GAINSCO INC
SEPARATION AGREEMENT AND RELEASE
<DOCUMENT>
<TYPE>EX-10.33
<SEQUENCE>3
<FILENAME>d02139exv10w33.txt
<DESCRIPTION>SEPARATION AGREEMENT AND RELEASE
<TEXT>
<PAGE>
                                                                   EXHIBIT 10.33

                        SEPARATION AGREEMENT AND RELEASE
                                     BETWEEN
                                MCRAE B. JOHNSTON
                                       AND
                           MGA INSURANCE COMPANY, INC.

     This Separation Agreement and Release ("the Agreement") is made and entered
into on December 17, 2002, by and between McRae B. Johnston (hereafter
"Johnston" or "You") and MGA Insurance Company, Inc., a Texas insurance company
(the "Company"). The Company and Johnston are sometimes referred to collectively
as the "Parties".

                                   WITNESSETH:

     WHEREAS, Johnston and the Company understand that this Agreement does not
effect a waiver or release of rights or claims that may arise from events
occurring after the Effective Date of this Agreement (as that term is described
in paragraph 4 below); and

     WHEREAS, Johnston and the Company expressly agree and understand that the
consideration for Johnston's waiver of rights or claims is included in the
amount of money referred to in paragraph 6 below, which amount represents the
sum of (i) the amount of money to which Johnston is otherwise entitled plus (ii)
the amount of money paid in consideration for Johnston's waiver of rights or
claims; and

     WHEREAS, the Company desires to settle fully and finally any and all
differences that Johnston may have with it; and

     NOW, THEREFORE, in consideration of the premises and mutual promises herein
contained, it is agreed as follows:

1. DENIAL OF LIABILITY. The Parties understand and agree that neither the making
of this Agreement nor the fulfillment of any condition or obligation of this
Agreement constitutes an admission of any liability or wrongdoing on the part of
the other or any of the Released Parties. All liability by either party to the
others has been and is expressly denied.

2. OTHER AGREEMENTS. This Agreement supersedes any and all other agreements,
written or verbal, which may exist between the Company and Johnston, except for
(i) the Consulting Agreement dated as of December 17, 2002 between the Parties;
and (ii) the Separation Agreement and Release dated as of December 17, 2002
among Johnston, GAINSCO, INC., National Specialty Lines, Inc., Lalande Financial
Group, Inc., DLT Insurance Adjustors, Inc. and Midwest Casualty Insurance
Company, a North Dakota corporation, each of which shall survive the making of
this Agreement in full force and effect (such two agreements, the "Surviving
Agreements").

3. JOHNSTON'S ACKNOWLEDGMENTS.

     a. You have been advised by the Company to consult with the attorney of
     Your choice prior to signing this Agreement.



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     b. You have been given a period of at least twenty-one (21) days within
     which to consider this Agreement, but have elected to execute this
     Agreement in a shorter period of time.

     c. You would not be entitled to receive the consideration (as described in
     paragraph 6) being offered to You but for Your signing this Agreement.

     d. You may revoke this Agreement within seven (7) days after the date You
     sign it by providing written notice of the revocation to the Company no
     later than the seventh day after You sign it. (This seven (7) day period of
     time given to you to revoke this Agreement is referred to hereafter as the
     "Revocation Period".) The Company must receive written notice of revocation
     no later than 5:00 p.m. on the seventh day after you sign this Agreement.
     You may mail written notice of revocation to:

                          MGA INSURANCE COMPANY, INC.
                          ATTN:  PRESIDENT
                          1445 ROSS AVENUE, SUITE 5300
                          DALLAS, TEXAS 75202

     Alternatively, You may fax the written notice of revocation to MGA
Insurance Company, Inc., Attention: President, at (214) 647-0430.

4. THE EFFECTIVE DATE. It is further expressly agreed by the Parties that this
Agreement shall become effective and enforceable on the expiration of the
Revocation Period on the seventh day after it is executed (the "Effective
Date"), provided that Johnston has not revoked this Agreement in accordance with
paragraph 3(d).

