Exhibit 10.33
SPECIAL EMPLOYMENT AGREEMENT
AGREEMENT made this 22nd day of March, 2002, by and between EVEREST GLOBAL
SERVICES, INC., a corporation having an address at 477 Martinsville Road,
Liberty Corner, New Jersey 07938 (the "COMPANY"), and JANET J. BURAK, an
individual (the "EXECUTIVE"), residing at 136 Eileen Drive, Cedar Grove, New
Jersey 07009.
W I T N E S S E T H:
WHEREAS, the Company wishes to ensure the employment of the Executive with the
Company and the Executive wishes to accept such employment upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive, and the Executive agrees to accept
such employment, upon the terms and conditions hereinafter set forth.
2. TERM
(a) The Agreement shall commence as of February 1, 2002. The Agreement
shall continue until November 30, 2005, unless earlier terminated in accordance
with the terms and conditions set forth in this Agreement. The period during
which this Agreement is operational shall be referred to in this Agreement as
the "TERM" or the "TERM OF AGREEMENT". The final day that the Agreement is
operative will be referred to in this Agreement as the "EXPIRATION DATE". The
effective date of the termination of the Executive's employment with the
Company, regardless of the reason, is referred to in this Agreement as the "DATE
OF TERMINATION."
(b) Upon termination of the employment of the Executive with the Company on
or before the Expiration Date, the Company shall pay the Executive her
compensation through the Date of Termination. In the event the Executive's
employment terminates as a result of her death, the Company shall pay the
compensation specified in sections 4(a) & (b) from the date of death through
November 30, 2005 in a lump sum to the Executive or the Executive's estate. Any
benefits to which the Executive or her beneficiaries may be entitled to under
the plans and programs described in section 5 below, as of the Date of
Termination shall be determined in accordance with the terms of such plans and
programs, and in accordance with federal and applicable state laws. Any
compensation and benefits which serve as consideration for this Agreement shall
inure to the benefit of the Executive and her heirs, beneficiaries,
administrators, representatives and executors. Except as provided in this
section 2(b) in connection with the Executive's termination of employment, the
Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
3. DUTIES AND RESPONSIBILITIES
(a) During the Term of this Agreement, the Executive shall serve without
specific job title. The Executive shall perform such duties and responsibilities
as may be assigned to her from time to time consistent with her former position
of regular employment with the Company as Senior Vice President, General Counsel
and Secretary. The Executive will hold herself to be reasonably available to
assist the Company in prosecuting or defending against legal claims or suits as
to which she has knowledge by virtue of her prior regular employment.
(b) The Executive's employment by the Company shall not preclude Executive
from accepting other assignments, or employment with other entities, provided
that such activities are not inconsistent with, and do not require Executive to
breach her obligations under the Company's Ethics Guidelines and Index to
Compliance Policies ("Ethics Guidelines"), as attached hereto and incorporated
herein. Provided, however, that it shall not be deemed a breach of Executive's
obligations under the Ethics Guidelines and the Company and all parent and
subsidiary corporations, partnerships and other entities and affiliates
controlled by, controlling or under common control with the Company,
specifically including Everest Re Group, Ltd., together with any predecessor and
successor entities (hereinafter being collectively referred to as "EVEREST")
hereby grant approval for her to (1) serve as an expert witness or consultant in
a matter in which EVEREST is not a party and has no direct interest; or (2)
represent a party other than EVEREST in a proceeding to which EVEREST is not a
party and in which it has no direct interest; or (3) serve on an arbitration
panel or as a mediator in any matter in which EVEREST is not a party and in
which it has no direct interest; or (4) engage in activities in furtherance of
her expert witness, consultant, counsel, arbitrator, umpire and/or mediator
career provided, however, that no such activities during the term of this
Agreement may be rendered in any matter in which EVEREST has a direct interest.
The Executive agrees that notwithstanding any commitments to other employment or
undertakings, she will make herself reasonably available from time to time, at
reasonable times and places, for such consultations as deemed necessary by the
Company during the Term of this Agreement.
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(c) On and after the execution of this Agreement, the Executive shall not
be provided an office by the Company.
4. COMPENSATION
As compensation for her services hereunder, the Executive shall receive the
following base salary and bonus payments, subject to applicable tax withholding
requirements, during the term of this agreement:
(a) The Company shall pay the Executive, in accordance with its customary
payroll practices, salary compensation at an annual rate of $120,000, payable on
a bi-weekly basis according to the Company's regular payroll cycle, from
February 1, 2002 until January 31, 2005. Any payments due to the Executive for
the period prior to the execution of this Agreement and the Release, Covenant
Not To Sue, Non-Disclosure, and Special Employment Agreement (the "Release")
shall be paid retroactively in the next regular Company payroll following
execution of those two documents and the expiration of the revocation period
described in section 6 of the Release.
