SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
Argo Group International Holdings, Ltd. (the “Company”) and I, Xxxxxxx X. Xxxxxx, agree as follows:
I. Separation Benefits
| A. | In General: The Company promises that, within fourteen (14) business days after I sign this Separation Agreement and General Release, I will receive the consideration and benefits set forth in this Section that are conditioned on my execution of this Agreement. I may revoke this Agreement within seven (7) days after I sign it, in which case I will not receive the consideration and benefits that are conditioned on my execution of this Agreement. I acknowledge that the Company is not otherwise required to provide me with the consideration and benefits set forth in this Section. This Agreement will not become effective or enforceable unless and until the seven-day revocation period has expired without my revoking it. |
| B. | Executive Employment Agreement: The Company and I agree that my Executive Employment Agreement with the Company dated March 10, 2011 (the “Executive Employment Agreement”) is hereby terminated and superseded by this Agreement. |
| C. | Sufficiency of Consideration: I acknowledge and agree that the consideration and benefits to be provided under the terms of the Agreement are, in significant and substantial part, in addition to those benefits to which I am otherwise entitled. |
| D. | Pro Rata Repayment of Signing Bonus / Stock Award: I agree to repay to the Company the amount of $93,000, as required under a letter agreement dated March 10, 2011 between me and the Company executed in conjunction with my Executive Employment Agreement (the “Letter Agreement”), on or before June 15, 2013. The Company agrees that I will remain an employee of the Company through June 15, 2013 so that the second installment of 3,205 of the 9,615 restricted shares that were granted to me pursuant to the Letter Agreement will vest. I further agree that the final installment of 3,205 restricted shares granted to me pursuant to the Letter Agreement scheduled to vest on March 10, 2014 will be forfeited due to the termination of my employment with the Company. |
| E. | Compensation and Benefit Plans: I will cease to be eligible to participate under any applicable stock option, bonus, incentive compensation, medical, dental, life insurance, retirement, and other compensation or benefit plans of the Company following my termination of employment. Thereafter, I will have no rights under any of those plans, except as follows: |
| 1. | I will receive all compensation earned through the date of my termination, June 15, 2013. |
| 2. | I will receive payment for my unused accrued vacation days. |
| 3. | The Company will pay the employer portion of all previously elected health benefits through September 15, 2013, unless I become eligible for health benefits from another employer prior to that date. |
| 4. | I will have the right to COBRA continuation coverage as to any Company-provided medical, dental, vision, or flex spending plan in which I participate, which means that I will be entitled to buy continued health plan coverage under the normal COBRA health care continuation rules. |
| 5. | I will retain my vested benefits under all applicable qualified and non-qualified retirement plans of the Company, and all rights associated with such benefits, as determined under the official terms of those plans. |
II. Complete Release
| A. | In General: In exchange for the Company’s promises contained in this Agreement, I agree to irrevocably and unconditionally release any and all Claims I may now have against the Company and other parties as set forth in this Section II. |
| B. | Released Parties: The Released Parties are the Company, all related companies, partnerships, or joint ventures, and, with respect to each of them, their predecessors and successors; and, with respect to each such entity, all of its past and present employees, officers, directors, stockholders, owners, representatives, assigns, attorneys, agents, insurers, employee benefit programs (and the trustees, administrators, fiduciaries, and insurers of such programs), and any other persons acting by, through, under or in concert with any of the persons or entities listed in this subsection (the “Released Parties” and each a “Released Party”). |
| C. | Claims Released: I understand and agree that I am releasing all known and unknown claims, promises, causes of action, or similar rights of any type that I may have (the “Claims”) against any Released Party, except that I am not releasing any claim that relates to: (i) my right to enforce this Agreement; (ii) my right, if any, to claim government-provided unemployment benefits, or (iii) any rights or claims which may arise or accrue after I sign this Agreement). I further understand that the Claims I am releasing may arise under many different laws (including statutes, regulations, other administrative guidance, and common law doctrines), including, but by no means limited to: |
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| 1. | Anti-discrimination statutes, such as the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, and Executive Order 11141, which prohibit age discrimination in employment; Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, and Executive Order 11246, which prohibit discrimination based on race, color, national origin, religion, or sex; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; the Americans With Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit discrimination based on disability; and any other federal, state, or local laws prohibiting employment or wage discrimination. |
| 2. | Federal employment statutes, such as the WARN Act, which requires that advance notice be given of certain work force reductions; the Employee Retirement Income Security Act of 1974, which, among other things, protects employee benefits; the Fair Labor Standards Act of 1938 and state laws which regulates wage and hour matters; the Family and Medical Leave Act of 1993, which requires employers to provide leaves of absence under certain circumstances; and any other federal laws relating to employment, such as veterans’ reemployment rights laws. |