5. VOLUNTARY AGREEMENT. Johnston represents that he has carefully read and fully
understands all the provisions of this Agreement, that he is competent to
execute this Agreement, and that he is voluntarily entering into this Agreement
of his own free will and accord, without reliance upon any statement or
representation of any person or parties released, or their representatives or
their attorneys.

6. PAYMENT TO JOHNSTON. Provided that this Agreement has not been revoked in
accordance with Paragraph 3(d), the Company will pay to Johnston in one lump sum
payment $89,000.00 (EIGHTY-NINE THOUSAND DOLLARS AND ZERO CENTS) no later than 3
business days after the Effective Date of this Agreement.

7. INDEMNIFICATION FOR UNPAID TAXES. Because the Company will not withhold or
pay any federal or state payroll taxes, Johnston does hereby agree to indemnify
and save harmless the Company of and from all claims for any unpaid federal
income taxes, state and federal payroll taxes, applicable state and federal
withholding tax obligations, penalties or interest arising out of this
Agreement. The Company shall issue a 2002 Form 1099-MISC to Johnston
characterizing the payment to Johnston as "Other Income".

8. HEALTH INSURANCE. Johnston's health insurance and all other benefits of his
employment will terminate according to the terms of the plans. This provision is
not, however, intended to waive



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Johnston's rights under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended. ("COBRA"). Johnston will receive the COBRA notice under which
he may exercise his option in connection with continuation of coverage.

9. VESTED RIGHTS IN CERTAIN EMPLOYEE BENEFIT PLANS. The Parties to this
Agreement understand that to the extent Johnston may have vested rights pursuant
to group health insurance plans, group life insurance plans, and 401(k) plans of
the Company, such rights are excluded from the scope of this Agreement and are
not terminated or released by it.

10. RELEASE OF CLAIMS. Subject to the terms of this paragraph, Johnston hereby
irrevocably and unconditionally releases, acquits and forever discharges the
Company and each of its current and former parents, owners, stockholders,
predecessors, successors, assigns, agents, consultants, directors, officers,
employees, representatives, attorneys, divisions, subsidiaries, affiliates and
all persons acting by, through, under or in concert with any of them,
(collectively the "Released Parties"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorneys' fees and costs actually incurred), of any nature
whatsoever, known or unknown ("Claim" or "Claims") which Johnston now has, owns,
holds, or which Johnston at any time heretofore had, owned, or held against any
of the Released Parties, including, but not limited to: (a) all Claims under the
AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as amended; (b) all Claims under
Title VII of the Civil Rights Act of 1964, as amended; (c) all Claims under the
Employee Retirement Income Security Act of 1974, as amended; (d) all Claims
arising under the Americans With Disabilities Act of 1990, as amended; (e) all
Claims arising under the Family and Medical Leave Act of 1993, as amended; (f)
all Claims related to Johnston's alleged employment with the Company; (g) all
Claims of unlawful discrimination based on age, sex, race, religion, national
origin, handicap, disability, equal pay, sexual orientation or otherwise; (h)
all Claims of wrongful discharge, breach of an implied or express employment
contract, negligent or intentional infliction of emotional distress, libel,
defamation, breach of privacy, fraud, breach of any implied covenant of good
faith and fair dealing and any other federal, state, or local common law or
statutory claims, whether in tort or in contract; (i) all Claims related to
unpaid wages, salary, overtime compensation, bonuses, severance pay, vacation
pay, paid time off or other compensation or benefits arising out of Johnston's
alleged employment with the Company; (j) all claims arising under any federal,
state or local regulation, law, code or statute; and (k) all claims arising
under any and all written or oral agreements between the Parties or their
affiliates, including without limitation the Employment Agreement among
Johnston, GAINSCO, INC. and National Specialty Lines, Inc. dated October 23,
1998, as such agreement may have been previously terminated, amended or
supplemented, and the Stock Purchase Agreement among Johnston, GAINSCO, INC.,
National Specialty Lines, Inc. and Lalande Financial Group, Inc. dated August
17, 1998, as such agreement may have been previously terminated, amended or
supplemented; provided however, that nothing contained in this Agreement is
intended to release the Company from any Claims that may arise following the
Effective Date related to the Company's breach of the provisions of this
Agreement or the Surviving Agreements; and provided, further, that nothing
contained in this Agreement shall be deemed to release the Company from its
obligation to pay Johnston the sum of $43,099.44, representing payment in full
of all accrued vacation, paid time off or similar obligation of the Company to
Johnston, upon the conclusion of Johnston's employment with the Company. IN
SHORT, IN EXCHANGE FOR THE CONSIDERATION DESCRIBED IN PARAGRAPH 6 OF THIS
AGREEMENT, JOHNSTON IS


