EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into effective as of
the 1st day of January, 2003 (the "Effective Date"), between HCC Insurance
Holdings, Inc. and Xxxxxxxxxxx X. Xxxxxx ("Executive"). As used herein, the
"Company" shall mean HCC Insurance Holdings, Inc. ("HCC") and any direct or
indirect subsidiary of HCC, which may change from time-to-time, for which
Executive devotes from time-to-time the substantial portion of his efforts. HCC,
Executive and the Company are sometimes collectively referred to herein as the
"Parties" and individually as a "Party."
R E C I T A L S:
WHEREAS, Executive is to be employed as an officer or key employee of
the Company;
WHEREAS, it is the desire of the Company to engage Executive as an
officer or key employee of the Company;
WHEREAS, Executive is desirous of being employed by the Company on the
terms herein provided; and
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the Parties agree as follows:
1. TERM. Effective as of the Effective Date, Executive's previous
employment agreement dated October 1, 2000, as amended, is terminated, and the
Company hereby employs Executive, and Executive hereby accepts such employment,
on the terms and conditions set forth herein, for the period (the "Basic Term")
commencing on the Effective Date and expiring at 11:59 p.m. on December 31, 2005
(unless sooner terminated as hereinafter set forth).
2. DUTIES.
(A) DUTIES AS EMPLOYEE OF THE COMPANY. Executive shall,
subject to the supervision of Chief Executive Officer of the Company or such
other person designated by such Chief Executive Officer, act as an officer or
key employee of the Company in the ordinary course of its business with all such
powers with respect to such management and control as may be reasonably incident
to such responsibilities. During the Basic Term, Executive's duties and title
may be changed but the compensation provided for in Section 3 from time-to-time
shall not be reduced. During normal business hours, Executive shall devote
his/her full time and attention to diligently attending to the business of the
Company. During the Basic Term, Executive shall not directly or indirectly
render any services of a business, commercial, or professional nature to any
other person, firm, corporation, or organization, whether for compensation or
otherwise, without the prior written consent of the Chief Executive Officer of
the Company. However, Executive shall have the right to engage in such
activities as may be appropriate in order to manage his personal investments so
long as such activities do not materially interfere or conflict with the
performance of his duties to the
Company hereunder. The conduct of such activity shall not be deemed to
materially interfere or conflict with Executive's performance of his duties
until Executive has been notified in writing thereof and given a reasonable
period in which to cure the same.
(B) OTHER DUTIES. If elected, Executive agrees to serve as a
member of such managerial Committees of the Company and of any of its direct or
indirect parents or subsidiaries (collectively "Affiliates") and in one or more
executive offices of any of the Company's Affiliates, provided Executive is
indemnified for serving in any and all such capacities in a manner acceptable to
the Company and Executive. If elected, Executive agrees that he shall not be
entitled to receive any compensation for serving as a director of HCC, or in any
capacities for the Company's Affiliates other than the compensation to be paid
to Executive by the Company pursuant to this Agreement.
3. COMPENSATION AND RELATED MATTERS.
(A) BASE SALARY. Executive shall receive an initial base
salary paid by the Company of $220,000 for the period from the Effective Date to
December 31, 2003; $240,000 for the calendar year beginning January 1, 2004; and
$265,000 for the calendar year beginning January 1, 2005. For purposes of this
Agreement, "Base Salary" shall mean the Executive's initial base salary or, if
increased, then the increased base salary. The Base Salary shall be paid in
substantially equal monthly installments.
(B) BONUS PAYMENTS. Executive shall be eligible to receive, in
addition to the Base Salary, an annual cash and/or stock bonus payment in an
amount, which may be zero, to be determined at the sole discretion of the Chief
Executive Officer of the Company or such other person in accordance with the
Company's policies.
(C) EXPENSES. During the Basic Term, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
him (in accordance with the policies and procedures established by the Company)
in performing services hereunder, provided that Executive properly accounts
therefor in accordance with Company policy.