(b) The Company shall pay the Executive a total of $50,000, payable on a
bi-weekly basis according to the Company's regular payroll cycle, for the period
from February 1, 2005 until November 30, 2005.
(c) On or shortly before the Expiration Date, the Company will tender to
the Executive a General Release and Waiver in the form attached hereto referred
to as Exhibit A. In exchange for the Executive's executing this General Release
and Waiver on or following the Expiration Date, the Company will pay the
Executive a special bonus payment of $50,000, in the next regular Company
payroll following the expiration of seven calendar days after the date the
Executive executes the General Release and Waiver, provided that the Executive
has not rescinded such release in the seven days following its execution.
5. EXPENSES; FRINGE BENEFITS
(a) The Company shall pay or reimburse the Executive during the Term for
any reasonable and necessary business expenses incurred in the performance of
services requested by and rendered to the Company hereunder.
(b) During the Term, the Executive shall be entitled to participate in and
receive benefits under the Company's medical and dental plans, as applicable
generally to the employees of the Company, subject, however, to the terms and
conditions of the various plans and programs in effect from time to time. During
the Term, the Executive shall accrue benefits under the Company's retirement
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plans, which are the qualified and non-qualified retirement plans maintained by
Everest Reinsurance Company, as applicable generally to the employees of the
Company, subject, however, to the terms and conditions of the various plans and
programs in effect from time to time.
(c) The Executive will not receive any Company stock options after February
1, 2002. As to such stock options as may have vested with the Executive prior to
February 1, 2002, the Executive must exercise such options on or before May 27,
2002 (three months following the expiration of the most recent "blackout
period"). The Executive further acknowledges and agrees that she will be subject
to any further "blackout periods" for the purchase and sale of Everest Re Group,
Ltd. Stock as may apply to any other Company employee. In addition, all stock
options previously awarded to the Executive under the Everest Re Group, Ltd.
1995 Stock Incentive Plan which were not vested as of February 1, 2002 are
forfeited and cancelled effective February 1, 2002. And, all shares of
restricted stock of Everest Re Group, Ltd. previously issued to the Executive
shall be forfeited effective February 1, 2002.
(d) The Executive will not, after February 1, 2002, participate in the
Company's Annual Incentive Plan, Incentive Compensation Plan or in the Everest
Re Group, Ltd. 1995 Stock Incentive Plan.
(e) The Executive waives any right to make contributions to or receive
Company-matching contributions in the Everest Reinsurance Employee Savings Plan
(also known as ERESP) for salary received after February 1, 2002. She
understands that she may continue to manage her existing account in ERESP, and
may access such funds, under the same terms and conditions as generally
applicable to employees of the Company.
(f) While the Executive will be covered by the Company Short Term
Disability Plan as required by New Jersey law, she agrees that in the event that
she is eligible for and receives payments under that plan, the Company may
offset any such amounts received against the salary and/or bonus payments
specified in paragraph 4 above, such that over the Term, the Executive's
compensation from the Short Term Disability Plan, combined with salary (and
bonus, if applicable), does not exceed $460,000.
(g) The Executive waives any participation in the Company's Long Term
Disability Plan and agrees to execute any documents required to effectuate an
opt-out from that Plan.
(h) The Executive shall not be entitled to accrue any paid vacation during
the Term.
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(i) The Executive will not be entitled to participate further in the
Everest Re Group, Ltd. Senior Executive Change of Control Plan and will no
longer be entitled to any benefits under such plan.
(j) The Executive will not be eligible for benefits under any new benefit
plan adopted by the Company during the Term, other than new medical, dental or
pension plans.
(k) Notwithstanding anything contained herein to the contrary, the Company
reserves the right to modify, amend or terminate any employee benefit plan or
policy as it deems appropriate in its discretion; provided that unless required
by law, the Company shall not amend, modify or terminate any such plan or policy
in a manner that treats the Executive differently from other employees.
6. TERMINATION
(a) The Company shall be entitled to terminate this Agreement and discharge
the Executive for "cause" effective upon the giving of written notice. The term
"cause" shall be limited to the following grounds:
(i) The misappropriation of the funds or property of the Company or
any act of fraud or dishonesty with respect to the Company, its business,
or its property;
(ii) Conviction of a felony or of any crime involving moral turpitude,
dishonesty or theft; or
(iii) The commission by the Executive of any act, or the Executive's
failure to act, which could reasonably be expected to injure the
reputation, business or business relationships of the Company.
(b) Upon termination of the Executive's employment with the Company,
pursuant to section 6(a), the Company shall pay the Executive her salary
compensation only through the date of Termination. Any benefits to which the
Executive or her beneficiaries may be entitled to under the plans and programs
described in section 5 above, or any other applicable plans and programs, as of
her Date of Termination shall be determined in accordance with the terms of such
plans and programs. The Company shall have no further liability to the Executive
or the Executive's heirs, beneficiaries or estate for damages, compensation,
benefits, severance, indemnities or other amount of whatever nature.
