AGREEMENT AND RELEASE
Exhibit
10.33
AGREEMENT
AND RELEASE
THIS
AGREEMENT is made on the 25nd day of August, 2006, by and among Xxxxx
X. Xxxxxxx (hereinafter
called “Employee”) and PMA Capital Corporation and Pennsylvania Manufacturers’
Association Insurance Company and their affiliates, (hereinafter called
“Employer”).
RECITAL
WHEREAS,
Employer has determined to terminate Employee’s employment; and
WHEREAS,
the Employee has agreed to resign his position, and 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. Resignation
Date.
Employee’s employment with Employer and its affiliates terminated effective
August 10, 2006 (“Termination
Date”).
2. Severance
Pay.
a) Employer
shall provide severance pay to Employee equal to twenty (20) weeks of pay,
calculated as two (2) weeks of pay for each year of service up to a maximum
of
26 weeks and a minimum of four (4) weeks (“Severance Period”) as provided in the
PMA Capital Corporation and Pennsylvania Manufacturers’ Association Insurance
Company Amended and Restated Severance Pay Plan (the “Severance
Plan”).
b) Based
on
the foregoing, Employer shall provide severance pay to Employee in the sum
of
$110,769.23 less all applicable withholding taxes and other deductions
(“Severance Pay”). The Severance Pay shall be payable in accordance with its
standard payroll periods the gross amount of twelve thousand dollars ($12,000)
until the gross sum of one hundred ten thousand seven hundred sixty nine dollars
and twenty three cents ($110,769.23), less taxes and necessary withholdings,
has
been paid. In addition, within thirty (30) days following the Effective Date
of
this Agreement as defined in paragraph 21, Employer shall pay Employee the
gross
sum of thirty three thousand two hundred thirty dollars ($33,230.00), less
taxes
and necessary withholdings, as additional consideration.
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.
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 at the end of the Severance Period.
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 end of the Severance Period.
b) In
the
event Employee elects to continue health insurance coverage through the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
and returns this executed Agreement, and further does not revoke this Agreement
within the seven day 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 health insurance
continuation as was being paid by Employer prior to the Termination Date. The
Continuation Period for payment of health insurance premiums under this
Agreement shall commence on August 11, 2006, and conclude on December 29, 2006.
Employee must, during the Continuation Period, make timely monthly premium
payments under COBRA for such health insurance coverage to the extent that
the
COBRA premium exceeds the monthly subsidy paid by the Employer. After the
Continuation Period, Employee must make the full monthly COBRA premium payment
to continue the COBRA health insurance coverage. Notwithstanding the foregoing,
to the extent that Employee’s (or a qualified beneficiary’s) right to COBRA
continuation coverage terminates prior to the end of the Continuation Period,
Employer’s obligation to pay the monthly premium subsidy shall
cease.
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 Employer’s group health care plan. The Continuation Period
will be deemed to commence on August 11, 2006, 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, and as outlined in Addendum
A
attached hereto.
Vacation
Pay.
Payment
for accrued unused vacation days will be made as soon as practicable after
the
Termination Date. Employees who participate in the Purchased 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
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Employee
would be eligible will be reduced by any amounts due from the Employee for
days
used, but not fully paid for, under the Purchased Personal Time program.
4. Unemployment
Compensation.
If
Employee elects to file a claim for unemployment compensation benefits, Employer
will not contest Employee’s eligibility. Employer will, upon request, confirm
the resignation of Employee’s employment.
5. Outplacement
Assistance.
Employer agrees to engage the services, on Employee’s behalf and at employer’s
direction and expense, the services of an outplacement company, who will assist
employee with job search support. Services will be available for six months,
beginning immediately upon the expiration of the revocation period as described
in section 21 of this document.
6. Business
Expenses.
Employer agrees to reimburse Employee for regular, 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 therefor 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, Human Resources, Pennsylvania Manufacturers’ Association
Insurance Company. Upon request, verification will note that Employee resigned
his position, and received positive evaluations during his tenure.
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 Company.
b) Employee returned to Employer on August 18, 2006 all
known company property including, but not limited to, company-provided
automobiles, 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 before the
Termination Date) other than employees of Employer, or use for Employee’s
benefit, or the benefit of any corporation, firm, entity or person unrelated
to
Employer 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, whether or not developed,
devised or otherwise created in whole or in part by the efforts of Employee
and
whether or not a matter
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of
public
knowledge unless as a result of authorized disclosure) by reason of Employee’s
employment by Employer. 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.
d) Employer and 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 other party, or
the
goodwill of the business of Employer, 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 Employer or Employee
of the covenants contained in paragraphs (c) or (d) above will cause irreparable
damage to the parties such that it is and will be impossible to estimate or
determine the damage that will be suffered by the parties in the event of a
breach of such covenants. Therefore, the parties further agree that the parties
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. 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, 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
4
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 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. Employee agrees
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 3b, 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 Releases
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
5
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 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.
Employer agrees that the terms of this Agreement shall remain confidential
and
shall not be disclosed or publicized unless required by law or
regulation.
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
6
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.
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 twenty-one (21) 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 twenty-one (21) 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
September 15, 2006 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, Human Resources, Pennsylvania
Manufacturers’ Association Insurance Company, 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
7
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.
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 Corporation and
Pennsylvania
Manufacturers’ Association Insurance Company
000
Xxxxxx Xxxxxxx
Xxxx
Xxxx, XX 00000
Attention:
Xxxxxx X. XxXxxx
To
Employee:
Xxxxx
X.
Xxxxxxx
00
Xxxxxxxx Xxxxxx
Xxxxxx,
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 28 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.
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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/
Xxxxx X. Xxxxxxx XX
Employee’s
Signature
Xxxxx
X. Xxxxxxx XX
Employee’s
Name (Print)
August
25, 2006
Date
PMA
CAPITAL CORPORATION and
PENNSYLVANIA
MANUFACTURERS’ ASSOCIATION INSURANCE COMPANY
By
its:
/s/
Xxxxxx X. XxXxxx
Officer’s
Signature
Xxxxxx
X. XxXxxx
Officer’s
Name (Print)
Vice
President, Human Resources
Officer’s
Title
8/10/06
Date
