EXHIBIT 10.33
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (this "Agreement") is entered into
to be effective as of May 8, 2003 (the "Effective Date") by and among Xxxxxxx
Xxxxxxxx ("Employee" or "you") and GAINSCO, INC., a Texas corporation
("GAINSCO"), National Specialty Lines, Inc., a Florida corporation ("NSL" or the
"Company"), Lalande Financial Group, Inc., a Florida corporation ("Lalande"),
DLT Insurance Adjustors, Inc., a Florida corporation ("DLT"), and MGA Insurance
Company, Inc., a Texas corporation ("MGA"). GAINSCO, NSL, Lalande, DLT and MGA
are sometimes referred to collectively as the "GAINSCO Companies." Employee and
the GAINSCO Companies are sometimes referred to collectively as the "Parties".
1. This Agreement shall become effective and enforceable on the Effective
Date and shall continue in effect through March 31, 2005 (the
"Expiration Date"); provided, however, that commencing on March 31,
2005 and each March 31 thereafter, the Expiration Date shall
automatically be extended for one additional year unless, not later
than the June 30 immediately preceding such March 31, any of the
GAINSCO Companies has given notice that it does not wish to extend this
Agreement and, provided, further, in no event shall the term of this
Agreement extend beyond the date Employee attains sixty-five years of
age. A nonrenewal notice given by any of the GAINSCO Companies shall
terminate the obligations of all of the GAINSCO Companies under this
Agreement effective as of the Expiration Date, as such date may be
extended per this a agreement.
2. The Parties agree that this Agreement supercedes and replaces any and
all prior agreements, whether verbal or in writing, between Employee,
on the one hand, and the GAINSCO Companies or their affiliates, or any
of them, on the other hand, including without limitation the Employment
Agreement among GAINSCO, NSL and Employee, dated October 23, 1998, as
such agreement may have been amended or supplemented (hereinafter
referred to as the "Employment Agreement") and the Stock Purchase
Agreement among Employee, GAINSCO, NSL and Lalande dated August 17,
1998, as such agreement may have been amended or supplemented
(hereinafter referred to as the "Stock Purchase Agreement").
Accordingly, Employee hereby acknowledges and agrees that he has no
claims or rights under the Employment Agreement or the Stock Purchase
Agreement. The Parties further understand and agree that Employee's
employment with NSL (or any of the GAINSCO Companies) shall be
"at-will" following the Effective Date of this Agreement and that
either Employee or NSL may terminate the employment relationship at
anytime for any reason not prohibited by law.
3. Subject to the provisions and during the term of this Agreement, the
Company will pay Employee, but not in lieu of any other severance
compensation, if any, that may be offered to Employee pursuant to any
standard Company severance policy, a total payment equal to one year's
base salary at Employee's compensation rate as of the date (the
"Termination Date")
1
that Employee's employment with the Company ends, less deductions for
federal payroll taxes and benefits in accordance with applicable law
and Company policy (the "Executive Severance Payment"). Employee shall
be eligible to receive the Executive Severance Payment following the
end of his employment with the Company, ONLY if:
a. Prior to the Expiration Date, Employee's employment has not
been terminated by death, disability or retirement; AND
b. Prior to the Expiration Date, Employee does not terminate his
employment with the Company without "Good Reason" as defined
in Section 4; AND
c. Prior to the Expiration Date, Employee has not been terminated
for "Cause" as defined in Section 5; AND
d. Employee executes, and does not revoke, a Separation and
Release Agreement in the form attached hereto as Attachment 1
after the end of his employment with the Company; AND
e. In the event that the Termination Date occurs within five (5)
days prior to or within thirty (30) days following a CIC Date
(defined below), then not less than (30) days and not more
than sixty (60) days following the Termination Date, Employee
provides GAINSCO with a good faith written certification that
Employee has not received an offer of long-term employment or
a long-term consulting relationship, or some combination
thereof, from any Acquiring Affiliated Party (defined below)
pursuant to which Employee would (i) commence the employment
or consulting relationship within (30) days following the
Termination Date and (ii) be entitled to a Pay Package (as
defined below), and an executive severance agreement in place
immediately prior to the Termination Date. For purposes of
this Agreement, any employment or consulting relationship
shall be deemed "long-term" unless it is governed by a written
instrument that provides that the relationship is expected to
continue less than three (3) months.