| 3. | Other laws, such as any federal, state, or local laws providing workers’ compensation benefits (or prohibiting workers’ compensation retaliation), restricting an employer’s right to terminate employees, or otherwise regulating employment; any federal, state, or local law enforcing express or implied employment contracts or requiring an employer to deal with employees fairly or in good faith. |
| 4. | Tort and Contract Claims, such as claims for wrongful discharge, negligence, negligent hiring, negligent supervision, negligent retention, physical or personal injury, emotional distress, fraud, fraud in the inducement, negligent misrepresentation, defamation, invasion of privacy, interference with contract or with prospective economic advantage, breach of express or implied contract, breach of covenants of good faith and fair dealing, promissory estoppel, and similar or related claims. |
| 5. | Examples of released Claims include, but are not limited to: (i) Claims that in any way relate to my employment with the Company or any other Released Party, or the termination of that employment, such as Claims for compensation, bonuses, commissions, lost wages, or unused accrued vacation or sick pay; (ii) Claims that in any way relate to the design or administration of any employee benefit program; (iii) Claims that I have irrevocable or vested rights to severance or similar benefits or to post-employment health or group insurance benefits; or (iv) any Claims to attorneys’ fees or other indemnities. |
| D. | Unknown Claims: I understand that I am releasing Claims that I may not know about through the date of this Agreement. It is my knowing and voluntary intent, to release all known and unknown Claims, through the date of this Agreement, I am assuming the risk of releasing such claims through the date of this Agreement and I agree that this Agreement shall remain effective in all respects in any such case. I expressly waive all rights I might have under law that is intended to protect me from waiving unknown claims and understand the significance of doing so. |
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III. Promises
| A. | Employment Termination: I understand and agree that my employment with the Company will terminate on June 15, 2013. I also understand and agree that I have no right of rehire or reinstatement with any Released Party, regardless of location, and that the Released Party is under no obligation to rehire or reinstate me. I also acknowledge and understand that the failure of a Released Party to rehire or reinstate me is contractual and is in no way discriminatory or retaliatory in nature. |
| B. | Pursuit of Released Claims: I have not filed or caused to be filed any lawsuit, complaint, or charge with respect to any Claim this Agreement purports to waive, and I promise never to file or prosecute a lawsuit or complaint based on such Claims. I promise never to seek any damages, remedies, or other relief for myself personally (any right to which I hereby waive) by filing or prosecuting a charge with any administrative agency with respect to any such Claim. I promise to request any government agency or other body assuming jurisdiction of any such lawsuit, complaint, or charge to withdraw from the matter or dismiss the matter with prejudice. |
| C. | Company Property: I promise to return to the Company all files, memoranda, documents, records, electronic records, software, copies of the foregoing, credit cards, keys, and any other property of the Company or its affiliates in my possession. Notwithstanding the above, the Company agrees that I will retain my phone number, 000-000-0000, my electronic calendar and contact list, and other personal items from my offices in London and Bermuda. |
| D. | Taxes: I am responsible for paying any taxes on amounts I receive because I signed this Release. I agree that the Company may withhold all taxes it is legally required to withhold, except as expressly otherwise provided in Section I. |
| E. | Ownership of Claims: I have not assigned or transferred any Claim I am releasing, nor have I purported to do so. |
| F. | Implementation: I agree to sign any documents and do anything else that is necessary in the future to implement this Agreement. |
| G. | Age Representation: I am over the age forty at the time of signing this Agreement. |
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| H. | Confidential Information: I hereby acknowledge that during the course of my employment, up through the time that my employment terminated, I gained knowledge or information of a confidential nature in which the Company has a proprietary interest. I accordingly agree not to disclose to any person or any entity any such confidential, proprietary, or trade secret information of or about the Company without the express written authorization and consent from the Company. Such confidential and proprietary information includes any non-public information relating to the Company’s products, services, technology and business affairs, including without limitation, any and all concepts, advertising information, techniques, processes, designs, trade secrets, business methods, cost data, computer programs, software, scientific or technical know-how, financial, marketing, manufacturing processes, research developments, business activities and operations, inventions, customer or client lists, industrial practices, financial statements and/or other business information, or any information that the Company specifically refers to as confidential information or labels as confidential information. |
| I. | Restrictive Covenants: During the period of one (1) year following the termination of my employment I shall not: |
| A. | Directly or indirectly, for myself or for any other individual, partnership, firm, corporation or other organization (other than the Company or its affiliates) solicit or induce or endeavor to solicit or induce any Restricted Employee (as defined in my Executive Employment Agreement) to cease working for or providing services to the Company, or hire, directly or indirectly, any Restricted Employee, in either case, whether or not any such person would thereby commit a breach of contract. Nothing herein shall prohibit solicitation of any Company Employee (i) who voluntarily terminated his or her employment or engagement at least three months prior to the date such solicitation first commenced or (ii) whose employment or engagement has been terminated by the Company (as opposed to voluntarily by such Company Employee); or |