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VOLUNTARILY GIVING UP HIS RIGHT TO SUE THE RELEASED PARTIES FOR ANY ALLEGED
WRONGDOING WHICH PRECEDED THE DATE THAT JOHNSTON SIGNED THIS AGREEMENT, EXCEPT
THAT JOHNSTON DOES NOT RELINQUISH HIS RIGHT TO CHALLENGE THIS AGREEMENT ON THE
BASIS THAT IT WAS NOT KNOWING AND VOLUNTARY. HOWEVER, JOHNSTON HEREBY RE-AFFIRMS
THAT THIS AGREEMENT IS KNOWING AND VOLUNTARY.

     Subject to the terms of this paragraph, the Company hereby irrevocably and
unconditionally releases, acquits and forever discharges Johnston from any and
all Claims which the Company now has, owns, holds, or which the Company at any
time heretofore had, owned, or held against Johnston; provided however, that
nothing contained in this Agreement is intended to release Johnston from any
Claims that may arise following the Effective Date related to Johnston's breach
of the provisions of this Agreement or the Surviving Agreements.

11. REPRESENTATIONS OF NO LAWSUITS. Johnston represents that he has filed no
lawsuits against any of the Released Parties or, if he has filed any lawsuits
against any of the Released Parties, he will notify the Company of such lawsuits
immediately and cause them to be dismissed with prejudice prior to the Effective
Date of this Agreement. The Company represents that it has filed no lawsuits
against Johnston or, if it has filed any lawsuits against Johnston, it will
notify Johnston of such lawsuits immediately and cause them to be dismissed with
prejudice prior to the Effective Date of this Agreement.

12. INDEMNIFICATION FOR SUITS AGAINST THE COMPANY. Johnston covenants and
promises not to sue or otherwise pursue legal action against the Company or any
of the Released Parties, other than for breach of this Agreement or the
Surviving Agreements, and further covenants and promises to indemnify and defend
the Company and any of the Released Parties from any and all such claims,
demands and causes of action, including the payment of reasonable costs and
attorneys' fees relating to any claim, demand, or cause of action brought by him
other than for breach of this Agreement or the Surviving Agreements. Johnston
agrees that should any legal action be pursued on his behalf by any person or
entity against the Company or any of the Released Parties regarding the claims
released in this Agreement, Johnston will not accept recovery from such action,
but will assign such recovery to the Company and agrees to indemnify the Company
and any of the Released Parties against such claims and assessment of damages.
Reciprocally, the Company covenants and promises not to sue or otherwise pursue
legal action against Johnston, other than for breach of this Agreement or the
Surviving Agreements, and further covenants and promises to indemnify and defend
Johnston from any and all such claims, demands and causes of action, including
the payment of reasonable costs and attorneys' fees relating to any claim,
demand, or cause of action brought by it other than for breach of this Agreement
or the Surviving Agreements. The Company agrees that should any legal action be
pursued on its behalf by any person or entity against Johnston regarding the
claims released in this Agreement, the Company will not accept recovery from
such action, but will assign such recovery to Johnston and agree to indemnify
Johnston against such claims and assessment of damages.