If Employee is eligible, the Company shall mail, in accordance with the
procedures set forth in Section 15 of this Agreement, the Executive
Severance Payment to Employee within fifteen business days following
the later to occur of (i) the Employee's execution of the Separation
and Release Agreement attached hereto as Attachment 1, provided that
the Separation and Release Agreement has not been revoked and (ii) the
expiration of forty-five (45) days after the Termination Date. Under no
circumstances shall Employee be eligible to receive both an Executive
Severance Payment and a Change in Control Payment (defined below).
2
4. For purposes of this Agreement, "Good Reason" shall mean the occurrence
of any of the following without your consent and the continuance
thereof for thirty (30) days after receipt by the Company of written
notice from you specifying the facts establishing the occurrence:
a. the assignment to you of a job title that is inconsistent with
that of an officer of any of the GAINSCO Companies;
b. a material reduction by the Company in your Pay Package as in
effect immediately prior to the execution of this Agreement;
c. the relocation of the your principal place of work to a
location that is outside of both the Miami-Dade and Broward
Counties, coupled with the failure by the Company to reimburse
you for reasonable relocation expenses; or
d. the failure by the GAINSCO Companies to pay to you any portion
of your current compensation after the same shall have become
due and payable.
5. For purposes of this Agreement, termination by GAINSCO of your
employment for "Cause" shall mean termination upon:
a. the failure by you to perform your assigned duties with any
GAINSCO Company, other than any such failure resulting from
your incapacity due to physical or mental illness or any such
actual or anticipated failure after you have given notice to
the Company that you are entitled to terminate your employment
for Good Reason pursuant to Section 4;
b. your malfeasance, gross negligence or recklessness in the
performance of your duties or responsibilities;
c. the engaging by you in conduct which is either intentionally,
or demonstrably and materially, injurious to any GAINSCO
Company, monetarily or otherwise;
d. failure by you to obey written directions of the Chief
Executive Officer of GAINSCO;
e. your conviction of a felony or a crime involving moral
turpitude;
f. you cease to be eligible to hold your position with any
GAINSCO Company as a result of any statute or rule, regulation
or interpretation of or by any regulatory agency or other
governmental or public authority; or
g. your fraud upon any GAINSCO Company.
3
6. In the event that a Change of Control occurs during the term of this
Agreement, the Company shall pay Employee, in lieu of (and not in
addition to) any Executive Severance Payment that may be owed to
Employee (but not in lieu of any other severance compensation, if any,
that may be offered to Employee pursuant to any standard Company
severance policy, other arrangement or agreement entered into
subsequent to the Effective Date), a total payment (the "Change in
Control Payment") equal to one year's base salary at Employee's
compensation rate as of the Termination Date, less deductions for
federal payroll taxes and benefits in accordance with applicable law
and Company policy. Employee shall be eligible to receive the Change in
Control Payment following the end of his employment with the Company,
ONLY if:
a. Prior to the date the Change in Control occurs (the "CIC
Date"), Employee's employment has not been terminated by
death, disability or retirement; AND
b. Prior to the CIC Date, Employee does not terminate his
employment with the Company without "Good Reason" as defined
in Section 4; AND
c. Prior to the CIC Date, Employee has not been terminated for
"Cause" as defined in Section 5; AND
d. Employee executes, and does not revoke, a Separation and
Release Agreement in the form attached hereto as Attachment 1
after the Termination Date; AND
e. Employee's employment with the Company has terminated
following or contemporaneously with a Change in Control; AND
f. Not less than (30) days and not more than sixty (60) days
following the Termination Date, Employee provides GAINSCO with
a good faith written certification that Employee has not
received an offer of long-term employment or a long-term
consulting relationship, or some combination thereof, from any
Acquiring Affiliated Party pursuant to which Employee would
(i) commence the employment or consulting relationship within
(30) days following the Termination Date and (ii) be entitled
to a Pay Package, and an executive severance agreement, in
aggregate, generally comparable to Employee's Pay Package and
executive severance agreement in place immediately prior to
the Termination Date.