(D) OTHER BENEFITS. Executive shall be entitled to participate
in or receive benefits ("Other Benefits") under any compensation, employee
benefit plan, or other arrangement made generally available by the Company,
subject to and on a basis consistent with the terms, conditions, and overall
administration of such plan or arrangement. Nothing paid to Executive under any
plan or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the Base Salary payable to Executive pursuant to
Paragraph (a) of this Section.
(E) VACATIONS. Executive shall be entitled to twenty (20) paid
vacation days per year during the Basic Term. There shall be no carryover of
unused vacation from year to year. For purposes of this Paragraph, weekends
shall not count as vacation days, and Executive shall also be entitled to all
paid holidays given by the Company to its senior executive officers.
(F) PERQUISITES. Executive shall be entitled to receive the
perquisites and fringe benefits provided for on Appendix 1 hereof.
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(G) PRORATION. Any payments or benefits payable to Executive
hereunder in respect of any calendar year during which Executive is employed by
the Company for less than the entire year, unless otherwise provided in the
applicable plan or arrangement, shall be prorated in accordance with the number
of days in such calendar year during which he is so employed. Notwithstanding
the foregoing, any payments pursuant to Paragraph 4(c) or 4(d) this Agreement
shall not be subject to proration.
4. TERMINATION.
(A) DEFINITIONS.
(1) "CAUSE" shall mean:
(i) Material dishonesty which is not the
result of an inadvertent or innocent mistake of Executive with respect
to the Company, its parent, or any of its affiliated companies;
(ii) Willful misfeasance or nonfeasance of
duty by Executive;
(iii) Material violation by Executive of any
material term of this Agreement;
(iv) Conviction of Executive of any crime
other than a vehicular offense which could reflect in some material
fashion unfavorably upon the Company, its parent, or any of its
affiliated companies.
Executive may not be terminated for Cause unless and until there has
been delivered to Executive written notice from the Chief Executive
Officer of the Company (the "CEO") supplying the particulars of his
acts or omissions that the Board believes constitute Cause, a
reasonable period of time (not less than 30 days) has been given to
Executive after such notice to either cure the same or to meet with the
CEO with his attorney if so desired by Executive, and following which
the CEO reaffirms its previous decision.
(2) A "DISABILITY" shall mean the absence of
xecutive from Executive's duties with the Company on a full-time basis for 180
consecutive days, or 180 days in a 365-day period, as a result of incapacity due
to mental or physical illness which results in the Executive being unable to
perform the essential functions of his position, with or without reasonable
accommodation.
(3) A "GOOD REASON" shall mean any of the following
(without Executive's express written consent):
(i) The taking of any action by the Company
that would adversely affect Executive's participation in, or materially
reduce Executive's benefits under, any employee benefit plan, unless
such failure or such taking of any action adversely affects persons in
the Company generally;
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(ii) Executive's involuntary relocation to
any place, other than the executive offices as a result of the Company
relocating its executive offices, exceeding a distance of fifty (50)
miles from the place of Executive's normal place of employment on the
Effective Date, except for reasonably required travel by Executive on
the Company's business;
(iii) Any material breach by the Company of
any material provision of this Agreement; or
(iv) Any failure by the Company to obtain
the assumption and performance of this Agreement by any successor (by
merger, consolidation, or otherwise) or assign of the Company.
However, Good Reason shall exist with respect to an above specified matter only
if such matter is not corrected, or begun to be corrected, by the Company within
thirty (30) days after the Company's receipt of written notice of such matter
from Executive. In no event shall a termination by Executive occurring more than
ninety (90) days following the date of the event described be a termination for
Good Reason due to such event.
(4) "TERMINATION DATE" shall mean the date Executive
terminates or is terminated for any reason pursuant to this Agreement.
