|
Exhibit 99.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and
Release (the "Agreement") is made and entered into as of
November 17, 2006 (the "Effective Date") by and between HCC
Insurance Holdings, Inc. ("HCC" or the "Company") and Christopher
L. Martin ("Martin").
RECITALS
Martin is the Executive Vice
President and General Counsel of the Company. Other than this
Agreement, Martin and the Company are parties to the following, and
only the following, agreements (collectively, the "Ancillary
Agreements"):
|
|
a.
|
|
Employment Agreement, dated as of May 18,
2006 (the "Employment Agreement"), and attached as
Exhibit A;
|
|
|
|
|
|
|
|
b.
|
|
Indemnification Agreement, dated as of
December 1, 1997 (the "Indemnification Agreement"), which the
parties agree to be a valid, binding and enforceable agreement
between them and the provisions of which are not waived, modified
or otherwise impaired by this Agreement in any respect, and
attached as Exhibit B;
|
|
|
|
|
|
|
|
c.
|
|
Incentive Stock Option Agreement Under the HCC
Insurance Holdings, Inc. 1995 Flexible Incentive Plan (the "8/97
Grant");
|
|
|
|
|
|
|
|
d.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 1995 Flexible Incentive Plan (the
"Second 8/97Grant");
|
|
|
|
|
|
|
|
e.
|
|
Incentive Stock Option Agreement Under the HCC
Insurance Holdings, Inc. 1997 Flexible Incentive Plan (the "1/98
Grant");
|
|
|
|
|
|
|
|
f.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 1997 Flexible Incentive Plan (the
"Second 1/98 Grant");
|
|
|
|
|
|
|
|
g.
|
|
Incentive Stock Option Agreement Under the HCC
Insurance Holdings, Inc. 1997 Flexible Incentive Plan (the "2/99
Grant");
|
|
|
|
|
|
|
|
h.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 1997 Flexible Incentive Plan (the
"Second 2/99 Grant");
|
|
|
|
|
|
|
|
i.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 1997 Flexible Incentive Plan (the
"12/99 Grant");
|
|
|
|
|
|
|
|
j.
|
|
Incentive Stock Option Agreement Under the HCC
Insurance Holdings, Inc. 2001 Flexible Incentive Plan (the "1/02
Grant");
|
|
|
|
|
|
|
|
k.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 2001 Flexible Incentive Plan (the
"Second 1/02 Grant");
|
|
|
l.
|
|
Incentive Stock Option Agreement Under the HCC
Insurance Holdings, Inc. 2001 Flexible Incentive Plan (the "7/02
Grant");
|
|
|
|
|
|
|
|
m.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 2001 Flexible Incentive Plan (the
"Second 7/02 Grant");
|
|
|
|
|
|
|
|
n.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 2001 Flexible Incentive Plan (the
"1/03 Grant");
|
|
|
|
|
|
|
|
o.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 2004 Flexible Incentive Plan (the
"9/05 Grant"); and
|
|
|
|
|
|
|
|
p.
|
|
Non-Qualified Stock Option Agreement Under the
HCC Insurance Holdings, Inc. 2004 Flexible Incentive Plan (the
"5/06 Grant").
|
Under the Stock
Option Agreements listed above in Agreement Recital paragraphs
c.-p., the Company has granted options to purchase shares of the
Company’s common stock ("Common Stock") in favor of Martin.
Each "Grant" and a description of the options that Martin has
exercised, what rights to purchase fully vested shares exist, and
what shares have not yet vested are described in the attached
Exhibit C to this Agreement, the Options and Awards Summary.
Exhibit C is incorporated in this Agreement by
reference.
Under each of the Indemnification
Agreement, Article IX of the Restated Certificate of
Incorporation of HCC Insurance Holdings, Inc., as amended (the
"Charter Indemnification") and Article VIII, "Indemnification
of Officers and Directors," of the Bylaws of Insurance Holdings,
Inc. (the "Bylaw Indemnification") (collectively, the "Existing
Indemnification Arrangements") the Company is obligated, under
certain circumstances, to indemnify Martin under the terms and
conditions therein stated. Notwithstanding any provision of this
Agreement to the contrary, the Existing Indemnification
Arrangements shall remain in effect and be enforceable accordance
with their respective terms and conditions, except as expressly
modified or supplemented by this Agreement.
On the terms hereinafter set
forth, the parties agree that Martin’s status as an officer
and employee of the Company and each of its subsidiaries is
terminated as of the Effective Date.