As used in this Agreement, a "Change in Control" shall be deemed to
have occurred on the earliest date on which: (i) there shall be any
sale of all, or substantially all, of the assets of both NSL and DLT
other than in the usual and regular course of business (as defined in
Article 5.09B of the Texas Business Corporation Act, as amended) and
other than to GAINSCO or a subsidiary or affiliate of GAINSCO; or (ii)
there shall be consummated any stock purchase, consolidation or merger
of both NSL and DLT pursuant to which GAINSCO
4
or a subsidiary or affiliate of GAINSCO no longer owns at least 50% of
the voting stock of either NSL and DLT.
As used in this Agreement, an "Acquiring Affiliated Party" means any
person, entity or group (including any affiliate, assignee or successor
thereof) that acquires (whether by merger, reorganization or any other
direct or indirect transaction or series of transactions) (i) all, or
substantially all, of the assets of either NSL or DLT; or (ii) at least
50% of the voting stock of either NSL or DLT.
If Employee is eligible, the Company shall mail, in accordance with the
procedures set forth in Section 15 of this Agreement, the Change in
Control Payment to Employee within fifteen business days following the
later to occur of (i) the Employee's execution of the Separation and
Release Agreement attached hereto as Attachment 1, provided that the
Separation and Release Agreement has not been revoked and (ii) the
expiration of forty-five (45) days after the CIC Date. Under no
circumstances shall Employee be eligible to receive both an Executive
Severance Payment and a Change in Control Payment.
7. Employee agrees to hold confidential and not to disclose to anyone any
confidential information gained in the course of Employee's employment
with any GAINSCO Company including, but not limited to, information
concerning the financial affairs, business plans, strategic
alternatives, proprietary statistics, pricing, and customer information
of any GAINSCO Company. Employee agrees to abide by and keep in force
any confidentiality provisions of any agreement between Employee and
any of the GAINSCO Companies. Employee further agrees to hold
confidential, and not to disclose to anyone, the contents of this
Agreement, including its terms and any monetary consideration provided
herein, except as required by lawful subpoena or for purposes of
enforcing this Agreement or for tax advice.
8. Employee agrees that presently his annualized base salary is $178,000,
that his dependant medical and dental care insurance premiums of
$1,095.46 per month are paid by the Company, or an affiliate, and that
he receives a monthly auto allowance of $500 (in aggregate, the "Pay
Package").
9. As a material inducement to the GAINSCO Companies to enter into this
Agreement and subject to the terms of this paragraph, Employee hereby
irrevocably and unconditionally releases, acquits and forever
discharges the GAINSCO Companies and each of their current and former
parents, owners, shareholders, predecessors, successors, assigns,
agents, consultants, directors, officers, employees, representatives,
attorneys, divisions, subsidiaries, affiliates and all persons acting
by, through, under or in concert with any of them, (collectively the
"Released Parties"), from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts
and expenses (including attorneys' fees and costs actually incurred),
of any nature whatsoever, known or unknown ("Claim" or "Claims")
5
which Employee now has, owns, holds, or which Employee at any time
heretofore had, owned, or held against any of the Released Parties,
including, but not limited to: (a) all Claims under the AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as amended; (b) all Claims
under Title VII of the Civil Rights Act of 1964, as amended; (c) all
Claims under the Employee Retirement Income Security Act of 1974, as
amended; (d) all Claims arising under the Americans With Disabilities
Act of 1990, as amended; (e) all Claims arising under the Family and
Medical Leave Act of 1993, as amended; (f) all Claims related to
Employee's employment with any of the GAINSCO Companies; (g) all Claims
of unlawful discrimination based on age, sex, race, religion, national
origin, handicap, disability, equal pay, sexual orientation or
otherwise; (h) all Claims of wrongful discharge, breach of an implied
or express employment contract, negligent or intentional infliction of
emotional distress, libel, defamation, breach of privacy, fraud, breach
