Exhibit 10.4
GENERAL RELEASE OF ALL
CLAIMS
1. For valuable consideration set
forth on Schedule A hereto, the adequacy of which is hereby
acknowledged, the undersigned (“ Executive ”),
on his own behalf and on behalf of his heirs, executors,
administrators, successors, representatives and assigns, does
herein knowingly and voluntarily unconditionally release, waive,
and fully discharge Marsh & McLennan Companies, Inc. and
its subsidiaries (including successors and assigns thereof)
(collectively, the “Company”), and all of their
respective past, present and future employees, officers, directors,
agents, affiliates, parents, predecessors, administrators,
representatives, attorneys, and shareholders, and employee benefit
plans, from any and all legal claims, liabilities, suits, causes of
action (whether before a court or an administrative agency),
damages, costs, attorneys’ fees, interest, injuries,
expenses, debts, or demands of any nature whatsoever, known or
unknown, liquidated or unliquidated, absolute or contingent, at law
or in equity, which were or could have been filed with any Federal,
state, or local court, agency, arbitrator or any other entity,
based directly or indirectly on Executive’s employment with
and separation from Company or based on any other alleged act or
omission by or on behalf of Company prior to Executive’s
signing this General Release. Without limiting the generality of
the foregoing terms, this General Release specifically includes all
claims based on the terms, conditions, and privileges of
employment, and those based on breach of contract (express or
implied), tort, harassment, intentional infliction of emotional
distress, defamation, negligence, privacy, employment
discrimination, retaliation, discharge not for just cause,
constructive discharge, wrongful discharge, the Age Discrimination
in Employment Act of 1967, as amended (the “ ADEA
”), the Older Workers Benefit Protection Act of 1990, the
Worker Adjustment and Retraining Notification Act, as amended,
Executive Order 11,141 (age discrimination), Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Civil Rights Act of 1866 and 1871, Sections 1981 through 1988 of
Title 42 of the United States code, as amended, 41 U.S.C. §
1981 (discrimination), 29 U.S.C. §206(d)(1) (equal pay),
Executive Order 11,246 (race, color, religion, sex and national
origin discrimination), the National Labor Relations Act, the Equal
Pay Act of 1993, the Americans with Disabilities Act of 1990, the
Occupational Safety and Health Act, as amended, the Family Medical
Leave Act, the Immigration Reform and Control Act, as amended, the
Vietnam Era Veterans Readjustment Assistance Act,
§§503-504 of the Rehabilitation Act of 1973 (handicap
rehabilitation), the Employee Retirement Income Security Act of
1974, as amended, any federal, state or local fair employment,
civil or human rights, wage and hour laws and wage payment laws,
and any and all other Federal, state, local or other governmental
statutes, laws, ordinances, regulations and orders, under common
law, and under any Company policy, procedure, bylaw or rule. This
General Release shall not waive or release any rights or claims
that Executive may have which arise after the date of this General
Release or that arise under or are preserved by Section 3.7,
Article 5 and Section 6.8 of the Employment Agreement,
effective as of March 20, 2008, by and between Company and the
Executive (the “ Employment Agreement ”) and
shall not waive post-termination health-continuation insurance
benefits required by state or Federal law.
2. Also for the valuable
consideration set forth on Schedule A hereto, the adequacy of which
is hereby acknowledged, by execution of this General Release
Executive also has entered into Schedule B hereto, which is
incorporated herein by reference but which shall be considered a
separate and severable undertaking by Executive, under English law
References to this General Release herein include and incorporate
by reference Schedule B.
3. Executive intends this General Release to be
binding on his successors, and Executive specifically agrees not to
file or continue any claim in respect of matters covered by
Section 1, above. Executive further agrees never to institute
any suit, complaint, proceeding, grievance or action of any kind at
law, in equity, or otherwise in any court of the United States or
in any state, or in any administrative agency of the United States
or any state, county or municipality, or before any other tribunal,
public or private, against Company arising from or relating to his
employment with or his termination of employment from Company
and/or any other occurrences to the date of this General Release,
other than a claim challenging the validity of this General Release
under the ADEA or respecting any matters not covered by this
General Release.