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7. DEATH
(a) In the event the Executive's employment terminates as a result of the
Executive's death, the Executive, or the Executive's estate, shall be entitled
to receive all compensation specified in section 4(a) & (b) through November 30,
2005 unless previously paid as provided in section 2(b). Any benefits to which
the Executive or her beneficiaries may be entitled under the plans and programs
described in section 5 as of her Date of Termination shall be determined in
accordance with the terms of such plans and programs. In the event of the
Executive's termination due to death, the Company shall have no further
liability to the Executive or the Executive's heirs, beneficiaries or estate for
damages, compensation, benefits, severance, indemnities or other amounts of
whatever nature.
8. CONFIDENTIAL INFORMATION In consideration of the covenants of the
Company herein, the Executive agrees as follows:
(a) The Executive hereby agrees and acknowledges that she has and has had
access to or is aware of Confidential Information. The Executive hereby agrees
that she shall keep strictly confidential and will not prior to or after Date of
Termination, without the Company's express written consent, divulge, furnish or
make accessible to any person or entity, or make use of for the benefit of
herself or others, any Confidential Information obtained, possessed, or known by
her except as required in the regular course of performing the duties and
responsibilities of her employment by the Company while in the employ of the
Company, and that she will, prior to or upon her Date of Termination deliver or
return to the Company all such Confidential Information that is in written or
other physical or recorded form or which has been reduced to written or other
physical or recorded form, and all copies thereof, in her possession, custody or
control. The foregoing covenant shall not apply to (i) any information that
becomes generally known or available to the public other than as a result of a
breach of the agreements of the Executive contained herein, (ii) any disclosure
of Confidential Information by the Executive that is expressly required by
judicial or administrative order; provided however that the Executive shall have
notified the Company as promptly as possible of the existence, terms and
circumstances of any notice, subpoena or other process or order issued by a
court or administrative authority that may require her to disclose any
Confidential Information, and cooperate with the Company, at the Company's
request and at the Company's expense, in taking legally available steps to
resist or narrow such process or order and to obtain an order or other reliable
assurance that confidential treatment will be given to such Confidential
Information as is required to be disclosed.
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(b) For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means all
non-public or proprietary information, data, trade secrets, "know-how", or
technology with respect to any products, designs, improvements, research,
styles, techniques, suppliers, clients, markets, methods of distribution,
accounting, advertising and promotion, pricing, sales, finances, costs, profits,
financial condition, organization, personnel, business systems (including
without limitation computer systems, software and programs), business
activities, operations, budgets, plans, prospects, objectives or strategies of
the Company.
9. ENFORCEABILITY
The failure of any party at any time to require performance by another party of
any provision hereunder shall in no way affect the right of that party
thereafter to enforce the same, nor shall it affect any other party's right to
enforce the same, or to enforce any of the other provisions in this Agreement;
nor shall the waiver by any party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or as a waiver
of the provision itself.
10. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights and obligations
hereunder may not be sold, transferred, assigned, pledged or hypothecated by the
Executive. The rights and obligation of the Company hereunder shall be binding
upon and run in favor of the successors and assigns of the Company; provided,
however, the Company may not assign or transfer its rights or obligations under
this Agreement unless such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law.
11. ARBITRATION
The Company and the Executive expressly agree that any and all disputes,
controversies or claims arising out of Executive's Special Employment
relationship, including alleged violation of a statute regulating employment
such as, but not limited to the New Jersey Law Against Discrimination, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, and
the Americans With Disabilities Act, as well as claims arising out of this
Agreement or concerning its meaning or application, shall be determined
exclusively by final and binding arbitration before a single arbitrator in
Somerset County, New Jersey, under the Model Employment Arbitration Procedures
of the American Arbitration Association, and that judgment upon the award
rendered by the Arbitrator may be entered in any court of competent
jurisdiction. Each party shall share equally the fees and costs of the
Arbitrator. Each party shall pay for its or her attorneys' fees and costs
including, without limitation, costs of any experts. However, if any party
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prevails on a statutory claim which entitles the prevailing party to a
reasonable attorneys' fee (with or without expert fees) as part of the costs,
the Arbitrator may award reasonable fees (with or with or without expert fees)
to the prevailing party in accordance with such statute. Any controversy over
whether a dispute is an arbitrable dispute or as to the interpretation or
enforceability of this paragraph with respect to such arbitration shall be
determined by the Arbitrator.
12. MODIFICATION
This Agreement may not be orally canceled, changed, modified or amended, and no
cancellation, change, modification or amendment shall be effective or binding,
unless in writing and signed by the parties to this Agreement.
13. SEVERABILITY; SURVIVAL
In the event any provision or portion of this Agreement is determined to be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall nevertheless be binding upon the parties with
the same effect as though the invalid or unenforceable part had been severed and
deleted. The respective rights and obligations of the parties hereunder shall
survive the termination of the Executive's employment to the extent necessary to
the intended preservation of such rights and obligations.