of any implied covenant of good faith and fair dealing and any other
federal, state, or local common law or statutory claims, whether in
tort or in contract; (i) all claims arising under any federal, state or
local regulation, law, code or statute; and (j) all claims for change
in control, severance, earnout payments, and other amounts under the
Stock Purchase Agreement or Employment Agreement. IN SHORT, EMPLOYEE IS
VOLUNTARILY GIVING UP HIS RIGHT TO XXX THE GAINSCO COMPANIES FOR ANY
ALLEGED WRONGDOING WHICH PRECEDED THE EFFECTIVE DATE, EXCEPT THAT
EMPLOYEE DOES NOT RELINQUISH HIS RIGHT TO CHALLENGE THIS AGREEMENT ON
THE BASIS THAT IT WAS NOT KNOWING AND VOLUNTARY. HOWEVER, EMPLOYEE
HEREBY RE-AFFIRMS THAT THIS AGREEMENT IS KNOWING AND VOLUNTARY. The
Parties understand and agree that neither the making of this Agreement
nor the fulfillment of any condition or obligation of this Agreement
constitutes an admission of any liability or wrongdoing on the part of
the other or any of the Released Parties. All liability by either Party
to the others has been and is expressly denied. As a material
inducement to Employee to enter into this Agreement and subject to the
terms of this paragraph, the GAINSCO Companies hereby irrevocably and
unconditionally release, acquit and forever discharge Employee from any
and all Claims which the GAINSCO Companies now have, own, hold, or
which the GAINSCO Companies at any time heretofore had, owned, or held
against Employee.
10. For a period commencing upon the Effective Date and ending one year
after the termination of Employee's employment with the Company,
Employee agrees that he will not solicit any person who is an employee
or independent contractor of any GAINSCO Company or its successors to
terminate any relationship such person may have with any GAINSCO
Company or its successors. Employee hereby represents and warrants that
he has not entered into any agreement, understanding or arrangement
with any employee or independent contractor of any GAINSCO Company or
its successors pertaining either to any business in which Employee has
participated or plans to participate.
Notwithstanding the foregoing, in the event that Employee receives a
Change in Control Payment or an Executive Severance Payment following
the occurrence of a Change in Control, then as of the date of his
receipt of such Change in Control Payment or an Executive
6
Severance Payment, the provisions of this Section 10 automatically
shall terminate insofar as they apply to NSL, Lalande and DLT (or any
of them) but shall continue in full force and effect with respect to
each other GAINSCO Company.
11. For a period commencing upon the Effective Date and ending one year
after the termination of Employee's employment with the Company,
Employee agrees that he shall not do any of the following:
(i) engage directly or indirectly, alone or as a shareholder,
partner, director, officer, employee of or consultant to any other
business organization, in any business activities that are in the
business of writing, claims adjusting, premium financing, selling,
underwriting, or acting as an agent with respect to private passenger
automotive insurance (the "Designated Industry") in the geographical
areas in which such business were conducted by any of the GAINSCO
Companies as of the date of the termination of this Agreement;
(ii) approach any customer of any of the GAINSCO Companies in
an attempt to divert it to any competitor of any of the GAINSCO
Companies in the Designated Industry; or
(iii) solicit or encourage any officer or employee of any of
the GAINSCO Companies to end his relationship with the applicable
GAINSCO Company or commence any such relationship with any competitor
of any of the GAINSCO Companies.
Employee's noncompetition obligations hereunder shall not
preclude Employee from owning less than five percent of the common
stock of any publicly traded corporation conducting business activities
in the Designated Industry. If at any time the provisions of this
Section 11 are determined to be invalid or unenforceable by reason of
being vague or unreasonable as to area, duration or scope of activity,
this Section 11 shall be considered divisible and shall be immediately
amended to only such area, duration and scope of activity as shall be
determined to be reasonable and enforceable by the court or other body
having jurisdiction over the matter, and Employee agrees that this
Section 11 as so amended shall be valid and binding as though any
invalid or unenforceable provision had not been included herein.