13. NON-SOLICITATION. It is recognized and understood by the Parties hereto that
the employees, agents, independent contractors and sub-contractors of the
Company are an integral part of the Company's business and that it is extremely
important for the Company to retain their services. It is therefore understood
and agreed by the Parties that, because of the nature of the business of the


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Company, it is necessary to afford fair protection to the Company from the loss
of any such employees, agents, independent contractors and sub-contractors.
Consequently, Johnston covenants and agrees that until December 1, 2007,
Johnston shall not, directly or indirectly, or through any other person, firm,
or corporation, or in any capacity as described in this paragraph, whether for
or on behalf of Johnston or for any entity in which Johnston shall have a direct
or indirect interest (or any subsidiary or affiliate of any such entity),
whether as a proprietor, partner, co-venturer, financier, investor, stockholder,
director, officer, employer, employee, servant, agent, representative or
otherwise, hire or engage or attempt to hire or engage any individual who is or
has been an employee of the Company at any time during the period commencing on
July 1, 2002 and ending on December 1, 2007, other than Carlos De la Torre.
Further, Johnston covenants and agrees that for a period commencing on the
Effective Date of this Agreement and ending on December 1, 2007, Johnston shall
not, directly or indirectly, or through any other person, firm, or corporation,
or in any capacity as described in this paragraph above, induce, or attempt to
induce or influence any employee, agent, independent contractor or
sub-contractor of the Company, or any of its parent, subsidiaries or affiliates
to terminate their employment or relationship with the Company, or any of its
parent, subsidiaries or affiliates when the Company, or any of its parent,
subsidiaries or affiliates desire to retain the services of that employee,
agent, independent contractor, or sub-contractor.

14. NON-COMPETITION.

     a. Until after December 31, 2004, Johnston shall not do any of the
     following:

          (i) engage directly or indirectly, alone or as a shareholder, partner,
     director, officer, employee of or consultant to any other business
     organization, in any business activities that are in the business of
     writing, claims adjusting, premium financing, selling, underwriting, or
     acting as an agent with respect to private passenger automotive insurance
     in the State of Florida (the "Designated Industry"); or

          (ii) approach any customer of the Company in an attempt to divert it
     to any competitor of the Company in the Designated Industry.

     b. Johnston's noncompetition obligations hereunder shall not preclude
     Johnston from owning less than five percent of the common stock of any
     publicly traded corporation conducting business activities in the
     Designated Industry. If at any time the provisions of this paragraph 14 are
     determined to be invalid or unenforceable by reason of being vague or
     unreasonable as to area, duration or scope of activity, this paragraph 14
     shall be considered divisible and shall be immediately amended to only such
     area, duration and scope of activity as shall be determined to be
     reasonable and enforceable by the court or other body having jurisdiction
     over the matter, and Johnston agrees that this paragraph 14 as so amended
     shall be valid and binding as though any invalid or unenforceable provision
     had not been included herein. After two (2) years from the Effective Date
     of this Agreement, Johnston may engage in any activity in the Designated
     Industry subject to paragraphs 13 and 15.

15. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Johnston acknowledges and agrees
that he had access to certain Confidential Information, trade secrets and
proprietary data of the Company, its parent, subsidiaries or affiliates by
virtue of Johnston's relationship with the Company and his