14. NOTICE
Any notice, request, instruction or other document to be given hereunder by any
party hereto to another party shall be in writing and shall be deemed effective
(a) upon person delivery, if delivered by hand, or (b) three days after the date
of deposit in the mails, postage prepaid if mailed by certified or registered
mail, or (c) on the next business day, if sent by facsimile transmission or
prepaid overnight courier service, and in each case, addressed as follows:
If to the Executive:
-------------------
Janet J. Burak
*** ****** Drive
***** *****, NJ 07009
***-***-3145 (tele)
***-***-5133 (fax)
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If to the Company:
Barry Smith, Senior Vice President
Everest Global Services, Inc.
477 Martinsville Road
Liberty Corner, New Jersey 07938
908-604-3535 (tele)
908-604-3571 (fax)
with a copy sent to:
Christopher H. Mills, Esq.
Collier, Jacob & Mills
580 Howard Avenue
Somerset, NJ 08873
732-560-7100 (tele)
732-560-0788 (fax)
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
15. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of New Jersey, without application of conflict or law provisions
applicable herein.
16. NO CONFLICT
The Executive represents and warrants that she is not subject to any agreement,
instrument, order, judgment or decree of any kind, or any other restrictive
agreement of any character, which would prevent her from entering into this
Agreement or which would be breached by the Executive upon her performance of
her duties pursuant to this Agreement.
17. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and the
Executive with respect to the Executive's employment by the Company during the
Term and all prior agreements, plans and arrangements relating to the employment
of the Executive by the Company are nullified and superseded hereby.
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18. HEADINGS
The headings contained in this Agreement are for reference purposes only, and
shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
EVEREST GLOBAL SERVICES, INC.
By: /s/ THOMAS J. GALLAGHER
-----------------------
Name: Thomas J. Gallagher
Title: President and COO
/s/ JANET J. BURAK
-------------------
EXECUTIVE'S SIGNATURE
Janet J. Burak
--------------
Executive's Name
Everest Reinsurance Company, its successors and assigns, acknowledges the
existence of and agrees to the terms of this Special Employment Agreement and
hereby guarantees its terms.
EVEREST REINSURANCE COMPANY
By: /s/ THOMAS J. GALLAGHER
-----------------------
Dated:
-----------------------
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RELEASE, COVENANT NOT TO SUE,
NON-DISCLOSURE AND SPECIAL EMPLOYMENT
AGREEMENT
This RELEASE, COVENANT NOT TO SUE, NON-DISCLOSURE AND SPECIAL EMPLOYMENT
AGREEMENT (the "AGREEMENT") dated as of February 1, 2002, between (1) JANET J.
BURAK ("Executive"), and (2) Everest Global Services, Inc., and all parent and
subsidiary corporations, partnerships and other entities and affiliates
controlled by, controlling or under common control with Everest Global Services,
Inc., specifically including Everest Re Group, LTD., together with any
predecessor and successor entities (hereinafter being collectively referred to
as "EVEREST"), sets forth the agreements of the parties hereto with regard to
the matters set forth herein:
1. BACKGROUND. Executive has been continuously employed by an EVEREST company
as a regular employee since March 17, 1980. She has most recently served
(among other positions) as Senior Vice President General Counsel and
Secretary of Everest Re Group, Ltd. At EVEREST's initiative, Executive's
regular employment with EVEREST terminated on February 1, 2002, which shall
be referred to as Executive's Regular Termination Date. EVEREST wishes to
respond to Executive's expressions of concern over the effect that leaving
EVEREST's payroll prior to attaining age 55 with the requisite years of
service to retire would have on Executive's benefits under the Everest
Reinsurance Retirement Plans and possible retiree medical benefits.
Therefore, EVEREST has agreed to continue Executive's employment with
EVEREST on a special basis, described more fully in the attached Special
Employment Agreement, which is incorporated herein and made a part hereof.
Such Special Employment will be retroactive to February 1, 2002 and will
continue until November 30, 2005, at which time Executive will be 55 years
of age. As of November 30, 2005, Executive's Special Employment will
terminate and she will be eligible for retirement under the then- current
Everest Reinsurance Retirement Plans and any successor plans.
2. CONSIDERATION TO BE EXTENDED TO EXECUTIVE BY EVEREST. In exchange for
Executive's execution of this AGREEMENT within 21 days of her receiving it,
and provided that Executive does not rescind the AGREEMENT as provided in
section 6, below, EVEREST agrees to enter into the Special Employment
Agreement with Executive. Executive acknowledges that absent the Special
Employment Agreement, her benefits under the Everest Reinsurance Retirement
Plans would be substantially less than they will be if she terminates
service pursuant to the Special Employment Agreement on November 30, 2005.
