defamation, claims and
rights arising under the Civil Rights Acts of 1964 and 1991, as amended, (which
prohibits the discrimination in employment based on race, color, national
origin, religion or sex), the Americans with Disabilities Act (ADA), as amended
(which prohibits discrimination in employment based on disability), the Age
Discrimination in Employment Act (ADEA), as amended (which prohibits age
discrimination in employment), Worker Adjustment and Retraining Notification
Act
(WARN), the National Labor Relations Act, the Fair Labor Standards Act, the
Employee Retirement Income Act of 1974 (ERISA), as amended, the Family and
Medical Leave Act (FMLA), as amended, the Pennsylvania Wage and Hour Laws, the
Pennsylvania Wage Payment and Collection Law, the Pennsylvania Human Relations
Act, the Health Insurance
4
Portability
and Accountability Act (HIPPA), and any
and all other claims or rights whether arising under federal, state, or local
law, rule, regulation, constitution, ordinance or public policy. Employees
agree
that Employee will not initiate any civil complaint or institute any civil
lawsuit, or file any arbitration against Releasees, or any one of them, based
on
the fact or circumstance occurring up to and including the date of the execution
by Employee of this Agreement. This Release does not cover claims relating
to
the validity or enforcement of this Agreement.
b) Employee
hereby agrees to waive any provisions of state or federal law that explicitly
or
implicitly would prevent the application of this Agreement to claims which
Employee does not know of or expect to exist in Employee’s favor at the time of
executing this Agreement which, if known by Employee, would have materially
affected his decision to execute this Agreement. In addition, Employee hereby
agrees to waive any provisions of state or federal law which might require
a
more detailed specification of the claims being released pursuant to the
provisions of this Agreement.
c)
Notwithstanding anything to the contrary set forth herein, Employee does not
hereby release Employer from any obligation to indemnify Employee for
third-party claims to which he may be entitled in the future in accordance
with
Employer’s Bylaws or pursuant to any insurance policies of the Employer covering
directors and officers of the Employer.
10. No
Lawsuits.
Employee understands and acknowledges that Employer’s purpose for entering into
this Agreement is to avoid any civil litigation or filing of arbitration by
Employee. Therefore, in the event the Employee has filed or files any civil
complaint, institutes any civil lawsuit, or initiates or continues any civil
action whatsoever, for a claim that is being released under paragraph 9
(excepting only an action to compel compliance by Employer with this Agreement)
against any of the Releasees, the Employee shall pay back to Employer
Seventy-Five percent (75%) of all monies received or paid out under paragraphs
2
and 3(b), and any other thing of value received under this Agreement to that
date, with the maximum amount of interest allowed by law compounded annually,
and to pay Releasees their costs and attorney’s fees in such action. With
respect to the Employee’s obligations to the Releasees under paragraph 9, the
Releasees shall also have the right of set-off against any obligation to the
Employee whether or not under this Agreement. The
provisions of this paragraph 10 shall be inapplicable in any matters regarding
the ADEA.
11. Cooperation.
Employee agrees to cooperate fully with Employer, its legal counsel and/or
insurance carrier in the defense of any claim, suit, action, charge, complaint
or controversy arising out of the Employee’s employment or area of
responsibility (including depositions, hearings and judicial proceedings, if
necessary); provided that such cooperation does not interfere with the
Employee’s normal work hours with a subsequent employer and the Employer
reimburses Employee for reasonable out-of-pocket travel expenses incurred by
Employee in fulfilling his obligations under this paragraph 11. Such cooperation
includes, but is not limited to, meeting with Employer personnel and/or its
attorneys in order to prepare for any such deposition, hearing or judicial
proceeding. Employee acknowledges that Employee has advised Employer’s legal
counsel completely and candidly of all facts that Employee is personally aware
of that constitutes or might
5
reasonably
constitute violations of Employer’s
ethical standards, legal or regulatory obligations.
12. No
Contract of Employment.
This
Agreement does not create and is not evidence of a contract of employment
between Employee and Employer. Employee understands, as does Employer, that
the
employment relationship has at all times been one of employment-at-will, with
either party having the right to terminate the employment relationship at any
time with or without cause. Such mutual right of termination has been in full
force and effect throughout the entire period of Employee’s employment with
Employer.