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participation in the Company's activities and businesses. Johnston agrees to
maintain (except with the specific prior written consent of the Company) the
secrecy of all Confidential Information (as hereinafter defined) and agrees not
to disclose such Confidential Information to any person(s), employer(s),
partnership(s), corporation(s) or other entity of any nature whatsoever, and
agrees to maintain such confidential information in the strictest confidence and
trust. "Confidential Information" means, in whatever form (tangible or
intangible, including electronic data recorded or retrieved by any means), any
and all trade secrets, confidential knowledge, proprietary data, and information
owned by the Company or its parent, affiliates, or subsidiaries, furnished by
the Company or any of its parent, affiliates or subsidiaries to Johnston, or
developed by the Company, its parent or any affiliates, subsidiaries, agents,
contractors, or employees of the Company and which relates to the business or
activities of the Company, or any of its parent, subsidiaries or affiliates
including technical specifications, diagrams, flow charts, methods, processes,
procedures, discoveries, concepts, calculations, techniques, formulae, systems,
production plans, designs, research and development plans, marketing plans,
business plans, business opportunities, cost and pricing data, customer records
and lists, general chemical, engineering, manufacturing, financial and marketing
know-how, copyrightable works and applications for registrations thereof,
pending applications for letters patent of the United States and foreign
countries, and any such that are issued, granted or published, in common law,
state and federal rights relating to and under any trademarks, trade names or
service marks (and also including any of the foregoing provided to Johnston by
or on behalf of the Company, or any of its parent, subsidiaries or affiliates
prior to the Effective Date of this Agreement), but expressly excluding
information which (1) was available to the public prior to the time of
disclosure to Johnston; (2) becomes available to the public through no act or
omission of Johnston; or (3) becomes available to Johnston through or from a
third party who is not under any obligation of confidentiality to the Company,
its parent, subsidiaries, or affiliates. Johnston hereby expressly acknowledges
and agrees that if Johnston shall seek to disclose, divulge, reveal, report,
publish, transfer or use, for any purpose whatsoever, any Confidential
Information, Johnston shall bear the burden of proving that any such information
has become publicly available other than through the act or omission of Johnston
and that the actions of Johnston do not constitute a breach of any obligation of
Johnston hereunder. Johnston may disclose Confidential Information if required
to disclose such information by law or court order, but before doing so Johnston
must provide notice to the Company with regard to such potential disclosure.

16. SCOPE OF RESTRICTIONS ON JOHNSTON. JOHNSTON HAS CAREFULLY READ AND
CONSIDERED THE PROVISIONS OF THIS AGREEMENT AND, HAVING DONE SO, AGREES THAT THE
RESTRICTIONS SET FORTH HEREIN ARE REASONABLE AND ARE REASONABLY REQUIRED FOR THE
PROTECTION OF THE BUSINESS INTERESTS AND GOODWILL OF THE COMPANY AND ITS
BUSINESS, OFFICERS, DIRECTORS AND EMPLOYEES. JOHNSTON FURTHER AGREES THAT THE
RESTRICTIONS SET FORTH IN THIS AGREEMENT ARE NOT INCLUDED IN THIS AGREEMENT TO
IMPAIR JOHNSTON'S ABILITY TO SECURE EMPLOYMENT WITHIN THE FIELD OR FIELDS OF
JOHNSTON'S CHOICE, INCLUDING THOSE AREAS IN WHICH JOHNSTON IS, IS TO BE, OR HAS
BEEN EMPLOYED BY THE COMPANY (EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN
SECTION 14) BUT INSTEAD TO PROTECT THE CONFIDENTIALITY OF ITS CONFIDENTIAL
INFORMATION AND TRADE SECRETS AND LEGITIMATE BUSINESS INTERESTS.




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17. SEVERABILITY. The invalidity, illegality or unenforceability of any
provision herein shall not in any way affect, impair, invalidate or render
unenforceable this Agreement or any other provision hereof. In the event that
any provision herein is determined to be invalid, illegal or unenforceable, any
court having jurisdiction thereof shall have the power to reform such provision
to the extent necessary for such provision to be enforceable under applicable
law.

18. DAMAGE TO GOODWILL. Johnston and the Company promise and agree that they
will not damage, or attempt to damage, the business reputation or goodwill of
the other or make disparaging comments about the other.