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This is so because as of that date, Executive will have 25 years and 8
months of service and be 55 years old. Executive acknowledges that when the
Special Employment Agreement ends, she will be eligible for whatever
pension and retiree medical benefits are then generally available to other
EVEREST employees of similar age and with similar length of service and
compensation amounts. Executive's actual pension benefit will be calculated
at the time she retires. Executive understands and acknowledges that
EVEREST retains its normal rights to amend or terminate employee pension or
other benefit plans, at any time, so long as it acts generally as to plan
participants and not in a way that is specifically designed to disadvantage
only Executive and consistent with all applicable laws.
3. REPRESENTATIONS BY EXECUTIVE. In consideration of the promises by EVEREST
to Executive as specified in paragraph 2 above, Executive agrees as
follows:
a. NON-DISCLOSURE OF PROPRIETARY INFORMATION. Executive acknowledges that
during the course of Executive's employment with EVEREST Executive
received, obtained or became aware of or had access to proprietary
information, lists and records of customers and trade secrets which
are the property of EVEREST and which are not known by competitors or
generally by the public ("Proprietary Information") and recognizes
such Proprietary Information to be valuable and unique assets of
EVEREST. For purposes of this subparagraph:
(i) Proprietary Information is deemed to include, without
limitation, (A) marketing materials, marketing manuals, policy
manuals, procedure manuals, policy and procedure manuals,
operating manuals and procedures and product documentation, (B)
all information about pricing, products, procedures, practices,
business methods, systems, plans, strategies or personnel of
EVEREST, (C) circumstances surrounding the relationships with,
knowledge of, or information about the customers, clients, and
accounts of EVEREST, including but not limited to the identity of
current active customers or prospects who have been contacted by
EVEREST, and (D) all other information about EVEREST which has
not been otherwise publicly disseminated by EVEREST, whether or
not that information is recorded and notwithstanding the method
of recordation, if any; and
(ii) Proprietary Information is deemed to exclude all information
legally in the public domain. Executive agrees to hold the
Proprietary Information in the strictest confidence and agrees
not to use or disclose any Proprietary Information, directly or
indirectly, at any time for any purpose, without the prior
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written consent of EVEREST or to use for Executive's benefit or
the benefit of any person, firm, corporation or other entity
(other than EVEREST), any Proprietary Information. The foregoing
covenant shall not apply to (i) any information that becomes
generally known or available to the public other than as a result
of a breach of the agreements of the Executive contained herein,
(ii) any disclosure of Proprietary Information by the Executive
that is expressly required by judicial or administrative order;
provided however that the Executive shall have notified the
Company as promptly as possible of the existence, terms and
circumstances of any notice, subpoena or other process or order
issued by a court or administrative authority that may require
her to disclose any Proprietary Information and reasonably
cooperate with the Company at the Company's request and at the
Company's expense in taking legally available steps to resist or
narrow such process or order and to obtain an order or other
reliable assurance that confidential treatment will be given to
such Proprietary Information as required to be disclosed.
Executive has returned all Proprietary Information in Executive's
possession or control to EVEREST.
b. COOPERATION, NO DETRIMENTAL ACTIONS. Executive will reasonably
cooperate with EVEREST in enforcing or defending against legal claims,
including appearing as a witness for EVEREST in court or
administrative proceedings, subject to reasonable reimbursement for
Executive's expenses, it being understood that doing so is one of the
obligations undertaken by Executive in connection with the Special
Employment Agreement. Executive will not take actions or make
disparaging statements which are detrimental to EVEREST or the
RELEASEES, as defined in paragraph 5 below.
4. STOCK OPTIONS. Executive acknowledges that Executive will no longer vest in
any unvested EVEREST stock options after February 1, 2002. Executive
further agrees that she forfeited all remaining restricted shares as of
February 1, 2002. Executive acknowledges that all stock options which are
vested as of February 1, 2002 must be exercised no later than May 27, 2002.
Failure by Executive to exercise vested options before 5:00 p.m. that date
will result in such unexercised vested options being forfeited and
cancelled.
5. RELEASE. In consideration of EVEREST's undertakings to Executive as
specified in paragraph 2 above, Executive grants EVEREST a RELEASE of all
claims, both known and unknown, that Executive may have which relate to
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Executive's employment or the termination of Executive's Regular employment
up to the date this RELEASE is executed by Executive (hereafter an
"EMPLOYMENT CLAIM"). The Executive and EVEREST agree that an EMPLOYMENT
CLAIM, specifically and without limitation, does not include claims:
a. for indemnification and defense as an employee, officer, director or
corporate agent of EVEREST against claims by third parties;
b. for vested benefits including, but not limited to, vested benefits
under the Everest Reinsurance Retirement Plans, including but not
limited to rights under any workers compensation program; Section
502(a) of the Employee Retirement Income Security Act, as amended, 29
U.S.C.ss.1001 et seq., and under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA");
c. For workers compensation benefits, provided however that any monies
that Executive receives under a workers compensation award will serve
as an offset to the total compensation to be paid under the Special
Employment Agreement.
d. arising out of enforcement of this Agreement by Executive; or
e. constituting cross-claims against EVEREST as a result of claims
brought by unaffiliated third parties against Executive based on
Executive's service as a regular employee of EVEREST.