EMPLOYEE HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS
AGREEMENT AND, HAVING DONE SO, AGREES THAT THE RESTRICTIONS SET FORTH
HEREIN ARE REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF
THE BUSINESS INTERESTS AND GOODWILL OF THE GAINSCO COMPANIES AND THEIR
BUSINESSES, OFFICERS, DIRECTORS AND EMPLOYEES.
Notwithstanding the foregoing, in the event that Employee
receives a Change in Control Payment or an Executive Severance Payment
following the occurrence of a Change in Control, then as of the date of
his receipt of such Change in Control Payment or an Executive Severance
Payment, the provisions of this Section 11 automatically shall
terminate
7
insofar as they apply to NSL, Lalande and DLT (or any of them) but
shall continue in full force and effect with respect to each other
GAINSCO Company.
12. If deemed necessary by the Company, Employee agrees to render to the
Company his full and complete cooperation in any investigation,
proceeding, litigation or other legal proceeding. The Company agrees
that it will provide reasonable compensation to compensate Employee for
his time and expense associated with such cooperation. EMPLOYEE AND THE
COMPANY AGREE THAT ANY WRITTEN OR ORAL STATEMENT OR TESTIMONY GIVEN BY
EMPLOYEE SHALL BE TRUTHFUL.
13. Employee understands and agrees that if any provision of this Agreement
is held to be unenforceable, such provision shall be severed from the
other remaining provisions of this Agreement and it shall not affect
the validity or unenforceability of the remaining provisions.
14. The laws of the State of Florida shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the
rights and duties of the Parties hereto. The Parties agree that venue
for all disputes SHALL be in Dallas County, Texas. The Parties further
agree and acknowledge that they are subject to personal jurisdiction in
Dallas County, Texas.
15. All communications required or allowed under this Agreement to any of
the GAINSCO Companies shall be in writing and shall be to:
PRESIDENT
GAINSCO, INC.
0000 XXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
All communications required or allowed under this Agreement to Employee
shall be in writing and shall be to Employee's last address on file
with the Company. Employee understands and agrees that if his address
changes, he shall be responsible for informing the Company of his new
address in writing within one week of the change of address. If
Employee fails to comply with this provision, he shall be deemed to
have received any communication sent to him by the Company or its
representatives at Employee's last address on file with the Company.
16. No waiver of any of the terms of this Agreement shall be valid unless
in writing and signed by all Parties to this Agreement. No waiver or
default of any term of this Agreement shall be deemed a waiver of any
subsequent breach or default of the same or similar nature. This
Agreement may not be changed except by writing signed by the Parties.
17. The Parties agree that this Agreement may be executed in multiple
originals.
8
EXECUTED to be effective as of the Effective Date.
------------------------------------
Xxxxxxx Xxxxxxxx
GAINSCO, INC.
By:
----------------------------------
Its:
---------------------------------
National Specialty Lines, Inc.
By:
----------------------------------
Its:
---------------------------------
Lalande Financial Group, Inc.
By:
----------------------------------
Its:
---------------------------------
DLT Insurance Adjustors, Inc.
By:
----------------------------------
Its:
---------------------------------
MGA Insurance Company, Inc.
By:
----------------------------------
Its:
---------------------------------
9
ATTACHMENT 1 TO EXECUTIVE SEVERANCE AGREEMENT
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (this "Release Agreement") is
made and entered into to be effective as of ___________, 20__ (the "Effective
Date") by and among Xxxxxxx Xxxxxxxx ("Employee" or "you") and GAINSCO, INC., a
Texas corporation ("GAINSCO"), National Specialty Lines, Inc., a Florida
corporation ("NSL" or the "Company"), Lalande Financial Group, Inc., a Florida
corporation ("Lalande"), DLT Insurance Adjustors, Inc., a Florida corporation
("DLT"), and MGA Insurance Company, Inc., a Texas corporation ("MGA"). GAINSCO,
NSL, Lalande, DLT and MGA are sometimes referred to collectively as the "GAINSCO
Companies." Employee and the Company are sometimes referred to collectively as
the "Parties".
