SEPARATION AND GENERAL RELEASE
AGREEMENT
This Separation
and General Release Agreement (hereinafter referred to as
“Agreement”) is made this day 10 th of
November, 2008, by and between FRANK JOANLANNE (hereinafter
referred to as “Executive”) and PENN MILLERS INSURANCE
COMPANY (“Penn Millers”). Penn Millers, and its
subsidiaries and affiliates, past and present, together with their
directors, officers, agents, employees, stockholders,
representatives, assigns, and successors, past and present, and
each of them whether in such capacity, individually or in any other
capacity are collectively hereinafter referred to as “Penn
Millers Parties”, and such term shall be construed as
inclusive of as many of the foregoing entities and individuals as
may be applicable.
Executive and
Penn Millers are parties to an Employment Agreement dated the 1st
of January, 2006 (the “Employment Agreement”) which
sets forth the terms and conditions of the employment of Executive
by Penn Millers and contains certain provisions relating to the
termination of such employment. Section 7.4 of the Employment
Agreement requires that Executive agree to and sign a complete
release and hold harmless agreement as a condition of
Executive’s entitlement to certain payments under the
Employment Agreement.
In connection
with the termination of Executive’s employment effective as
of December 1, 2008, or sooner as agreed by the parties, and
in consideration of the covenants of Penn Millers contained in this
Agreement, Executive therefore intends by this Agreement to agree
to the release and hold harmless agreement required by such
Section 7.4, and the parties agree that, except as otherwise
set forth in this Agreement, Executive’s employment and the
Employment Agreement shall terminate effective as of
December 1, 2008, subject to the terms and conditions of this
Agreement; provided however that the Non-Competition Agreement
dated July 2, 2008, which was made in connection with the
Asset Purchase Agreement between Synergistic Networks, Inc. and
Penn Software and Technology Services, Inc., and Section 4 of
the Employment Agreement and all its subsections and any other
provisions of the Employment Agreement necessary or desirable for
the enforcement of such provisions (collectively, the
“Restrictive and Confidentiality Covenant Provisions”)
shall survive and remain in effect. (The Restrictive and
Confidentiality Covenant Provisions are incorporated by reference
in this Agreement as fully as though set forth herein in their
entirety.)
In consideration
of the foregoing and of the other covenants undertaken and releases
contained in this Agreement, Penn Millers and Executive further
agree as follows:
1. Executive’s
employment with Penn Millers is terminated effective as of
December 1, 2008, or sooner as agreed by the parties (the
“Termination Date”).
2. Prior to
the Termination Date, Executive shall deliver to Penn Millers all
personal property of the Penn Millers’ Parties in his
possession, including, without limitation, all items of personal
property described on the attached Exhibit 1 (the “Penn
Millers Property”), and Penn Millers shall make available to
Executive any personal property of Executive located at the offices
of Penn Millers.
3. In
accordance with Sections 2 and 7.3(b) of the Employment
Agreement, Penn Millers shall continue to pay Executive’s
Base Compensation, as defined under the Employment Agreement, until
December 31, 2009. Such payments will be paid in accordance
with regular payroll practice.
4. Executive
shall also be entitled to payment under the Success Sharing Plan
for 2008 based on the actual earned award which shall be pro-rated
by the number of full months worked in 2008 and paid when such
benefit would have been paid had Executive remained
employed.
5. Penn
Millers will pay for outplacement assistance for Executive in an
amount not to exceed three thousand dollars ($3,000).
6. Penn
Millers has agreed that Executive shall be continued on its health,
dental and vision insurance plans at his current contribution
level, to the fullest extent lawful to do so, for twelve months
beginning January 1, 2009 and ending December 31, 2009;
provided, however, that Penn Millers shall continue to take
deductions from Executive’s Base Compensation in order to
provide such, and that Executive’s rights shall be limited to
the right to participate in such plans to the extent then available
to employees of Penn Millers. The parties understand and
acknowledge that Executive’s and his dependents’
eligibility period under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) will include this
twelve month period, and that upon completion of the twelve month
period, Penn Millers shall notify Executive as to his eligibility
to elect COBRA continuation for the remainder of Executive’s
or his qualified dependents’ eligibility.
7. Excepting
only as specifically set forth in the written provisions of this
Agreement, Executive expressly agrees and understands that neither
Penn Millers nor any of the Penn Millers Parties has, and that each
will not have, any obligation to provide him presently or at any
time in the future with any payments, benefits or considerations
other than those specifically recited in Paragraphs 3 through 6
above. Executive also expressly agrees and understands that his
employment relationship with Penn Millers has been permanently and
irrevocably severed, and by his voluntary execution of this
Agreement, Executive agrees that Penn Millers has no obligation to
re-employ him or to even consider him for employment in the
future.
8. (a) Executive
specifically acknowledges that he has been informed by Penn Millers
that he has, had and/or will have had, prior to deciding whether or
not to voluntarily agree to enter into this Agreement, the right to
consider this Agreement for a period of no l
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