exv10w1







Exhibit 10.1




SEPARATION AGREEMENT




This Separation Agreement (this “Agreement”) by and between HealthMarkets, Inc., a Delaware
corporation (the “Company”), and Jack V. Heller (the “Executive”), is dated as of November 3, 2011
(the “Effective Date”).



WHEREAS, the Executive had been employed by the Company as Senior Vice President and Chief
Distribution Officer; and



WHEREAS, effective September 15, 2011 (the “Termination Date”), the Executive’s employment as
the Company’s Senior Vice President and Chief Distribution Officer, and service in all other
positions the Executive held as an officer or member of the board of directors of any of the
Company’s Subsidiaries or affiliates, terminated; and



WHEREAS, the Company and the Executive are parties to an employment agreement dated as of
December 18, 2006, as amended September 10, 2009 (the “Employment Agreement”) (all capitalized
terms not defined herein shall have the meanings ascribed to them in Section 23 of the Employment
Agreement),



NOW, THEREFORE, the Company and the Executive hereby agree as follows:



1. Termination. Effective the Termination Date, the Executive’s employment with the
Company terminated. The parties agree that the termination of the Executive’s employment
constitutes a “separation from service” within the meaning of Section 409A of the Code.



2. Termination Payments and Arrangements.



(a) Subject to the Executive’s execution and non-revocation of the release of claims against
the Company attached hereto as Exhibit A (the “Release”) within 35 days following the
Effective Date and the Executive’s continued compliance with the Restrictive Covenants in
accordance with Sections 11 and 12 of the Employment Agreement (collectively, the “Payment
Conditions”), the Executive shall be entitled to receive $600,000.00 (less applicable
withholdings), payable in equal installments in accordance with the Company’s regular payroll
schedule over the twelve month period beginning on the Termination Date, provided,
however, that the first installment shall be paid manually (rather than on the Company’s
regular payroll schedule) within three (3) business days of the expiration of the seven-day
revocation period set forth in the Release.



(b) Any payments or benefits under the executive retention program adopted by the Company on
or about June 29, 2010 (the “Retention Program”) were forfeited on the Termination Date;
provided, however, that the Executive shall not be required to refund to the Company any payments
under the Retention Program made to the Executive prior to the Termination Date.



(c) All outstanding Option Rights held by the Executive, whether vested or unvested, are
forfeited as of the Effective Date.


 


 









 





(d) All Restricted Shares, to the extent not already vested, are forfeited as of the
Effective Date. The parties acknowledge that, as a result of prior vesting, the Executive owns
22,065 shares of the Company’s Class A-1 common stock which are not subject to forfeiture.



(e) The parties acknowledge that the Executive owns 28,180 shares of the Company’s Class A-2
stock (the “A-2 Shares”) as a result of a prior distribution from the Executive’s account(s) in
the HealthMarkets, Inc. InVest Stock Ownership Plan (“ISOP”) or Predecessor Plans (as defined in
the ISOP). Subject to the Payment Conditions, following the expiration of the one-year period
immediately following the Termination Date, upon written request by the Executive, the Company
agrees to purchase the A-2 Shares at the Fair Market Value (as defined in the Stockholders
Agreement) of the A-2 Shares in effect on the date of such purchase.



(f) Subject to the Payment Conditions, the Company shall cause The MEGA Life and Health
Insurance Company (“MEGA”) to pay any commission payments to which the Executive has an ongoing
right under the terms of the Independent Insurance Agent Commission-Only Contract between the
Executive and MEGA dated December 22, 2005 (the “Agent Agreement”) in accordance with the terms
and conditions of the Agent Agreement; provided however, that such commission payments shall be
calculated using the bonus table (rather than the base table) and shall not be subject to a five
percent (5%) administrative fee.



(g) Subject to the Payment Conditions, the Company shall pay the Executive’s legal counsel
directly for the reasonable fees and expenses incurred by the Executive in the review and
negotiation of this Agreement, subject to a cap of $5,000.00. The Company shall pay such amounts
to the Executive’s legal counsel promptly following receipt of an invoice documenting such fees
and expenses.