The statutes which could form the basis for an EMPLOYMENT CLAIM include,
but are not limited to, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.ss. 1971 et seq.; the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C.ss. 621 et seq.; Section 510 of the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.ss.
1001 et seq.; the Americans With Disabilities Act, as amended, 42 U.S.C.ss.
12101 et seq.; the Older Workers Benefit Protection Act, as amended, 29
U.S.C. ss. 621 et seq.; the Civil Rights Act of 1866, as amended, 42
U.S.C.ss. 1981 et seq.; the New Jersey Law Against Discrimination, as
amended, N.J.S.A. 10:5-1 et seq.; the New Jersey Conscientious Employee
Protection Act, as amended, N.J.S.A. 34:19-1 et seq.; and the New Jersey
Family Leave Act, N.J.S.A. 34:11B-1 et seq.. The common law (non-statutory)
theories under which an EMPLOYMENT CLAIM could be made include, but are not
limited to, breach of an express employment contract, breach of a contract
implied from a personnel handbook or manual, or commission of a civil wrong
(known as a "tort") resulting in Executive's termination, or for alleged
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violation of the public policy of the United States or any state. Granting
a RELEASE of any EMPLOYMENT CLAIM pursuant to this AGREEMENT means that on
behalf of Executive and all who succeed to Executive's rights and
responsibilities, Executive releases and gives up any and all EMPLOYMENT
CLAIMS that Executive may have against EVEREST, and any of its
subsidiaries, benefit plans, affiliates or divisions, and all of their
directors, officers, representatives, shareholders, agents, employees, and
all who succeed to their rights and responsibilities (collectively referred
to as "RELEASEES"). With respect to any charges filed concerning events or
actions relating to an EMPLOYMENT CLAIM that occurred on or before the date
of this AGREEMENT or Executive's regular Termination Date (whichever is
later), Executive waives and releases any right that Executive may have to
recover in any lawsuit or proceeding brought by Executive or by an
administrative agency on Executive's behalf against the RELEASEES.
6. REVIEW PERIOD. Executive acknowledges that she has up to 21 days to review
this AGREEMENT, and she is hereby advised to review it with an attorney of
her choice. Executive also acknowledges that she was further advised that
she has seven days after she signs this AGREEMENT to revoke it by notifying
EVEREST in writing, of such revocation as set forth under Notices below.
Executive agrees that if she signs this AGREEMENT before twenty-one days
have expired, it was a voluntary decision to do so, on the basis that she
did not need any additional time to decide whether to sign this AGREEMENT.
This AGREEMENT shall become effective on the eighth (8th) day following its
execution by Executive (the "EFFECTIVE DATE"), unless revoked in accordance
with this paragraph. Executive agrees that by entering this AGREEMENT, she
will be knowingly and voluntarily relinquishing certain rights and benefits
that are otherwise available to other employees of the Company who have not
entered into employment agreements with EVEREST.
7. REVOCATION OF AUTHORITY TO BIND EVEREST. Executive agrees and acknowledges
that as of the Regular Termination Date, Executive no longer is empowered
to bind EVEREST in any agreement, whether verbal or written, and that
Executive shall have no authority to execute any documents, deeds, leases,
or other contracts on behalf of EVEREST, notwithstanding Executive's status
under the Special Employment Agreement. To the extent not effected by the
termination of Executive's regular employment, Executive resigns from all
officer and director positions with any Everest Re Group company.
8. SUCCESSORS AND ASSIGNS. All rights and duties of EVEREST under this
5
Agreement shall be binding on and inure to the benefit of EVEREST, its
successors and assigns. All rights of Executive hereunder shall be binding
upon and inure to the benefit of Executive and her heirs, beneficiaries,
representatives, administrators and executors.
9. NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered personally with receipt acknowledged or sent by registered or
certified mail, postage prepaid or by reputable national overnight delivery
service, to the addresses shown below, unless changed by notices given as
herein provided, except that notice of change of address only shall be
effective upon actual receipt:
If to Everest, to: Everest Global Services, Inc.
477 Martinsville Road
P.O. Box 830
Liberty Corner, New Jersey 07938
908-604-3535 (tele)
908-604-3571 (fax)
Attention: Barry Smith, Senior Vice President
With a copy to: Collier, Jacob & Mills, P.C.
580 Howard Avenue
Somerset, New Jersey 08873
Attention: Christopher H. Mills, Esq.
