EXHIBIT 10.45


 


CONSULTING AGREEMENT


AND
RELEASE


 


 


                This Consulting Agreement
and Release (“Agreement”) is dated January 1, 2007.  It is between Mark Dale, 4710 Newtown Blvd,
Owings Mills., MD 21117 (“you”) and CastlePoint Management Corp., a Delaware
corporation (“the Company”), located at 120 Broadway, New York, NY 10271.


 


                You
and the Company intend to be legally bound by the Agreement, and are entering
into it in reliance on the promises made to each other in the Agreement.  Under the Agreement, you will serve in an
advisory role to the Company for the period of time set forth herein and
thereafter your employment will end. You and the Company agree to settle all
issues concerning your employment, termination of employment and eligibility
for benefits.  The Company will pay you
certain benefits described in this agreement. 
In turn, you are providing additional services to the Company and are releasing
legal claims against the Company.


 


1.             Cessation 0f
Current Duties.   You resign all directorships and officerships with
the Company and affiliates effective December 7, 2006. You will relinquish your
current duties as of that date.


 


2.             Your Termination Date. 
Your employment will end on December 7, 2006 (your “Termination Date”).


 


3.             Consulting Services.    For
the period from December 8,2006 through
December 31, 2006, you performed consulting services for the Company on the
following terms: You shall make yourself reasonably available at least 20 hours
per week to provide advice and counsel as requested to the Company regarding
specialty program insurance business marketing and underwriting. You will work
out of your residence. You may be required to travel to the workplaces of
prospective insureds and brokers. You will be reimbursed for reasonable
expenses incurred therewith. You continue to receive your annual salary paid on
a semi-monthly basis through December 


 


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31, 2006. You will continue to receive all
employee benefits that you were receiving on  December 7, 2006 until December 31, 2006.


 


4.             Benefits After Termination Date.  You will be entitled to receive the benefits
described below  after the Termination
Date:


 


a.                                       (i) The Company will make you a payment
of $164,062.50 on January 15 , 2007, and a payment of $164,062.50 on April 15,
2007. (These payments will not be made until this Agreement is executed by
you.)


 


This payment will be paid net of all required and
applicable withholding taxes and deductions.


 


b.                                      If you receive any unemployment benefits
while you are receiving benefits from the Company, such benefits shall be
offset against the payment due under Paragraph a. of this Section of the
Agreement.


 


c.                                       You may convert your group life insurance
coverage to individual coverage in accordance with the terms of the Company’s
group life insurance plan.


 


d.                                      You may be entitled to benefits under the
Company’s 401K Plan, or other employee welfare plans offered by the Company. Any
and all benefits due under these plans shall be paid to you in accordance with
the terms of those plans, except, however, you will not be entitled to coverage
under the disability plan(s) after December 8, 2006.


 


e.                                       You will entitled to elect COBRA coverage
for 18 months commencing January  1,
2007, at your cost.


 


e.                                       The Company shall pay you, by December 15,
2006, for all accrued but unused vacation as of December 8, 2006.


 


f.                                         The Company will not pay you any other
money or supply any other benefits except as described in this Agreement.


 


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g.                                      The Company will not make false
statements about you or your employment at the Company to anyone.


 


5.             Benefits in the Case of Death  If you die before the end of the Payment
Period any and all payments due to be paid to you in the future under this
agreement as of the date of your death will be paid in a lump sum within ninety
(90) days after your death to your surviving spouse, if any.  If you have no surviving spouse, the payment
will be made to your estate.


 


6.             Your Promises to the Company


a.                                       You will hold all of the trade secrets,
confidential information and proprietary materials belonging to the Company or
any of its subsidiaries or affiliates (Companies) in the strictest
confidence.  You will not use, disclose
or reveal them to anyone.  You will not
make false statements about the Company or its business and you will not seek
to interfere with any contractual relationships that the Company has with
agents, insureds and vendors.


 


b.                                      You will make yourself available and
cooperate fully with the Companies and their attorneys in connection with any
adversarial proceeding, arbitration and/or litigation involving the
Companies.  The Company shall reimburse
you for reasonable costs you incur in connection with your cooperation.


 


c.                                       After December 31, 2006, you will
promptly return to the Company property of the Company that you now have (e.g.,
laptop computer, Blackberry).