(B) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON: BENEFITS. In
the event there is a termination by the Company without Cause, or if Executive
terminates for Good Reason (a "Termination Event"), this Agreement shall
terminate and Executive shall be entitled to the following severance benefits:
(1) For the remainder of the Basic Term after the
Termination Date, Base Salary (as defined in Paragraph 3(a)), at the rate in
effect immediately prior to the Termination Event, payable within thirty (30)
days after the Termination Date in a lump sum, appropriately discounted to take
into consideration the lump sum early payment;
(2) All accrued compensation and unreimbursed
expenses through the Termination Date. Such amounts shall be paid to Executive
in a lump sum in cash within thirty (30) days after the Termination Date; and
(3) Executive shall be free to accept other
employment during such period, and other than as set forth herein, there shall
be no offset of any employment compensation earned by Executive in such other
employment during such period against payments due Executive under this
Paragraph (4), and there shall be no offset in any compensation received from
such other employment against the Base Salary set forth above.
(C) TERMINATION IN EVENT OF DEATH: BENEFITS. If Executive's
employment is terminated by reason of Executive's death during the Basic Term,
this Agreement shall terminate without further obligation to Executive's legal
representatives under this Agreement, other than for payment of all accrued
compensation, unreimbursed expenses, and the timely payment or provision
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of Other Benefits through the date of death. Such amounts shall be paid to
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
ninety (90) days after the date of death.
(D) TERMINATION IN EVENT OF DISABILITY: BENEFITS. If
Executive's employment is terminated by reason of Executive's Disability during
the Basic Term, this Agreement shall terminate but the Company shall continue to
pay the Base Salary for a period of three (3) months and thereafter shall make
such additional payment for the Basic Term so that the after tax effect of
Executive's compensation is the same as before the Disability. Executive shall,
not be entitled to any subsequent cash or stock bonuses.
(E) VOLUNTARY TERMINATION BY EMPLOYEE AND TERMINATION FOR
CAUSE: BENEFITS. Executive may terminate his employment with the Company without
Good Reason by giving written notice of his intent and stating an effective
Termination Date at least ninety (90) days after the date of such notice;
provided, however, that the Company may accelerate such effective date by paying
Executive through the proposed Termination Date (but not to exceed ninety (90)
days). Upon such a termination by Executive or upon termination for Cause by the
Company, this Agreement shall terminate and the Company shall pay to Executive
all accrued compensation, unreimbursed expenses and Other Benefits through the
Termination Date. Such amounts shall be paid to Executive in a lump sum in cash
within sixty (60) days after the date of termination.
(F) DIRECTOR POSITIONS. Executive agrees that upon termination
of employment, for any reason, at the request of the Chairman of the Board,
Executive will immediately tender his resignation from any and all Board
positions held with the Company and/or any of its Affiliates.
5. NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY. At the
inception of this employment relationship, and continuing on an ongoing basis,
the Company agrees to give Executive access to Confidential Information
(including, without limitation, Confidential Information, as defined below, of
the Company's Affiliates) which the Executive has not had access to or knowledge
of before the execution of this Agreement. At the time this Agreement is made,
the Company agrees to provide Executive with initial and ongoing Specialized
Training, which Executive has not had access to or knowledge of before the
execution of this Agreement. "Specialized Training" includes the training the
Company provides to its employees that is unique to its business and enhances
Executive's ability to perform Executive's job duties effectively. Specialized
Training includes, without limitation, orientation training; sales
methods/techniques training; operation methods training; and computer and
systems training.
(A) NON-COMPETITION DURING EMPLOYMENT. Executive agrees that,
in consideration for the Company's promise to provide Executive with
Confidential Information and Specialized Training, during the Basic Term, he
will not compete with the Company by engaging in the conception, design,
development, production, marketing, or servicing of any product or service that
is substantially similar to the products or services which the Company provides,
and that he will not work for, in any capacity, assist, or become affiliated
with as an owner, partner, etc., either directly or indirectly, any individual
or business which offers or performs services, or offers or provides products
substantially similar to the services and products provided by Company,
provided, Executive shall not be prevented from owning no more than 2% of any
company whose stock is publicly traded.