| B. | Directly or indirectly interfere with Company Services (as defined in my Executive Employment Agreement) with any of the Company’s customers, prospects or clients or induce, or encourage any customer or client to stop doing business with Company or induce or encourage any prospect to not retain the services of Company; or |
| C. | Be directly or indirectly employed or engaged by any of the Company’s designated peers (as set forth on page 26 of the Company’s Proxy Statement filed with the United States Securities & Exchange Commission on March 22, 2013) whose ultimate holding companies are domiciled in the United States or any of their affiliates or subsidiaries either as an officer, director, employee, consultant or otherwise. |
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IV. Breach of Agreement
| A. | I agree to pay the reasonable attorneys’ fees and any damages the Released Parties may incur as a result of my breaching a promise I made in this Agreement, or if any representation I made in this Agreement was false when made. |
| X. | Xxxx agrees to pay the reasonable attorneys’ fees and any damages that I may incur as a result of its breaching a promise made in this Agreement, or if any representation Argo made in this Agreement was false when made. |
V. Review and Revocation
| A. | Review: I acknowledge that I may revoke this Agreement at any time within seven (7) days of the date on which I sign this Agreement. Further, I acknowledge that, before signing this Agreement, I was given a period of twenty-one (21) days in which to consider this Agreement. I further acknowledge that: (a) I took advantage of this period to consider this Agreement before signing it; (b) I carefully read this Agreement; (c) I fully understand it; and (d) I am entering into it voluntarily. I acknowledge that the Company encouraged me to discuss this Agreement with an attorney (at my own expense) before signing it, that I sought such advice to the extent I deemed appropriate. If I sign this Agreement before the end of the twenty-one (21) day period, it will be my voluntary decision to do so because I have decided that I do not need any additional time to decide whether to sign this Agreement. |
| B. | Tender Back Provision: I acknowledge and agree that this Agreement may not be revoked at any time after the expiration of the seven (7) day revocation period described in Section I above and that I will not institute any suit, action or proceeding, whether at law or equity, challenging the enforceability of this Agreement. Should I ever attempt to challenge the terms of this Agreement, attempt to obtain an order declaring this Agreement to be null and void, or institute litigation against the Company or any other Released Party based upon a Claim which is covered by the terms of the release contained in Section II, I will as a condition precedent to such action repay all amounts paid to me or forgiven under the terms of this Agreement. Furthermore, if I do not prevail in an action to challenge this Agreement, to obtain an order declaring this Agreement to be null and void, or in any action against the Company or any other Released Party based upon a Claim which is covered by the release contained in Section II, I shall pay to the Company and/or the appropriate Released Party all their costs and attorneys’ fees incurred in their defense of my action. It is understood and agreed by me and the Company, however, that I shall not be required to repay the amounts paid to me under the terms of this Agreement or pay the Company and/or the appropriate Released Party all their costs and attorneys’ fees incurred in their defense of my action (except those attorneys’ fees or costs specifically authorized under federal or state law) in the event that I seek to challenge my waiver of claims under the Age Discrimination in Employment Act. |
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VI. Miscellaneous
| A. | Entire Agreement: This is the entire agreement between me and the Company. This Agreement may not be modified or canceled in any manner except by a writing signed by both me and an authorized Company official. I acknowledge that the Company has made no representations or promises to me (such as that my former position will remain vacant), other than those in this Release. If any provision in this Agreement is found to be unenforceable, all other provisions will remain fully enforceable. |
| B. | Successors: This Agreement binds my heirs, administrators, representatives, executors, successors, and assigns, and will inure to the benefit of all Released Parties and their respective heirs, administrators, representatives, executors, successors, and assigns. |
| C. | Interpretation: This Agreement shall be construed as a whole according to its fair meaning. It shall not be construed strictly for or against me or any Released Party. Unless the context indicates otherwise, the singular or plural number shall be deemed to include the other. Captions are intended solely for convenience of reference and shall not be used in the interpretation of this Release. |
| D. | Governing Law and Enforcement: This Agreement shall be governed by the statutes and common law of the State of Texas. |
TAKE THIS AGREEMENT HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING IT. IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS. IF YOU WISH, YOU SHOULD TAKE ADVANTAGE OF THE FULL CONSIDERATION PERIOD AFFORDED BY SECTION V AND YOU SHOULD CONSULT YOUR ATTORNEY.
Executed on this 8th day of May, 2013.
| /s/ Xxxxxxx X. Xxxxxx |
| Xxxxxxx X. Xxxxxx |
Executed on this 6th day of May, 2013.
| ARGO GROUP INTERNATIONAL HOLDINGS, LTD. | ||
| By: | /s/ Xxxx X. Xxxxxx III | |
| Title: | President and Chief Executive Officer | |
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