13. Reemployment.
If
the
Employee is rehired by the Employer or any of its affiliates prior to the
Employee’s receipt of his/her Severance Pay, all rights to amounts payable under
this Agreement and Release shall cease and this Agreement and Release shall
automatically terminate and be of no force or effect.
14. No
Legal Liability.
Employee agrees that the payments made and other consideration received pursuant
to this Agreement are not to be construed as an admission of legal liability
by
Releasees or any one of them and that no person or entity shall utilize this
Agreement or the consideration received pursuant to this Agreement as evidence
of any admission of liability since Releasees expressly deny liability. Employer
is entering into this Agreement solely for the purpose of effectuating a
mutually satisfactory severance of Employee’s employment.
15. Confidential
Agreement.
Employee agrees that the terms of this Agreement shall remain confidential
and
shall not be disclosed or publicized under any circumstances to any other person
or entity (other than appropriate governmental officials, or Employee’s spouse,
counsel and accountant) unless authorized, in writing, by Employer or as
otherwise ordered by a court of competent jurisdiction or permitted by law.
16. Severability.
Should
any clause of this Agreement be found to be in violation of law, or ineffective
or barred for any reason whatsoever, the remainder of the Agreement shall
continue in full force and effect; provided however, that if any release, waiver
or agreement set forth or referred to in this Agreement, including, but not
limited to, those set forth in paragraphs 8, 9 and 10, is declared to be
invalid, illegal or unenforceable, in whole or in part, Employer shall have
the
right to elect to consider its obligations under this Agreement to be null
and
void as of the date of execution of this Agreement and, in such case, any
payments or benefits that had been afforded under this Agreement shall be
returned to Employer with the maximum amount of interest permitted by law,
compounded annually,
except to the extent inconsistent with the ADEA.
17. Remedies
Cumulative.
The
Employee agrees that the remedies under paragraphs 8, 10 and 16 shall not
constitute or be construed to constitute liquidated damages and shall not in
any
way cancel or impair any right or remedy at law or equity which Employer may
otherwise have.
18. No
Assignment.
The
rights and obligations conferred hereunder shall not be subject to assignment
without the prior consent of both Employee and Employer.
6
19. Exclusive
Agreement.
Employee affirms that the only consideration for the signing of this Agreement
is the terms stated herein and that no other representations, promises or
agreements of any kind have been made to Employee by any person or entity
whatsoever to cause Employee to sign this Agreement. Employee and Employer
affirm that this Agreement sets forth the entire agreement between the parties
with respect to the subject matter contained herein and supersedes all prior
or
contemporaneous agreements or understandings between the parties with respect
to
employment and/or the subject matter contained herein. No alteration or other
modification of this Agreement shall be effective unless made in writing and
signed by both parties.
20. Acknowledgement.
Employee acknowledges that Employee has read this Agreement and that Employer
has recommended and advised Employee to consult with an attorney prior to
executing this Agreement. Employee further acknowledges that Employee has been
given a period of forty-five (45) days within which to consider this Agreement
before executing it, and that if Employee does so before the end of such period,
Employee does so of Employee’s own free will and with the full knowledge that
Employee could have taken the full period. In the event Employee desires to
execute this Agreement prior to the end of the forty-five (45) day period,
Employee shall also execute and provide to the Employer an endorsement as
provided in Exhibit “A”. If Employee does not execute the Agreement on or before
March 17, 2007, the offer by Employer to enter into this Agreement shall
automatically be withdrawn, and this Agreement shall be deemed null and void
without any further action by Employer.
21. Effective
Date.
This
Agreement will not become effective or enforceable until after seven (7) days
after Employee executes it without revocation. Employee may revoke this
Agreement within the seven (7) day period by sending written notice to Employer,
Attention: Xxxxxx X. XxXxxx, Vice President, PMA Insurance Group, but such
notice must be received within that seven (7) day period to be valid. If the
Employee so revokes this Agreement, the offer of the terms contained herein
shall be automatically withdrawn, and this Agreement shall be deemed null and
void without any further action by Employer. If revocation is not received
within the seven (7) day period referred to above, this Agreement will go into
effect on the first business day immediately following the expiration of that
seven (7) day period (“Effective Date”).