19. COOPERATION WITH LITIGATION. Johnston agrees that in all future litigation
involving the Company for which the Company requests Johnston's cooperation that
he will fully cooperate with the Company. In return for his cooperation,
Johnston shall be paid compensation at the rate of $125 per hour for any hours
in excess of four (4) that he devotes to any particular litigation matter;
provided, however, that the amount otherwise owed to Johnston under this
paragraph shall be offset by the amount of any compensation paid to Johnston
under any of the Surviving Agreements for similar services related to the same
litigation matter. The Company also agrees to reimburse Johnston for all the
reasonable out-of-pocket costs incurred by Johnston due to his cooperation. The
Parties agree that if Johnston is required to testify or provide information, he
shall do so truthfully.

20. CURE PERIOD. If Johnston or the Company determines that the other has
breached this Agreement, the non-breaching party will notify the party in breach
of that fact in writing and the party in breach will be afforded ten (10) days
to cure the breach.

21. RETURN OF THE COMPANY'S PROPERTY. Johnston acknowledges that by the date
Johnston executes this Agreement, he will return to the Company any and all
property and Confidential Information of the Company, such as (but not limited
to) marketing plans and related information, product development plans and
related information, trade secret information, pricing information, vendor
information, financial information, telephone lists, computer software and
hardware, keys, credit cards, vehicles, telephones, and office equipment.

22. CHOICE OF VENUE. Any action, claim, or other legal proceedings brought to
enforce the Agreement or otherwise concerning this Agreement SHALL be brought in
a court of competent jurisdiction in Dallas County, Texas.

23. CHOICE OF LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Florida without regard to its conflicts
of law principles. In the event any term or condition or provision of this
Agreement shall be determined to be invalid, illegal or unenforceable by a court
of competent jurisdiction, the remaining terms, conditions and provisions of
this Agreement shall remain in full force and effect to the extent permitted by
law.

24. WAIVERS. No waiver of any of the terms of this Agreement shall be valid
unless in writing and signed by all Parties to this Agreement. No waiver or
default of any term of this Agreement shall be deemed a waiver of any subsequent
breach or default of the same or similar nature. This Agreement may not be
changed except by writing signed by the Parties.



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25. PARAGRAPH NUMBERING AND ORDERING. The paragraph numbering and ordering in
this Agreement is provided for convenience only and will not affect its
construction or interpretation. Unless a clear contrary intention appears, the
word "including" does not limit the preceding or following words or terms and
the word "or" is used in the inclusive sense of "and/or".

26. BINDING EFFECT OF THIS AGREEMENT. This Agreement shall be binding upon
Johnston and upon Johnston's heirs, administrators, representatives, executors,
trustees, successors and assigns, and shall inure to the benefit of the Released
Parties and each of them, and to their heirs, administrators, representatives,
executors, trustees, successors, and assigns. This Agreement shall be binding
upon the Company and its administrators, representatives, successors, and
assigns.

27. CONSTRUCTION. This Agreement is the product of arms-length settlement
negotiations between the Parties through their respective counsel, and no party
shall be deemed to be the drafter of any provision or the entire agreement. Each
of the provisions of this Agreement, including without limitation the provisions
of Sections 2, 7, 10, 11, 12, 13, 14 and 15, was included as a material
inducement to each of the parties to this Agreement to enter into this
Agreement. The wording in this Agreement was reviewed and accepted by all
Parties after reasonable time to review with legal counsel, and no party shall
be entitled to have any wording of this Agreement construed against the other
party as the drafter of the Agreement in the event of any dispute in connection
with this Agreement.

28. EXECUTION OF DOCUMENTS. For the same aforesaid consideration, it is further
expressly agreed and understood that the Parties will promptly execute any and
all documents that are necessary and appropriate to effectuate the terms of this
Agreement.

29. RESIGNATION. As evidenced by his signature below, Johnston hereby resigns
from any and all positions as an officer or director of the Company.


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     EXECUTED on the date first above written.



                                        /s/ McRae B. Johnston
                                        --------------------------------------
                                        McRae B. Johnston

                                        MGA INSURANCE COMPANY, INC.


                                        By:  /s/ Glenn W. Anderson
                                             --------------------------------


                                        Its:     President
                                             ---------------------------------



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