4. Executive is further waiving his
right to receive money or other relief in any action instituted by
him or on his behalf by any person, entity or governmental agency
in respect of matters covered by this General Release. Nothing in
this General Release shall limit the rights of any governmental
agency or his right of access to, cooperation or participation with
any governmental agency, including without limitation, the United
States Equal Employment Opportunity Commission. Executive further
agrees to waive his rights under any other statute or regulation,
state or federal, which provides that a general release does not
extend to claims which Executive does not know or suspect to exist
in his favor at the time of executing this General Release, which
if known to him must have materially affected his settlement with
Company.
5. Executive agrees that Executive
shall not be eligible and shall not seek or apply for reinstatement
or re-employment with Company, and agrees that any application for
re-employment may be rejected without explanation or liability
pursuant to this provision.
6. In further consideration of the
promises made by Company in this General Release, Executive
specifically waives and releases Company from all claims Executive
may have as of the date of this General Release, whether known or
unknown, arising under the ADEA. Executive further agrees
that:
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(a)
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Executive’s waiver of rights under this
General Release is knowing and voluntary and in compliance with the
Older Workers Benefit Protection Act of 1990 (“ OWBPA
”);
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(b)
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Executive
understands the terms of this General Release;
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(c)
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The
consideration offered by Company under Article 5 of the Employment
Agreement in exchange for the General Release represents
consideration over and above that to which Executive would
otherwise be entitled, and that the consideration would not have
been provided had Executive not agreed to sign the General Release
and did not sign the Release;
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(d)
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Company is
hereby advising Executive in writing to consult with an attorney
prior to executing this General Release;
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(e)
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Company is
giving Executive a period of at least twenty-one (21) days
within which to consider this General Release;
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(f)
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Following
Executive’s execution of this General Release, Executive has
seven (7) days in which to revoke this General Release by
written notice. An attempted revocation not actually received by
Company prior to the revocation deadline will not be effective;
and
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(g)
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This General
Release and all payments and benefits otherwise payable under
Article 5 of the Employment Agreement (other than the Accrued
Obligations) shall be void and of no force and effect if Executive
chooses to so revoke, and if Executive chooses not to so revoke,
this General Release shall then become effective and
enforceable.
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7. This General Release does not
waive rights or claims that may arise under the ADEA after the date
Executive signs this General Release. To the extent barred by the
OWBPA, the covenant not to sue contained in Section 2, above,
does not apply to claims under the ADEA that challenge the validity
of this General Release.
8. To revoke this General Release,
Executive must send a written statement of revocation
to:
Marsh & McLennan Companies,
Inc.
1166 Avenue of the
Americas
New York, NY 10036
Attn: Peter Beshar, General
Counsel
The revocation must be received no
later than 5:00 p.m. on the seventh day following Executive’s
execution of this General Release. If Executive does not revoke,
the eighth day following Executive’s acceptance will be the
“effective date” of this General Release.
9. This General Release shall be
governed by the internal laws (and not the choice of laws) of the
State of New York, except for the application of pre-emptive
Federal law and Schedule B. Schedule B shall be construed in
accordance with English law and the parties irrevocably submit to
the jurisdiction of the English Courts to settle any disputes which
may arise in connection with Schedule B.
PLEASE READ THIS AGREEMENT
CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
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SCHEDULE A
This Agreement has been entered into
by and between Marsh & McLennan Companies, Inc. (together
with its successors and assigns, the “Company”) and
Simon V. Freakley (“you”) with respect to your
termination of employment effective as of November 14, 2008
(“your date of termination”).
The Company agrees to pay and/or
provide you the following:
1. Cash severance :
$2,250,000, representing 100% of the sum of your base salary and
deemed annual bonus as determined in accordance with
Section 5.5(d) of the employment agreement between the Company
and you dated as of March 20, 2008 (the “Employment
Agreement”), paid within thirty (30) days following the
“effective date” of the General Release
(“Irrevocability Date”), but in no event later than the
time necessary for payment of such amounts to qualify as a
“short term deferral” for purposes of
Section 409A.
2. 2008 Annual bonus :
$750,000, paid within thirty (30) days following the
Irrevocability Date, but in no event later than the time necessary
for payment of such amounts to qualify as a “short term
deferral” for purposes of Section 409A.
3. Kroll Leadership Bonus
Plan : The unvested portion of your award under the Kroll
Leadership Bonus Plan (approximately $125,000) will be paid to you
in January 2009.
4. Equity-based awards : All
stock options, restricted stock units and performance restricted
stock units you hold as of your date of termination shall be
treated in accordance with their Terms and Conditions, as described
in Exhibits 1 and 2.
5. Health care coverage : You
are elig