The parties agree that the
Agreement recitals are true and accurate, and that Martin does not
occupy any offices or have rights to acquire, directly or
indirectly, any Common Stock or options to purchase Common Stock of
HCC, except as set forth in the Agreement Recitals and as modified
by this Agreement.
AGREEMENT TERMS
Therefore, in consideration of the
promises and mutual agreements set forth in this Agreement, the
receipt and sufficiency of which is hereby acknowledged by all
parties, the Company and Martin agree as follows:
1. Termination of Other
Agreements. As of the Effective Date, the Employment Agreement
between Martin and the Company listed in Agreement Recital a. is
cancelled and
2
terminated and will be of no further force or effect. The
Existing Indemnification Arrangements shall remain binding and
enforceable as between the parties in accordance with their terms.
Therefore, Martin agrees and acknowledges that any rights he may
have to any payments, benefits, or other perquisites of any kind
whatsoever under the Employment Agreement including, without
limitation, compensation, salary, use of or ownership interest in
company automobiles, use of or ownership interest in company
airplanes, country club dues, vacation and sick pay, and travel and
car allowances, are extinguished by this Agreement and
Martin’s right to any claim or cause of action whatsoever to
reimbursement, payments, benefits, or other perquisites under the
Employment Agreement are released and forever waived under
Agreement paragraph 8. The Company will cooperate with Martin to
effect transfer of Martin’s existing disability and life
insurance policies to him provided that Martin reimburses the
Company for any pre-paid premiums. The Company will transfer to
Martin ownership of the Houstonian Club membership used by Martin
during his employment with the Company at no additional cost
(except any lawful tax withholdings). Notwithstanding the
foregoing, Martin shall be entitled to payment of (i) all
accrued compensation through the Effective Date (excluding any
bonus payments) and (ii) all unreimbursed expenses incurred
through the Effective Date.
2. Severance .
Contingent upon Martin’s compliance with each of the terms
and conditions of this Agreement, the Company will pay Martin
$285,000.00 minus all lawful tax withholdings (the
"Payment") in equal monthly installments for a period of twelve
(12) months ( i.e ., $23,750.00 per month minus
all lawful tax withholdings) beginning on the Effective Date.
Martin understands and agrees that the Payment is in addition to
anything of value to which Martin is already entitled to
receive.
3. Vesting of Stock
Options, Forfeiture and Effect on Grants. The parties agree
that Martin will have no right to accelerated vesting of options to
purchase Company stock (or other securities) that have not yet
fully vested by the Effective Date, as described in the Grants
listed in Exhibit C attached to this Agreement. As of the
Effective Date, Martin agrees that he forfeits all rights to, and
interest in, any then unvested stock options and such options shall
be canceled and terminated on the Effective Date. Concerning the
right to purchase shares that have fully vested, but have not been
exercised, Martin understands and agrees that all vested options
not exercised within sixty (60) days of the Effective Date
shall be forfeited and shall be canceled and terminated. Based on
the Company’s determination with the concurrence of its
independent auditors of the accurate grant date, Martin understands
and acknowledges that the actual exercise price may differ from the
exercise price set forth in his stock option agreements. Martin
agrees that the Company’s determination with the concurrence
of its independent auditors of the actual grant date and resulting
exercise price shall be the price used to determine any gains or
profits from Martin’s exercise of vested options and that his
exercise price will be determined after taking into account the
Company’s determination with the concurrence of its
independent auditors of the actual grant date and resulting
exercise price. Notwithstanding any provision in any Grants listed
in Exhibit C, Martin shall not be subject to forfeiture of any
option gain predicated on Martin engaging in a Competitive Business
as defined in the respective Grants.
4. Resignation.
Martin hereby irrevocably resigns all positions as an officer and
employee of the Company as of the Effective Date and covenants not
to seek employment thereafter with the Company or any subsidiary.
Likewise, Martin resigns all positions as a director, officer or
other representative of all Company subsidiaries, whether direct or
indirect,
3
effective as of the Effective Date and covenants never to seek
to be appointed or nominated as a director or officer of any
Company subsidiary.
5. Reimbursement of Gain
or Profit and Forfeiture. Regarding options that Martin has
already exercised at any time, Martin agrees to reimburse the
Company for all incremental gains or profits he received or
obtained resulting from any difference between the exercise price
that Martin exercised any options and the exercise price on the
accurate grant date as determined by the Company with the
concurrence of its independent auditors. Martin acknowledges and
agrees that the Company shall be entitled to offset any amounts
owed to him by the Company under this Agreement against the amount
of any incremental gains, profits or other amounts which Martin may
be entitled to based on any difference in stock option grant dates
or exercise prices from those reflected in each Grant, as
determined by the Company with the concurrence of its independent
auditors, arising from stock options issued at any time to Martin.