WITNESSETH:
WHEREAS, Employee and the Company agree that Employee was separated
from his employment with the Company (and with every other GAINSCO Company, if
any, with which Employee was employed) on __________________________; and
WHEREAS, Employee and the GAINSCO Companies understand that this
Release Agreement does not effect a waiver or release of rights or claims that
may arise from events occurring after the Employee executes this Release
Agreement; and
WHEREAS, Employee and the GAINSCO Companies expressly agree and
understand that the consideration for Employee's waiver of rights or claims is
the Executive Severance Payment described in Section 3 of the Executive
Severance Agreement between Employee and the GAINSCO Companies (the "Executive
Severance Agreement") or the Change in Control Payment described in Section 6 of
the Executive Severance Agreement, as the case may be, of which the form of this
Release Agreement is attached as Attachment 1. The Parties agree that the sum of
money represented by the Executive Severance Payment or the Change in Control
Payment, as the case may be, is a sum of money exceeding that to which Employee
is otherwise entitled; and
WHEREAS, each of the GAINSCO Companies desires to settle fully and
finally any and all differences that may Employee may have with it; and
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1. The Parties understand and agree that neither the making of this
Release Agreement nor the fulfillment of any condition or obligation of
this Release Agreement constitutes an admission of any liability or
wrongdoing on the part of the other or any Released Party. All
liability by either Party to the other has been and is expressly
denied.
1
2. Employee Acknowledgments.
a. You have been advised by the GAINSCO Companies to consult with
the attorney of Your choice prior to signing this Release
Agreement.
b. You have been given a period of at least twenty-one (21) days
within which to consider this Release Agreement.
c. You would not be entitled to receive the Executive Severance
Payment or the Change in Control Payment, as the case may be,
being offered to You but for Your signing this Release
Agreement
d. You may revoke this Release Agreement within seven (7) days
after the date You sign it by providing written notice of the
revocation to the Company no later than the seventh day after
You sign it. The Company must receive written notice of
revocation no later than 5:00 p.m. on the seventh day after
you sign the Release Agreement. You may mail written notice of
revocation to:
PRESIDENT
GAINSCO SERVICE CORP.
000 XXXXXXXX XXXXXX
XXXX XXXXX, XXXXX 00000
Alternatively, You may fax the written notice of revocation to the
Company, Attention: President, at (000) 000-0000.
3. It is further expressly agreed by the Parties that this Release
Agreement shall become effective and enforceable on the tenth day after
it is executed (the "Release Agreement Effective Date") by each of the
Parties if it is not revoked in accordance with Section 2(d) of the
Release Agreement.
4. Employee represents that he has carefully read and fully understands
all the provisions of this Release Agreement, that he is competent to
execute this Release Agreement, and that he is knowingly voluntarily
entering into this Release Agreement of his own free will and accord,
without reliance upon any statement or representation of any person or
parties released, or their representatives, concerning the nature and
extent of the damages or legal liability therefore.
5. Employee represents and acknowledges that in executing this Release
Agreement, he does not rely and has not relied upon any representation
or statement made by the GAINSCO Companies or any of their respective
agents, representatives or attorneys with regard to the subject matter,
basis or effect of this Release Agreement or otherwise, other than the
representations contained in this Release Agreement.
2
6. As a material inducement to the GAINSCO Companies to enter into this
Release Agreement, Employee does hereby agree to indemnify and save
harmless each of the GAINSCO Companies of and from all claims for any
unpaid federal income taxes, state and federal payroll taxes,
applicable state and federal withholding tax obligations, penalties or
interest arising out of this Release Agreement.
7. Employee's health insurance and all other benefits provided by or
through any of the GAINSCO Companies will terminate according to the
terms of the plans. This provision is not, however, intended to waive
Employee's rights under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended. ("COBRA") One or more of the GAINSCO Companies
will provide the COBRA notice under which Employee may exercise his
option in connection with continuation of coverage.