 


d.                                      You will reconcile and submit to the
Company by December 31, 2006 your outstanding expense account(s) as of December
7, 2006.


 


e.                                       Until December 1, 2007, you will not,
without the permission of the Company, solicit, try to hire, or assist in
hiring any Company employee that is employed on December 7, 2006.


 


7.             Your Release of Claims


a.                                       You agree that you will not file (or ask or
let anyone file for you) any charge, complaint, claim or lawsuit of any kind in
connection with any claim released by this Agreement against any Released
Person.  However, the preceding sentence 


 


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does not apply to any
claim you might file alleging that your waiver of claims under the Age
Discrimination in Employment Act of 1967 (“ADEA”) was not knowing and
voluntary.


 


b.                                      You agree that you have not already filed
a charge, complaint, claim or lawsuit arising out of any claim released by this
Agreement against any Released Person.


 


c.                                       You acknowledge full and complete
satisfaction of, and release and discharge all Released Persons from, any
Claims.


 


d.                                      You are giving this release for yourself
as well as for your executors, administrators, heirs and assigns.


 


e.                                       “Released Persons” are the Company, its
predecessors, successors, parents, subsidiaries and affiliates, insurers and
attorneys and all of their directors, officers, agents and employees.


 


f.                                         “Claims” are any and all claims, demands
and causes of action of whatever kind, including any claims for attorney’s
fees, that you now have, or at any time had, against any Released Persons, but
only to the extent they arise out of or relate in any way to the Change in
Control Agreement, your employment, or termination of employment with the
Company and its affiliates.  “Claims”
includes, without limitation, claims that may arise under the Age
Discrimination in Employment Act, Americans with Disabilities Act, Title VII of
the Civil Rights Act, the Civil Rights Act of 1991, the Fair Labor Standards
Act, the State of New York  Human
Relations Act, and/or any other statute, regulation or principle or theory of
law which you may have now or in the future. “Claims” includes claims you may
not even know about or suspect as well as any claims you may have under the Age
Discrimination in Employment Act of 1967 (“ADEA”).


 


g.             “Claims”
does not include (and you are not releasing):


 


(1)                                  any claims against the Company for
promises it is making to you in this Agreement;


 


 


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(2)                                  any claims for benefits under any
retirement, savings, or other employee benefit programs (but your Release does
cover any claims you may make for severance benefits beyond those described or
referred to in this Agreement);


 


(3)                                  any claims covered by workers
compensation laws;


 


(4)                                  any claims that you did not knowingly and
voluntarily waive your Claims under ADEA;


 


 


h.                                      You retain the right to file a claim or a
charge of employment discrimination with the Equal Employment Opportunity
Commission (“EEOC”) because of race, color, sex, religion, national origin,
age, disability and/or equal pay under the statutes enforced by the EEOC with
respect to matters preceding the date of this Agreement and to assist or
cooperate with such agency in its investigation or prosecution of a claim or
charge.  You understand and agree,
however, that as part of this Agreement and Release, you are waiving any and
all right to recover damages and other relief in any lawsuit, regardless of
whether it is initiated by you or on your behalf by a government agency.  This waiver specifically covers all forms of
relief including, without limitation, reinstatement, front pay, back pay,
compensatory damages, mental and emotional distress damages, punitive damages
and attorneys’ fees.


 


8.             Confidentiality.  The
terms of this agreement are confidential. 
You agree not to disclose in any way this Agreement or any of its terms
to any person other than your spouse, lawyer or accountant, or other financial
adviser. The Company will likewise keep the Agreement confidential except as
may be required to be disclosed according to applicable statutes and
regulations.


 


9.             No Admission of Wrongdoing. 
Just because the Company is entering into this Agreement and paying you
money, the Company is not admitting that it (or any other Released Person) has
done anything wrong or violated any law, rule, order, policy, procedure, or
contract, express or implied, or otherwise incurred any liability.


 


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10.           Applicable
Law.  This Agreement is being
made in the State of New York.  It will
be interpreted, enforced and governed under the laws of that state.


 


11.           Final and
Entire Agreement.  This
Agreement is intended to be the complete, final and entire Agreement between
you and the Company as of the date first written above.  It fully replaces all earlier agreements or
understandings.  However, it does not
replace the terms of any:


 


a.                                       the terms of any employee benefit plan,
or incentive plan; or


 


b.                                      other agreement you might have entered
into with the Company that requires you to pay back money to the Company, or
that authorizes the Company to deduct money from your pay, when your employment
terminates or at any other time.


