Exhibit 10.3
AGREEMENT AND GENERAL RELEASE
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" or "Company") and Xxxxxx X. Xxxxxx,
his 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 30, 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,
$525,000 (Five Hundred Twenty Five Thousand Dollars and No Cents), less lawful
deductions, to be paid out over one year in installments coinciding with usual
semi-monthly payroll of Employer;
(b) to continue Employee's medical, dental and life insurance
for one year, deductions for said benefits to be taken out of semi-monthly
installments described in subsection 2(a), above. Employee's contribution
shall be no greater than employee's contribution would have been if he were
still employed by the Employer;
(c) pursuant to the NYMAGIC, INC. Stock Option Plan and the
minutes of the December 5, 2000 Stock Option and Compensation Committee Meeting,
Employee's Stock Option Agreements dated September 15, 1999 and December 21,
1999, are hereby amended to give Employee the immediate right to exercise the
options remaining therein, and continuing for a period of twelve months
following the Employee's last day of employment. Employer warrants and
affirmatively represents that the Stock Option Plan and Agreement permit the
exercise of options as set forth herein;
(d) to pay Employee for expenses incurred and previously
submitted to Employer for expense reimbursement in June 2002;
(e) to pay Employee for nine (9) days which represent
Employee's accrued vacation and sick pay;
(f) to reimburse Employee up to $3,000.00 (Three Thousand
Dollars and No Cents) for any legal fees incurred by him for the preparation
of this Agreement and General Release, said reimbursement shall be made within
seven (7) business days of Employee's presenting Employer with an invoice for
fees; and
(g) to release Employee of all claims, known or unknown,
asserted or unasserted, including, but not limited to, all actions or causes
of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, bonuses, commissions, controversies,
agreements, promises, claims, charges, complaints, and demands whatsoever in
law or in equity, which against the Employee, the Employer may now have or
hereafter can, shall, may or may have had, arising out of Employee's
employment and/or separation of his employment.
3. No Consideration Absent Execution of this Agreement. Employee
understands and agrees that he would not receive the monies and/or benefits
specified in paragraph "2" above, except for his 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 he 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 his 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, 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;
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;
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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.
6. Affirmations. Employee affirms that he 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 he has been paid
and/or has received all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and/or benefits to which he may be entitled and that no other
leave (paid or unpaid), compensation, wages, bonuses, commissions and/or
benefits are due to him, except as provided in this Agreement and General
Release. Employee further affirms that he has no known workplace injuries or
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occupational diseases and has been provided and/or has not been denied any
leave requested under the Family and Medical Leave Act.
7. Non-Competition. Employee covenants and agrees that for a period
of one (1) year after June 30, 2002, Employee will not, without the express
written consent of the Chairman of the Company, directly or indirectly, be
employed by, own, manage, operate, control, participate in, or be associated
in any manner with the ownership, management, operation or control of any
insurance company or insurance business, or the development, manufacture,
marketing, dissemination, sale, distribution or offering of products that are
competitive to products offered by the Company. This restriction shall be
limited in geographical scope to a radius of fifty (50) miles surrounding
Employer's office located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx..
8. Confidential Information. Employee acknowledges and agrees that
he has come into contact with, had access to and learned various technical and
non-technical trade secrets and other Confidential Information, which are the
property of the Employer. Such Confidential Information includes but is not
limited to methods, procedures, devices and other means used by the Company in
the conduct of its business, marketing plans and strategies, pricing plans and
strategies, data processing programs, software programs, database
applications, formulae, drawings, secret processes, machines and adaptations
thereto, inventions, research projects, and all other matters of a technical
nature, all of which Confidential Information is not publicly available, but
has been developed by the Company at its great effort and expense; names and
addresses of the Company's customers and clients and their representatives
responsible for entering into contracts for the Company's products, customers
or client leads or referrals, specific customer or client needs and
requirements and the manner in which they have been met by the Company,
information with respect to pricing, costs, profits, sales, markets, plans for
future business and other development, all of which Confidential Information
is not available from directories or other public sources. All of the
Confidential Information has been developed, acquired or compiled by the
Company at its great effort and expense.
9. Non-Disclosure of Confidential Information. Employee
acknowledges and agrees that any disclosure, divulging, revealing or other use
of any of the aforesaid Confidential Information by the Employee, other than
in connection with the Company's business will be highly detrimental to the
business of the Company and serious loss of business and pecuniary damage may
result therefrom. Accordingly, Employee specifically covenants and agrees to
hold all such Confidential Information and any documents containing or
reflecting the same in the strictest confidence, and Employee will not,
without the Company's prior written consent, disclose, divulge or reveal to
any person whomsoever, or use for any purpose other than the exclusive benefit
of the Company, any Confidential Information whatsoever, whether contained in
the Employee's memory or embodied in writing or other physical form.
10. Consultation. Employee agrees to provide Employer with his
services, as reasonably requested by the Employer for the period of up to one
year following Employee's last day of employment. Such services shall not
exceed twenty calendar days, for which Employee shall be paid at a mutually
acceptable per diem fee to be agreed upon by Employee and Employer.
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Additionally, Employee shall be entitled to reimbursement of ordinary expenses
incurred related to the services rendered.
11. Confidentiality. Employee agrees not to disclose any information
regarding the existence or substance of this Agreement and General Release,
except to his spouse, tax advisor, and an attorney with whom Employee chooses
to consult regarding his consideration of this Agreement and General Release.
[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.]
12. 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 breach 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. 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.
13. 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.
14. 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.
15. 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 he has not relied on any representations, promises, or agreements of any
kind made to him in connection with his decision to accept this Agreement and
General Release, except for those set forth in this Agreement and General
Release.
EMPLOYEE HAS BEEN ADVISED THAT HE 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.
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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 HE 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:
Xxxxxx X. Xxxxxx ----------------------------
Xxxxxx X. Xxxxxxxx
Chairman, NYMAGIC, INC.
Date:
------------------------- Date:
------------------------
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Xxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Re: Agreement and General Release
-----------------------------
Dear Xxx:
This letter confirms that on June __, 2002, I personally delivered
to you the enclosed Agreement and General Release. You have until July __,
2002 to consider this Agreement and General Release, in which you waive
important rights, including those under the Age Discrimination in Employment
Act of 1967. To this end, we advise you to consult with an attorney of your
choosing prior to executing this Agreement and General Release.
Very truly yours,
NYMAGIC, INC.
Xxxxxx X. Xxxxxxxx
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EXHIBIT "A"
-----------
Xxxxx Xxxxxxxxx
Mutual Marine Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Agreement and General Release
-----------------------------
Dear Xxxxx:
On ______________ [date] I executed an Agreement and General Release between
NYMAGIC, INC. and me. I was advised by NYMAGIC, INC., in writing, to consult
with an attorney of my choosing, prior to executing this Agreement and General
Release.
More than seven (7) calendar days have elapsed since I executed the
above-mentioned Agreement and General Release. I have at no time revoked my
acceptance or execution of that Agreement and General Release and hereby
reaffirm my acceptance of that Agreement and General Release. Therefore, in
accordance with the terms of our Agreement and General Release, I hereby
request payment of the monies described in paragraph 2 of that Agreement.
Very truly yours,
Xxxxxx X. Xxxxxx
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