8. The Parties to this Release Agreement understand that to the extent
Employee may have vested rights pursuant to the group health insurance
plans, group life insurance plans, and the 401(k) plan of any of the
GAINSCO Companies, such rights are excluded from the scope of this
Release Agreement and are not terminated or released by it.
9. As a material inducement to the GAINSCO Companies to enter into this
Release Agreement and subject to the terms of this paragraph, Employee
hereby irrevocably and unconditionally releases, acquits and forever
discharges each of the GAINSCO Companies and their respective parents,
owners, shareholders, predecessors, successors, assigns, agents,
directors, officers, employees, representatives, attorneys, divisions,
subsidiaries, affiliates and all persons acting by, through, under or
in concert with any of them (collectively "Releasees"), from any and
all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred), of any nature whatsoever,
known or unknown ("Claim" or "Claims") which Employee now has, owns,
holds, or which Employee at any time heretofore had, owned, or held
against each of the Releasees, including, but not limited to: (a) all
Claims under the AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as
amended; (b) all Claims under Title VII of the Civil Rights Act of
1964, as amended; (c) all Claims under the Employee Retirement Income
Security Act of 1974, as amended; (d) all Claims arising under the
Americans With Disabilities Act of 1990, as amended; (e) all Claims
arising under the Family and Medical Leave Act of 1993, as amended; (f)
all Claims related to Employee's employment with the Company; (g) all
Claims of unlawful discrimination based on age, sex, race, religion,
national origin, handicap, disability, equal pay, sexual orientation or
otherwise; (h) all Claims of wrongful discharge, breach of an implied
or express employment contract, negligent or intentional infliction of
emotional distress, libel, defamation, breach of privacy, fraud, breach
of any implied covenant of good faith and fair dealing and any other
federal, state, or local common law or statutory claims, whether in
tort or in contract; (i) all Claims related to unpaid wages, salary,
overtime compensation, bonuses, severance pay, vacation pay or other
compensation
3
or benefits arising out of Employee's employment with the Company; and
(j) all Claims arising under any federal, state or local regulation,
law, code or statute. Notwithstanding the foregoing, nothing contained
in this Release Agreement is intended to release the Company from any
obligation it might have, if applicable, to pay Employee the Executive
Severance Payment or the Change in Control Payment, as the case may be.
10. As a material inducement to the GAINSCO Companies to enter into this
Release Agreement, Employee represents that he has filed no lawsuits
against any of the GAINSCO Companies and, if he has filed any lawsuits
against any of the GAINSCO Companies, he will notify the GAINSCO
Companies of such lawsuits and cause them to be dismissed with
prejudice.
11. It is understood and agreed that the release of liability described in
this Release Agreement is a material provision of this Release
Agreement. Accordingly, Employee covenants and promises not to xxx or
otherwise pursue legal action against any of the GAINSCO Companies,
other than for breach of this Release Agreement, and further covenants
and promises to indemnify and defend each of the GAINSCO Companies from
any and all such claims, demands and causes of action, including the
payment of reasonable costs and attorneys' fees relating to any claim,
demand, or causes of action brought by him. Employee agrees that should
any legal action be pursued on his behalf by any person or other entity
against any of the GAINSCO Companies regarding the claims released in
this Release Agreement, Employee will not accept recovery from such
action, but will assign such recovery to the Company and agrees to
indemnify each of the GAINSCO Companies against such claims and
assessment of damages.
11. Employee, on the one hand, and the each of the GAINSCO Companies, on
the other hand, promise and agree that they will not damage, or attempt
to damage, the business reputation or goodwill of the other.
12. Employee agrees that in all future litigation involving any of the
GAINSCO Companies for which any of the GAINSCO Companies requests
Employee's cooperation that he will fully cooperate with the applicable
GAINSCO Company. In return for his cooperation, the Company agrees to
pay Employee for all the reasonable costs incurred by Employee due to
his cooperation.