(h) Subject to the Payment Conditions, the Company shall pay the Executive $36,982.19 in a
lump sum single payment that will accompany the first payment made under Section 2(a) above.
This amount represents the equivalent of (a) Twenty-Four (24) months of the Company premium
payment for continued medical, prescription drug, and dental coverage for the number of insureds
and at the level of benefits that the Executive elected to receive immediately prior to the
Termination Date plus (b) a tax gross up for applicable federal income tax and Medicare tax
withholdings.



(i) The payments and benefits provided under this Section 2 shall be in full satisfaction of
the Company’s obligations to the Executive upon his termination of employment, and, subject to
the aforesaid, the Executive shall not be entitled to any other payments or benefits (or other
damages in respect of a termination or claim for breach of this Agreement) beyond those specified
in this Section 2.



Any payments under this Section 2 to the Executive shall not be taken into account for
purposes of any retirement plan (including any supplemental retirement plan or arrangement) or
other benefit plan sponsored by the Company, except as otherwise expressly required by such plans
or applicable law.


 


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3. Nondisparagement.



(a) On and after the Termination Date, the Executive agrees that he shall not make,
participate in the making of, or encourage or facilitate any other person to make, any
statements, written or oral, which criticize, disparage, or defame the goodwill or reputation of,
the Company, its Subsidiaries or affiliates or any of their respective present or former
directors, officers, employees as a group, The Blackstone Group, Goldman Sachs & Co. and/or DLJ
Merchant Banking Partners. Notwithstanding the foregoing, nothing in this Section 3(a) shall
prohibit the Executive from making truthful statements when required by order of a court or other
body having jurisdiction, or as otherwise may be required by law or legal process or in order to
enforce the applicable parties’ rights under this Agreement.



(b) On and after the Termination Date, the Company agrees that it shall not make,
participate in the making of, or encourage or facilitate any other person to make, any
statements, written or oral, which criticize, disparage, or defame the goodwill or reputation of,
the Executive. For purposes of the preceding sentence, the actions of the “Company” shall be
limited to, and the Company will be deemed to act solely through, its Chief Executive Officer,
members of its Board of Directors and officers of the Company who are its legally authorized
speaking agents, as defined by applicable law. Notwithstanding the foregoing, nothing in this
Section 3(b) shall prohibit the Company from making truthful statements when required by order of
a court or other body having jurisdiction, in response to inquiries from regulators or
governmental authorities having jurisdiction, in response to inquiries from counterparties with a
right to receive the information requested or as otherwise may be required by law, legal process,
in order to maintain legal, regulatory or contract compliance, or in order to enforce the
applicable parties’ rights under this Agreement.



(c) The Company will provide no form of employment reference. If a prospective employer of
the Executive contacts the Company for an employment reference, the Company will follow its
customary practice of declining to provide an employment reference, other than to confirm the
Executive’s dates of employment and last position.



4. Confidentiality; Return of Property. On and after the Termination Date, the
Executive shall continue to be subject to the confidentiality provisions and return of property
provisions set forth in Section 11 of the Employment Agreement, which provisions are incorporated
by reference in this Agreement and shall remain in full force and effect. The Executive represents
that, as of the date hereof, he has delivered to the Company any and all of the confidential and
proprietary information in the Executive’s possession or under the Executive’s control. The
Executive further represents that the Executive has returned all Company property in the
Executive’s possession to the Company, including, but not limited, to any keys, computers, credit
cards, documents, cell phones or personal data assistants.



5. Restrictive Covenants. The Executive shall continue to be bound by the covenant
not to compete and the covenant not to solicit for the one-year period immediately following the
Termination Date as set forth in Section 12 of the Employment Agreement, which provisions are
incorporated by reference in this Agreement and shall remain in full force and effect.


 


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6. Remedies. The Executive acknowledges and agrees that the violation of Section 3,
Section 4 and/or Section 5 above would result in a material detriment to the Company and would
cause irreparable harm to the Company, and that the Company’s remedy at law for any such violation
would be inadequate. In recognition of the foregoing, the Executive agrees that, in addition to
any relief afforded by law or this Agreement, including damages sustained by a breach of this
Agreement and without the necessity of proof of actual damages, the Company shall have the right to
enforce this Agreement by specific remedies, which shall include, among other things, temporary and
permanent injunctions, it being the understanding of the undersigned parties hereto that damages
and injunctions all shall be proper modes of relief and are not to be considered as alternative
remedies.