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(B) CONFLICTS OF INTEREST. Executive agrees that during the
Basic Term, he will not engage, either directly or indirectly, in any activity
(a "Conflict of Interest") which might adversely affect the Company or its
affiliates, including ownership of a material interest in any supplier,
contractor, distributor, subcontractor, customer or other entity with which the
Company does business or accepting any material payment, service, loan, gift,
trip, entertainment, or other favor from a supplier, contractor, distributor,
subcontractor, customer or other entity with which the Company does business,
and that Executive will promptly inform the Chief Executive Officer of the
Company as to each offer received by Executive to engage in any such activity.
Executive further agrees to disclose to the Company any other facts of which
Executive becomes aware which in Executive's good faith judgment could
reasonably be expected to involve or give rise to a Conflict of Interest or
potential Conflict of Interest.
(C) NON-COMPETITION AFTER TERMINATION. Executive agrees that
in order to protect the Company's Confidential Information, it is necessary to
enter into the following restrictive covenant, which is ancillary to the
enforceable promises between the Company and Executive otherwise contained in
this Agreement. Executive agrees that Executive shall not, at any time during
the period of one (1) years after termination for any reason, within any of the
markets in which the Company has sold products or services or formulated a plan
to sell products or services into a market during the last twelve (12) months of
Executive's employ or which the Company enters into within three (3) months
thereafter, engage in or contribute Executive's knowledge to any work which is
competitive with or similar to a product, process, apparatus, service, or
development on which Executive worked or with respect to which Executive had
access to Confidential Information or Specialized Training while employed by the
Company. Following the expiration of said one (1) year period, Executive shall
continue to be obligated under the Confidential Information paragraph of this
Agreement not to use or to disclose Confidential Information of the Company so
long as it shall not be publicly available. It is understood that the
geographical area set forth in this covenant is divisible so that if this clause
is invalid or unenforceable in an included geographic area, that area is
severable and the clause remains in effect for the remaining included geographic
areas in which the clause is valid.
(D) CONFIDENTIAL INFORMATION. Executive agrees that he will
not, except as the Company may otherwise consent or direct in writing, reveal or
disclose, sell, use, lecture upon, publish or otherwise disclose to any third
party any Confidential Information or proprietary information of the Company, or
authorize anyone else to do these things at any time either during or subsequent
to his employment with the Company. This paragraph shall continue in full force
and effect after termination of Executive's employment and after the termination
of this Agreement. Executive's obligations under this Paragraph with respect to
any specific Confidential Information and proprietary information shall cease
when that specific portion of the Confidential Information and proprietary
information becomes publicly known, in its entirety and without combining
portions of such information obtained separately. It is understood that such
Confidential Information and proprietary information of the Company include
matters that Executive conceives or develops, as well as matters Executive
learns from other employees of the Company. "Confidential Information" is
defined to include information: (1) disclosed to or known by the Executive as a
consequence of or through his employment with the Company; (2) not generally
known outside the Company; and (3) which relates to any aspect of the Company or
its business, finances, operation plans, budgets, research, or strategic
development. "Confidential Information" includes, but is not limited to the
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Company's trade secrets, proprietary information, financial documents, long
range plans, customer lists, employer compensation, marketing strategy, data
bases, costing data, computer software developed by the Company, investments
made by the Company, and any information provided to the Company by a third
party under restrictions against disclosure or use by the Company or others.
(E) NON-SOLICITATION. To protect the Company's Confidential
Information, and in the event of Executive's termination of employment for any
reason whatsoever, whether by Executive or the Company, it is necessary to enter
into the following restrictive covenant, which is ancillary to the enforceable
promises between the Company and Executive otherwise contained in this
Agreement. Executive covenants and agrees that for a period of two (2) years
after termination of employment (for any reason), Executive will not, directly
or indirectly, either individually or as a principal, partner, agent,
consultant, contractor, employee or as a director or officer of any corporation
or association, or in any other manner or capacity whatsoever, except on behalf
of the Company, solicit business, or attempt to solicit business, and products
or services competitive with products or services sold by the Company, from the
Company's clients or customers, or those individuals or entities with whom the
Company did business during Executive's employment, including, without
limitation, the Company's perspective or potential customers or clients.