13. If Employee, on the one hand, or any of the GAINSCO Companies, on the
other hand, determines that the other has breached this Release
Agreement, the non-breaching Party will notify the Party in breach of
that fact in writing and the Party in breach will be afforded ten (10)
days to cure the breach.
14. Employee acknowledges that by the date Employee executes this Release
Agreement, he will return to the applicable GAINSCO Company any and all
property of the GAINSCO Company, such as (but not limited to) marketing
plans and related information, product development plans and related
information, trade secret information, pricing information,
4
vendor information, financial information, telephone lists, computer
software and hardware, keys, credit cards, vehicles, telephones, and
office equipment.
15. Any action, claim, arbitration or other legal proceedings brought to
enforce the Release Agreement or otherwise concerning this Release
Agreement SHALL be brought in a court of competent jurisdiction in
Dallas County, Texas. It is intended that the provisions of this
Release Agreement shall be enforced to the fullest extent permissible
under the laws and public policies of the State of Florida or any other
jurisdiction in which enforcement of this Release Agreement is sought
in the event that the choice of forum provision in this Release
Agreement is found invalid.
16. The provisions of this Release Agreement shall be construed in
accordance with the laws of the State of Texas without regard to its
conflicts of law principles. In the event any term or condition or
provision of this Release Agreement shall be determined to be invalid,
illegal or unenforceable by a court of competent jurisdiction, the
remaining terms, conditions and provisions of this Release Agreement
shall remain in full force and effect to the extent permitted by law.
17. No waiver of any of the terms of this Release Agreement shall be valid
unless in writing and signed by all Parties to this Release Agreement.
No waiver or default of any term of this Release Agreement shall be
deemed a waiver of any subsequent breach or default of the same or
similar nature. This Release Agreement may not be changed except by
writing signed by the Parties.
18. The section numbering and ordering in this Release Agreement is
provided for convenience only and will not affect its construction or
interpretation. Unless otherwise expressly provided, the word
"including" does not limit the preceding or following words or terms.
19. This Release Agreement shall be binding upon Employee and upon
Employee's heirs, administrators, representatives, executors, trustees,
successors and assigns, and shall inure to the benefit of Releasees and
each of them, and to their heirs, administrators, representatives,
executors, trustees, successors, and assigns.
20. For the same aforesaid consideration, it is further expressly agreed
and understood that the Parties will promptly execute any and all
documents that are necessary and appropriate to effectuate the terms of
this Release Agreement.
21. For the same aforesaid consideration, it is expressly agreed and
understood that the contents of this Release Agreement, including its
terms, any monetary consideration paid therein, and the Parties
thereto, shall not be disclosed, released or communicated to any person
(except their attorneys, spouses, and tax consultants), including
natural persons, corporations, partnerships, limited partnerships,
joint ventures, sole proprietorships or other business entities, except
for the purpose of enforcing this Release Agreement or any provision
therein
5
or pursuant to a lawful subpoena. Each Party agrees to give reasonable
notice to the other in the event disclosure of this Release Agreement
is sought by subpoena or otherwise.
22. This Release Agreement, together with the Executive Severance
Agreement, contains the entire understanding and agreement between the
parties with respect to the subject matter herein, and supersedes all
prior oral or written agreements between the parties with respect to
that subject matter. The obligations and liabilities of Employee under
the Executive Severance Agreement shall continue in full force and
effect and shall survive the making of this Release Agreement.
23. The Parties agree that the Release Agreement may be executed in
multiple originals.
[Intentionally left blank.]
6
EXECUTED to be effective as of the Effective Date.
--------------------------------------
Xxxxxxx Xxxxxxxx
GAINSCO, INC.
By:
-----------------------------------
Its:
----------------------------------
National Specialty Lines, Inc.
By:
-----------------------------------
Its:
----------------------------------
Lalande Financial Group, Inc.
By:
-----------------------------------
Its:
----------------------------------
DLT Insurance Adjustors, Inc.
By:
-----------------------------------
Its:
----------------------------------
MGA Insurance Company, Inc.
By:
-----------------------------------
Its:
----------------------------------
7