After the Company determines, with the concurrence of its
independent auditors, the amount of gain or profit from the
exercise of his options, Martin will, within thirty (30) days
after receiving written notice of the amount owed to the Company
accompanied by a statement showing the computation of the amount
owed, including the nature and amount of each adjustment to each
option exercise by Martin comprising the total adjustment, pay the
full amount owed to the Company or instruct the Company in writing
to offset such amount against the amounts owed to Martin hereunder,
or a combination of both methods of payments; provided however, if
Martin fails to pay the full amount or provide written instructions
with regard to any such offset, the Company shall be entitled to
exercise immediately its right of offset against any amounts owed
to Martin under this Agreement or the Existing Indemnification
Arrangements.
6. Medical and COBRA
Benefits. The Company shall continue Martin’s medical,
dental and vision benefits provided for in Section 3(d) of the
Employment Agreement until May 1, 2007 (the "Benefit
Termination Date"). At that time, Martin will be eligible to
receive eighteen (18) months of continued medical, dental, and
vision benefits through the Consolidated Omnibus Benefits
Reconciliation Act (COBRA) if Martin makes a timely election
for the payment of such benefits. Benefit continuation information
through COBRA and an election form will be sent to Martin upon his
qualification date. Contingent upon Martin’s compliance with
each of the terms and conditions of this Agreement, the Company
will pay the costs for Martin’s eighteen (18) months
from the Benefit Termination Date of COBRA continuation
coverage.
7. HCC Releasees .
The "HCC Releasees" are defined as HCC Insurance Holdings, Inc.,
each of HCC subsidiaries and each of HCC and its subsidiaries
predecessors, successors, parents, joint ventures, holding
companies, subsidiaries, divisions, affiliates, assigns,
partnerships, agents, directors, officers, employees, consultants,
committees, employee benefit committees, fiduciaries,
representatives, attorneys, and all persons and entities acting by,
through, under or in concert or in any such capacity with any of
them. Under this Agreement, Martin is excluded from the definition
of "HCC Releasee".
8. Global Release of
Claims . Martin, on behalf of himself, his heirs, executors,
successors and assigns, irrevocably and unconditionally releases,
waives, and forever discharges HCC and the HCC Releasees, excluding
Martin himself, from any and all claims, demands, actions, causes
of action, costs, fees, attorneys’ fees, and all liability
whatsoever, whether known
4
or unknown, fixed or contingent, which Martin has, had, or may
have against HCC or any of the HCC Releasees, from the beginning of
time and up to and including the date of execution of this
Agreement other than as may exist, or hereafter arise, under this
Agreement, the Ancillary Agreements, or the Existing
Indemnification Arrangements, except as expressly modified or
supplemented by this Agreement. This Agreement includes, without
limitation, claims at law or equity or sounding in contract,
express or implied (other than those arising under this Agreement,
the Ancillary Agreements, or the Existing Indemnification
Arrangements, except as expressly modified or supplemented by this
Agreement), or in tort, claims arising under any federal, state, or
local laws of any jurisdiction that prohibit age, sex, race,
national origin, color, disability, religion, veteran, military
status, sexual orientation, or any other form of discrimination,
harassment, or retaliation (including, without limitation, the Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Americans with Disabilities Act, Title VII of
the 1964 Civil Rights Act, the Civil Rights Act of 1991, 42 U.S.C.
§ 1981, the Rehabilitation Act, the Family and Medical Leave
Act, the Sarbanes-Oxley Act of 2002, the Employee Polygraph
Protection Act, the Financial Institutions Reform, Recovery and
Enforcement Act (or any other employment-related banking statute or
regulation), the Uniformed Services Employment and Reemployment
Rights Act of 1994, the Texas Commission on Human Rights Act, any
federal, state, local or municipal whistleblower protection or
anti-retaliation statute or ordinance, or any other federal, state,
local, or municipal laws of any jurisdiction), claims arising under
the Employee Retirement Income Security Act, or any other statutory
or common law claims (other than those arising under this
Agreement, the Ancillary Agreements, the Existing Indemnification
Arrangements and those that Martin may have under the statutory or
common law of Delaware regarding the advancement of expenses and
indemnification of officers and directors of Delaware corporations,
except as expressly modified or
|