732-560-7100 (tele)
732-560-0788 (fax)
If to the Executive, to: Janet J. Burak
*** ****** Drive
***** *****, New Jersey 07009
***-***-3145 (tele)
***-***-5133 (fax)
10. CONFIDENTIALITY. Executive agrees to keep the terms of this AGREEMENT
confidential. Executive will not, at any time, talk about, write about or
otherwise publicize this AGREEMENT, or its negotiation, execution or
implementation, except with (1) the attorney who is advising her in
connection with it; (2) financial or tax consultants or advisors; and (3)
her immediate family, provided that all such persons with whom she
discusses this AGREEMENT promise in advance to keep the information that
may be revealed to them confidential and not to disclose it to others.
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Provided, however, that if disclosure of the existence or terms of this
AGREEMENT is specifically required by law, Executive shall notify EVEREST's
general counsel, in writing, of any such required disclosure not less than
10 days (or such shorter period if the time set for disclosure is less than
10 days) prior to the time set for disclosure, in order to allow EVEREST
sufficient time to move to quash. Notwithstanding anything contained
hereunto the contrary, Executive is permitted to disclose the existence and
terms of this Agreement as reasonably necessary or appropriate in
connection with her expert witness, consultant, counsel, arbitrator, umpire
and/or mediator career.
11. ARBITRATION. EVEREST and Executive expressly agree that any and all
disputes, controversies or claims arising out of this AGREEMENT, or
concerning its meaning, application or enforceability, shall be determined
exclusively by final and binding arbitration before a single arbitrator in
Somerset County, New Jersey, under the Model Employment Arbitration
Procedures of the American Arbitration Association, and that judgment upon
the award rendered by the Arbitrator may be entered in any court of
competent jurisdiction. Each party shall share equally the fees and costs
of the Arbitrator. Each party shall pay for its or her attorneys' fees and
costs including, without limitation, costs of any experts. However, if any
party prevails on a statutory claim which entitles the prevailing party to
a reasonable attorneys' fee (with or without expert fees) as part of the
costs, the Arbitrator may award reasonable fees (with or without expert
fees) to the prevailing party in accordance with such statute. Any
controversy over whether a dispute is an arbitrable dispute, or as to the
interpretation or enforceability of this paragraph with respect to such
arbitration, shall be determined by the Arbitrator.
12. RETURN OF PROPERTY. Executive represents she is not in possession of any of
the Company's property or business records.
13. APPLICABLE LAW. This AGREEMENT shall be deemed to have been made within the
State of New Jersey, and it shall be interpreted, construed, and enforced
in accordance with the law of the State of New Jersey, and before the
Courts of the State of New Jersey.
14. ENTIRE AGREEMENT; AMENDMENTS, MODIFICATIONS, WAIVERS. This AGREEMENT and
the incorporated Special Employment Agreement contain the sole and the
entire agreement between Executive and EVEREST, and completely and fully
supersede and replace any and all prior contracts, agreements, discussions,
representations, negotiations, understandings and any other communications
between the parties pertaining to the subject matter hereof. Executive
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represents and acknowledges that, in executing this AGREEMENT, she has not
relied upon any representation or statement made by EVEREST, or its counsel
or representatives, with regard to the subject matter of this AGREEMENT,
that is not set forth in this AGREEMENT. No other promises or agreements
shall be binding unless in writing, signed by the parties hereto, and
expressly stated to represent an amendment to this AGREEMENT. This
AGREEMENT cannot be amended or modified except by a written document signed
by both EVEREST and Executive, and no provision can be waived except by a
written document signed by the waiving party.
15. By signing this AGREEMENT, Executive acknowledges:
1. EXECUTIVE HAS READ THIS AGREEMENT COMPLETELY.
2. EXECUTIVE HAS HAD AN OPPORTUNITY TO CONSIDER THE TERMS OF THIS
AGREEMENT.
3. EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF EXECUTIVE'S
CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
4. EXECUTIVE KNOWS THAT EXECUTIVE MAY BE GIVING UP IMPORTANT LEGAL RIGHTS
BY SIGNING THIS AGREEMENT.
5. EXECUTIVE UNDERSTANDS AND MEANS EVERYTHING THAT EXECUTIVE HAS SAID IN
THIS AGREEMENT, AND EXECUTIVE AGREES TO ALL ITS TERMS.
6. EXECUTIVE IS NOT RELYING ON EVEREST OR ANY REPRESENTATIVE OF EVEREST
TO EXPLAIN THIS AGREEMENT AND RELEASE TO EXECUTIVE. EXECUTIVE HAS HAD
AN OPPORTUNITY TO CONSULT AN ATTORNEY OR OTHER ADVISOR TO EXPLAIN THIS
AGREEMENT AND ITS CONSEQUENCES TO EXECUTIVE BEFORE EXECUTIVE SIGNED
IT, AND EXECUTIVE HAS AVAILED HERSELF OF THIS OPPORTUNITY TO WHATEVER
EXTENT EXECUTIVE DESIRED.