 


Neither you nor the Company has relied upon any other statement,
agreement or contract, written or oral, in deciding to enter into this
Agreement.  Any amendment to this
Agreement must be in writing and signed by both you and the Company.


 


 


12.           Your
Understanding.  By signing
this Agreement, you admit and agree that:


a.                                       you have read the Agreement;


 


b.                                      you understand it is legally binding, and
you were advised to review it with a lawyer of your choice;


 


c.                                       you have had (or have had the opportunity
to take) 21 calendar days to review it and discuss it with a lawyer of your
choice before signing it, and, if you sign before the end of that period, you
do so of your own free will and with the full knowledge that you could have
taken the full period;


 


d.                                      you realize and understand the release
covers all claims, demands, and causes of action against the Company and any
Released Persons (but does not apply to claims described in paragraph 4.g),
including claims under the Age 


 


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                                                Discrimination in Employment Act of 1967,
whether or not you know or suspect them to exist at the present time; and


 


e.                                       you understand the terms of the
Agreement, you are signing voluntarily and with the full understanding of its
consequences, and you have not been forced or coerced in any way.


 


13.           Revoking the
Agreement.  You have seven
days from the date you sign the Agreement to revoke and cancel it.  To do that, a clear, written cancellation letter
signed by you must be sent to Catherine Wragg before
the close of business on the seventh (7th)
calendar day following the date you sign this Agreement.  The Company will make no payments other than
those required by law or any existing contract until the end of the seventh
day.


 


14.           If Legal
Action Is Started.  You
understand and agree that one of the Company’s main reasons for entering into
this Agreement is to avoid future lawsuits and other litigation.  Therefore, if any legal action involving claims
released by paragraph 4 (except claims related to the validity of this
Agreement or how it is interpreted or implemented, or claims related to whether
your release of ADEA claims was knowing and voluntary) is started by you (or by
someone else on your behalf), after Today, against any Released Person, you
agree to pay back to the Company within thirty 30 days of the start of that
legal action all the money you receive under paragraph 2 above, as well as any
other thing of value you receive under this Agreement or the Change in Control
Agreement.  You also agree to pay the
Company any costs and attorneys’ fees it incurs in that action at the
conclusion of the action.  However, if
you claim that your release of ADEA claims was not knowing and voluntary, the
Company reserves its right to recover from you its attorneys’ fees and/or costs
in defending that claim, at the conclusion of that action.


 


If, in any legal action or arbitration, the release in paragraph 4 is
found to be unenforceable for any reason, then this Agreement shall be null and
void from Today on, and any money paid by the Company to you after Today under
paragraph 2 and not yet returned to the Company (including the value of any
Company-subsidy for group health care and life insurance coverages provided
under paragraph 2), will be treated as an overpayment by the Company, and you
will have to repay it to the Company with interest, compounded annually at the
rate of 6%.  However, the repayment
provision in this paragraph does not apply to legal actions in which you claim
that your release of ADEA claims was not knowing and voluntary.


 


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This paragraph does not apply to any thing of value given to you for
which you actually performed services and which by law you are entitled to
receive.


 


15.           Notices.  If notices need to be sent concerning this
Agreement, the Company will send notices to you at the address recited at the
beginning of this Agreement unless you provide us with another mailing address.  You should send notices to the Company at the
following address:


 


Catherine Wragg

CastlePoint Management Corp.

120 Broadway

New York, NY 10271


 


16.          Counterparts. 
More than one copy of this Agreement may be executed.  Each signed Agreement will be considered an
original and all signed agreements shall be considered one Agreement.


 


This Agreement will not be effective or binding on
either you or the Company until both have signed it.  This Agreement was signed on the dates
indicated:


 


	
   

  	
   

  	
   

  	
  /s/ Mark Dale

  
	
   

  	
   

  	
   

  	
  Mark Dale

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Laura Purpura

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CastlePoint Management Corp.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By 

  	
  /s/ Catherine Wragg

  
	
   

  	
   

  	
   

  	
  Its

  	
  Catherine Wragg

  



 


 


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