Executive agrees that during Executive's employment and for a period of two (2)
years from the date of any termination of Executive's employment for any reason,
Executive will not, either directly or indirectly, or by acting in concert with
others, solicit or influence any Company employee to leave the Company's
employment.
(F) RETURN OF DOCUMENTS, EQUIPMENT, ETC. All writings,
records, and other documents and things comprising, containing, describing,
discussing, explaining, or evidencing any Confidential Information, and all
equipment, components, parts, tools, and the like in Executive's custody or
possession that have been obtained or prepared in the course of Executive's
employment with the Company shall be the exclusive property of the Company,
shall not be copied and/or removed from the premises of the Company, except in
pursuit of the business of the Company, and shall be delivered to the Company,
without Executive retaining any copies, upon notification of the termination of
Executive's employment or at any other time requested by the Company. The
Company shall have the right to retain, access, and inspect all property of
Executive of any kind in the office, work area, and on the premises of the
Company upon termination of Executive's employment and at any time during
employment by the Company to ensure compliance with the terms of this Agreement.
(G) REAFFIRM OBLIGATIONS. Upon termination of Executive's
employment with the Company, Executive, if requested by Company, shall reaffirm
in writing Executive's recognition of the importance of maintaining the
confidentiality of the Company's Confidential Information and proprietary
information, and reaffirm any other obligations set forth in this Agreement.
(H) PRIOR DISCLOSURE. Executive represents and warrants that
Executive has not used or disclosed any Confidential Information he may have
obtained from the Company prior to signing this Agreement, in any way
inconsistent with the provisions of this Agreement.
(I) NO PREVIOUS RESTRICTIVE AGREEMENTS. Executive represents
that, except as disclosed in writing to the Company, Executive is not bound by
the terms of any agreement with any
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previous employer or other party to refrain from using or disclosing any trade
secret or confidential or proprietary information in the course of Executive's
employment by the Company or to refrain from competing, directly or indirectly,
with the business of such previous employer or any other party. Executive
further represents that Executive's performance of all the terms of this
Agreement and Executive's work duties for the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by Executive in confidence or in trust prior to Executive's
employment with the Company, and Executive will not disclose to the Company or
induce the Company to use any confidential or proprietary information or
material belonging to any previous employer or other party.
(J) BREACH. Executive agrees that any breach of Paragraphs
5(a) through (f) above cannot be remedied solely by money damages, and that in
addition to any other remedies Company may have, Company is entitled to obtain
injunctive relief against Executive. Nothing herein, however, shall be construed
as limiting the Company's right to pursue any other available remedy at law or
in equity, including recovery of damages and termination of this Agreement
and/or any payments that may be due pursuant to this Agreement.
(K) RIGHT TO ENTER AGREEMENT. Executive represents and
covenants to the Company that he has full power and authority to enter into this
Agreement and that the execution of this Agreement will not breach or constitute
a default of any other agreement or contract to which he is a party or by which
he is bound.
(L) ENFORCEABILITY. The agreements contained in this Section 5
are independent of the other agreements contained herein. Accordingly, failure
of the Company to comply with any of its obligations outside of this Section do
not excuse Executive from complying with the agreements contained herein.
(M) SURVIVABILITY. The agreements contained in this Section 5
shall survive the termination of this Agreement for any reason.
(N) REFORMATION. If a court concludes that any time period or
the geographic area specified in Section 5(c) or 5(e) of this Agreement are
unenforceable, then the time period will be reduced by the number of months, or
the geographic area will be reduced by the elimination of the overbroad portion,
or both, so that the restrictions may be enforced in the geographic area and for
the time to the fullest extent permitted by law.