22. Affirmation.
Employee affirms that (a) Employee has carefully read the foregoing Agreement,
(b) Employee fully understands the meaning, intent, and consequences of this
document, (c) Employee has signed the Agreement voluntarily, knowingly and
without any force and coercion, and (d) Employee intends to be bound by the
promises contained in this Agreement for the consideration stated in the
Agreement and (e) Employee agrees that the total compensation provided under
this Agreement and Release includes compensation and consideration that is
not
required by the policies and procedures of Employer, its past or present parent,
direct and indirect subsidiaries or affiliates and such compensation and
consideration are not something to which Employee was or is indisputably
entitled, but is solely being provided to Employee in consideration of
Employee’s full, final and complete release of any and all rights and claims
under this Agreement and Release and Employee’s complete and timely performance
of all of the Employee’s obligations that are contained within this Agreement
and Release.
7
23. Withholding
Taxes. All
applicable federal, state and local withholding taxes shall be withheld from
the
payments made to Employee under and in connection with this
Agreement.
24. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, and it shall not be necessary in making
proof
of this Agreement to produce or account for more than one such
counterpart.
25. Successors
and Assigns.
All
covenants and other agreements in this Agreement contained by or on behalf
of
the parties hereto shall bind and inure to the benefit of their respective
successors, heirs and assigns.
26. Governing
Law.
This
Agreement shall be interpreted and enforced pursuant to the internal laws of
the
Commonwealth of Pennsylvania.
27. Waiver.
No term
or provision of this Agreement may be changed, waived, discharged, or terminated
orally, but only by an instrument in writing signed by all parties
hereto.
28. Notices.
All
notices or other communications hereunder shall be in writing and addressed
as
follows:
To
Employer:
PMA
Capital Insurance Company and
PMA
Re
Management Company
000
Xxxxxx Xxxxxxx
X.X.
Xxx
0000
Xxxx
Xxxx, XX 00000
Attention:
Xxxxxx X. XxXxxx
To
Employee:
Xxxxxxx
XxXxxx
000
Xxxxxxxxx Xxxxx
Xxxxx,
XX
00000
or
to
such other addresses or persons as the parties, from time to time, may furnish
one another by notice given in accordance with this paragraph. All notices
or
other communications addressed pursuant to this paragraph 27 and sent: (i)
via
facsimile or personal delivery shall be effective when received; and (ii) via
first-class mail, postage pre-paid or overnight mail shall be effective when
properly deposited.
8
TAKE
THIS
AGREEMENT AND RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS
PROVISIONS BEFORE SIGNING IT: IT INCLUDES A
RELEASE
OF KNOWN AND UNKNOWN CLAIMS.
BY
SIGNING THIS AGREEMENT AND RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT AND RELEASE, UNDERSTAND IT AND ARE VOLUNTARILY ENTERING INTO
IT.
PLEASE
RETAIN A COPY OF THIS AGREEMENT AND RELEASE FOR YOUR
RECORDS.
AGREED
TO AND ACCEPTED BY:
EMPLOYEE
/s/
Xxxxxxx Xx Xxxx
Employee’s
Signature
Xxxxxxx
Xx Xxxx
Employee’s
Name (Print)
February
1, 2007
Date
|
PMA
Re MANAGEMENT COMPANY
By
its: /s/
Xxxxxxx X. Xxxxxxxxxxxx
Officer’s
Signature
Xxxxxxx
X. Xxxxxxxxxxxx
Officer’s
Name (Print)
Sr.
Vice President and CFO
Officer’s
Title
1/31/2007
Date
|
PMA
CAPITAL INSURANCE COMPANY
By
its: /s/
Xxxxxxx X. Xxxxxxxx
Officer’s
Signature
Xxxxxxx
X. Xxxxxxxx
Officer’s
Name (Print)
President
and Chief Executive Officer
Officer’s
Title
1/31/2007
Date
|
9