7. EXECUTIVE HAS SIGNED THIS AGREEMENT VOLUNTARILY AND ENTIRELY OF
EXECUTIVE'S OWN FREE WILL, WITHOUT ANY PRESSURE FROM EVEREST OR ANY
REPRESENTATIVE OF EVEREST, OR ANYONE ELSE.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, this Agreement has
been executed as of the 22nd day of March, 2002.
EVEREST GLOBAL SERVICES, INC.
ON BEHALF OF ITSELF AND ALL
AFFILIATED EVEREST COMPANIES
By: /s/ THOMAS J. GALLAGHER
-------------------------
/s/ JANET J. BURAK
- -------------------
Janet J. Burak
***-**-****
- -----------
(Social Security Number)
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Exhibit A
---------
GENERAL RELEASE AND WAIVER
I understand that my active employment with Everest Global Services, Inc
("Everest Global Services") will terminate on November 30, 2005. I understand
that in consideration for my agreement to the following terms of this General
Release and Waiver, I will receive the special bonus payment described in
Section 4(c) of the Special Employment Agreement dated as of March ___, 2002.
1. I understand and agree that I will not receive the special bonus
payment specified in the Special Employment Agreement unless I
execute this General Release and Waiver.
2. I knowingly and voluntarily release and forever discharge Everest
Global Services and all of its affiliates, subsidiaries and
employees and their officers and directors (hereinafter
"Everest") from any and all claims known and unknown, which I, my
heirs, executors, administrators and assigns may have including,
but not limited to, any claim that arises out of my employment
with or the termination of my employment with Everest; or any
allegation, claim or violation arising under Title VII of the
Civil Rights Act of 1964, as amended; The Civil Rights Act of
1991; the Age Discrimination in Employment Act of 1967; as
amended; the Older Workers Benefits Protection Act; The Equal Pay
Act of 1963, as amended; the Americans with Disabilities Act of
1990; the Family and Medical Leave Act of 1993; the Civil Rights
Act of 1866, as amended; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor
Standards Act, or their state or local counterparts; the New
Jersey Law Against Discrimination; the Conscientious Employee
Protection Act; and any other federal, state or local civil or
human rights law or any other local, state or federal law,
regulation or ordinance; or under any public policy, contract or
tort, or under common law; for wrongful discharge; breach of
contract, infliction of emotional distress; defamation; or
arising under any policies, practices or procedures of Everest;
or any claim for costs, fees or other expenses, including
attorneys fees, incurred in these matters.
3. I agree that this General Release and Waiver does not waive or
release any rights or claims that I may have under the Age
Discrimination in Employment Act of 1967 which arise after the
date I execute this General Release and Waiver.
4. I agree not to file any charge or complaint on my own behalf,
based upon claims arising from, or attributable in any way to, my
employment with or separation from Everest, before any federal,
state or local court, or administrative agency, or to participate
in any such charge or complaint which may be made by any other
person or organization on my behalf. I also agree to withdraw
and/or dismiss any such pending charges or complaints.
5. I acknowledge that I have been advised I have fourteen (14) days
to consider this General Release and Waiver, and I acknowledge
that Everest has advised me in writing to consult with an
attorney regarding the legal consequences of the General Release
and Waiver. I have had an opportunity to discuss the terms of
this General Release and Waiver with an attorney and I understand
the legal consequences of the General Release and Waiver.
6. I agree that neither this General Release and Waiver, nor the
furnishing of the consideration for this General Release and
Waiver, shall be deemed or construed at any time to be an
admission by either Everest or myself of any improper or unlawful
conduct.
7. I agree that if I violate this General Release and Waiver by
suing Everest or those associated with Everest, I will pay all
costs and expenses of defending against the suit incurred by
Everest or those associated with Everest, including reasonable
attorneys' fees.
8. I agree that this General Release and Waiver is confidential and
agree not to disclose any information regarding the terms of this
General Release and Waiver, except to an attorney with whom I
choose to consult regarding this General Release and Waiver or as
required by law.
BY SIGNING THIS GENERAL RELEASE AND WAIVER, I STATE THAT:
A. I HAVE READ IT.
B. I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED, THE EQUAL PAY ACT OF 1963, AND
THE AMERICANS WITH DISABILITIES ACT OF 1990.
C. I AGREE WITH EVERYTHING IN IT.
D. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING
IT.
E. I HAVE BEEN GIVEN WHAT I CONSIDER A SUFFICIENT PERIOD OF TIME TO
REVIEW AND CONSIDER THIS GENERAL RELEASE AND WAIVER BEFORE
SIGNING IT.
F. I HAVE SIGNED THIS GENERAL RELEASE AND WAIVER KNOWINGLY AND
VOLUNTARILY.
G. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE AND WAIVER
MAY NOT BE AMENDED, WAIVED, CHANGED, OR MODIFIED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
EVEREST.
DATE
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SIGNATURE
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