6. ASSIGNMENT. This Agreement cannot be assigned by Executive. The
Company may assign this Agreement only to a successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and assets of the Company provided such
successor expressly agrees in writing reasonably satisfactory to Executive to
assume and perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession and assignment
had taken place. Failure of the Company to obtain such written agreement prior
to the effectiveness of any such succession shall be a material breach of this
Agreement.
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7. BINDING AGREEMENT. Executive understands that his obligations under
this Agreement are binding upon Executive's heirs, successors, personal
representatives, and legal representatives.
8. NOTICES. All notices pursuant to this Agreement shall be in writing
and sent certified mail, return receipt requested, addressed as set forth below,
or by delivering the same in person to such party, or by transmission by
facsimile to the number set forth below (which shall not constitute notice).
Notice deposited in the United States Mail, mailed in the manner described
hereinabove, shall be effective upon deposit. Notice given in any other manner
shall be effective only if and when received:
If to Executive: Xxxxxxxxxxx X. Xxxxxx
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Fax: 000 000 0000
If to Company: HCC Insurance Holdings, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall Xxxxxx X. Xxxxxx, Esq.
not constitute notice) to: Xxxxxx and Xxxxx, LLP
0000 Xxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
9. WAIVER. No waiver by either party to this Agreement of any right to
enforce any term or condition of this Agreement, or of any breach hereof, shall
be deemed a waiver of such right in the future or of any other right or remedy
available under this Agreement.
10. SEVERABILITY. If any provision of this Agreement is determined to
be void, invalid, unenforceable, or against public policy, such provisions shall
be deemed severable from the Agreement, and the remaining provisions of the
Agreement will remain unaffected and in full force and effect.
11. ENTIRE AGREEMENT. The terms and provisions contained herein shall
constitute the entire agreement between the parties with respect to Executive's
employment with Company during the time period covered by this Agreement. This
Agreement replaces and supersedes any and all existing Agreements entered into
between Executive and the Company relating generally to the same subject matter,
if any, and shall be binding upon Executive's heirs, executors, administrators,
or other legal representatives or assigns.
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12. MODIFICATION OF AGREEMENT. This Agreement may not be changed or
modified or released or discharged or abandoned or otherwise terminated, in
whole or in part, except by an instrument in writing signed by the Executive and
an officer or other authorized executive of Company.
13. UNDERSTAND AGREEMENT. Executive represents and warrants that he has
read and understood each and every provision of this Agreement, and Executive
understands that he has the right to obtain advice from legal counsel of his
choice, if necessary and desired, in order to interpret any and all provisions
of this Agreement, and that Executive has freely and voluntarily entered into
this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
15. JURISDICTION AND VENUE. With respect to any litigation regarding
this Agreement, Executive agrees to venue in the state or federal courts in
Xxxxxx County, Texas, and agrees to waive and does hereby waive any defenses
and/or arguments based upon improper venue and/or lack of personal jurisdiction.
By entering into this Agreement, Executive agrees to personal jurisdiction in
the state and federal courts in Xxxxxx County, Texas.
16. TOLLING. If Executive violates any of the restrictions contained in
Section 5(c) or 5(e), the restrictive period will be suspended and will not run
in favor of Executive from the time of the commencement of any violation until
the time when the Executive cures the violation to the Company's satisfaction.
REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the Parties have executed this Agreement in
multiple copies, effective as of the date first written above.
EXECUTIVE COMPANY
HCC INSURANCE HOLDINGS, INC.
/s/ Xxxxxxxxxxx X. Xxxxxx By:/s/ Xxxxxxx X. Way
---------------------------- ---------------------------
XXXXXXXXXXX X. XXXXXX XXXXXXX X. WAY, Chief
Executive Officer
Dated: March 26, 2003 Dated: March 26, 2003
---------------------- --------------------------
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT
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APPENDIX 1
1. Executive shall be employed as an Executive Vice President General Councel
of the Company.
2. Dues paid at The Houstonian.
3. Car allowance of $750 per month.