7. Compliance with Section 409A of the Code. Notwithstanding other provisions of this
Agreement, the provisions relating to Section 409A of the Code set forth in Section 13 of the
Employment Agreement are incorporated by reference in this Agreement and shall remain in full force
and effect. As of the date hereof, the Company believes that the payments, benefits and
entitlements under this Agreement are compliant with Section 409A of the Code. Notwithstanding the
foregoing, the Company shall in no event be obligated to indemnify the Executive for any taxes or
interest that may be assessed by the Internal Revenue Service pursuant to Section 409A of the Code.



8. Entire Agreement. As of the date hereof, this Agreement, along with the sections of
the Employment Agreement explicitly referenced herein, sets forth the entire agreement of the
Company and the Executive with respect to the subject matter hereof, and, as of the Termination
Date, supersedes in its entirety, except with respect to the sections explicitly referenced herein,
the Employment Agreement, any severance plan, policy or arrangement of the Company, and the terms
and conditions of the executive retention program. Without limiting the generality of the
foregoing, the Executive expressly acknowledges and agrees that except as specifically set forth in
Section 2 of this Agreement, he is not entitled to receive any severance pay, severance benefits,
compensation or employee benefits of any kind whatsoever from the Company on and after the
Termination Date.



9. Successors. Notwithstanding the other provisions of this Agreement, the provisions
of Section 16 of the Employment Agreement are incorporated by reference in this Agreement and shall
remain in full force and effect; provided, however, that any reference to “this
Agreement” in such Section 16 shall mean this Separation Agreement.



10. Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such State.



11. Notices. For all purposes of this Agreement, all communications, including,
without limitation, notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof confirmed), or five (5)
business days after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid, or three (3) business days after having been sent by a
nationally recognized overnight courier service such as Federal Express, UPS, or Purolator,
addressed to the Company (to the attention of the Secretary of the Company) at its principal
executive offices and to the Executive at his principal residence, or to such other address as any
party may have furnished to the other in writing and in accordance herewith, except that notices of
changes of address shall be effective only upon receipt.


 


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12. Severability. In the event that any provision of this Agreement should be held to
be invalid or unenforceable, each and all of the other provisions of this Agreement shall remain in
full force and effect and such invalid or unenforceable provision shall be modified as necessary to
preserve the parties intent and to permit this Agreement to be enforced to the maximum extent
permitted by law.



13. Withholding of Taxes. The tax withholding and other provisions set forth in
Section 15 of the Employment Agreement are incorporated by reference in this Agreement and shall
remain in full force and effect.



14. Amendment. This Agreement may not be modified, amended or waived in any manner,
except by an instrument in writing signed by the parties hereto.



15. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company specifically referencing such provision being so modified, waived or
discharged (provided that in the case of any waiver or discharge such waiver or discharge shall
only need to be in a writing signed by the party against whom the waiver or discharge is being
enforced). No waiver by either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. The captions used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of interpreting any provision of this
Agreement. For the avoidance of doubt, any reference to an “affiliate” of the Company or any
Subsidiary shall not include any investor in the Company or any entity in which such investor owns
or holds an equity position (other than the Company or any Subsidiary).



16. Counterparts. This Agreement may be executed in one or more counterparts,
including by facsimile signature, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.



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IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date
first set forth above.



	 	 	 	 	 
	 	 	 
	 	


 	 
	 	Jack V. Heller 	 
	 	 	 
	 
	 	HealthMarkets, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


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Exhibit A




Release



In consideration of the payments and promises contained in your Separation Agreement with
HealthMarkets, Inc. (the “Company”) dated as of November 3, 2011 (the “Separation Agreement”), and
in full compromise and settlement of any of your potential claims and causes of action relating to
or arising out of your employment relationship with the Company or the termination of that
relationship, and any and all other claims or causes of action that you have or may have against
the Company Affiliates (as defined below) up to the date of execution of this release, except to
the extent such claims or causes of action are not released by you in Paragraph 2 hereof (the
“Release”), you hereby:



1. knowingly and voluntarily agree to irrevocably and unconditionally waive and release the
Company and any other entity controlled by, controlling or under common control with the Company,
and their respective predecessors and successors and their respective directors, officers,
employees, representatives, attorneys, including all persons acting by, through, under or in
concert with any of them (collectively, the “Company Affiliates”), from any and all charges,
complaints, claims, liabilities, obligations, promises, sums of money, agreements, controversies,
damages, actions, lawsuits, rights, demands, sanctions, costs (including attorneys’ fees), losses,
debts and expenses of any nature whatsoever, existing on, or at any time prior to, the date hereof
in law, in equity or otherwise, which you, your successors, heirs or assigns had or have upon or by
reason of any fact, matter, cause, or thing whatsoever, and specifically including any matter that
may be based on the sole or contributory negligence (whether active, passive or gross) of any
Company Affiliate. This Release includes, but is not limited to, a release of all claims or causes
of action arising out of or relating to your employer-employee relationship with the Company or the
termination of that relationship, and any other claim, including, without limitation, alleged
breach of express or implied written or oral contract, alleged breach of employee handbook, alleged
wrongful discharge, and tort claims, or claims or causes of action arising under any federal,
state, or local law, including, but not limited to, the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq., the Reconstruction Era Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981
and 1983, the Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000(e) et seq., The Civil Rights
Act of 1991, 42 U.S.C. § 1981(a) et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d) et seq.,
the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§
2101-2109, the Sarbanes-Oxley Act of 2002, as amended, and any claim under any other statutes of
the State of Delaware, or other jurisdictions, and the facts, circumstances, allegations, and
controversies relating or giving rise thereto that have accrued to the date of execution of this
Release;



2. agree that you will not commence, maintain, initiate, or prosecute, or cause, encourage,
assist, volunteer, advise or cooperate with any other person to commence, maintain, initiate or
prosecute, any action, lawsuit, proceeding, investigation, or claim before any court, legislative
body or committee, or administrative agency (whether state, federal or otherwise) against the
Company Affiliates relating to any claims, liabilities, obligations, promises, sums of money,
agreements, controversies, damages, actions, lawsuits, rights, demands, sanctions, costs (including
attorneys’ fees), losses, debts and expenses described in the foregoing Paragraph 1;


 


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provided, however, that, notwithstanding anything to the contrary in the
foregoing, nothing hereunder (including Paragraph 1 hereof) shall be deemed to affect, impair or
diminish in any respect (or deemed to be a release by you of any claims or an agreement not to sue
or bring an action with respect to): (i) any vested rights as of the date of termination of
employment or entitlement you may have under the HealthMarkets 401(k) and Savings Plan; (ii) any
other vested rights as of the date of termination of employment you may have under any plan or
program in which you have participated in your capacity as an employee and/or director of the
Company or any other Company Affiliate; (iii) your right to seek to collect unemployment benefits
that you may be entitled to as a result of your employment with the Company or your right to seek
benefits under workers’ compensation insurance, if applicable; (iv) your rights to enforce this
Release or the Separation Agreement, including but not limited to your right to bring a claim for
breach of this Release or the Separation Agreement; (v) any rights to indemnification and/or
advancement of expenses that you have or may have under the terms of the Company’s Amended and
Restated Bylaws and/or the Company’s Certificate of Incorporation or any rights you have pursuant
to any applicable directors’ and officers’ liability insurance policies; (vi) your rights as a
shareholder of the Company; or (vii) your right to bring a claim under the Age Discrimination in
Employment Act to challenge the validity of this Release, to file a charge under the civil rights
statutes, or to otherwise participate in an investigation or proceeding conducted by the Equal
Employment Opportunity Commission or other investigative agency;




3. acknowledge that: (i) this entire Release is written in a manner calculated to be
understood by you; (ii) you have been advised to consult with an attorney before executing this
Release; (iii) you were given a period of at least twenty-one days within which to consider this
Release; and (iv) to the extent you execute this Release before the expiration of the
twenty-one-day period, you do so knowingly and voluntarily and only after consulting your attorney.
You shall have the right to cancel and revoke this Release during a period of seven days following
the date on which you execute it, and this Release shall not become effective until the day after
the expiration of such seven-day period (the “Revocation Date”). In order to revoke this Release,
you shall deliver to the Company, prior to the expiration of said seven-day period, a written
notice of revocation. Upon such revocation, this Release shall be null and void and of no further
force or effect;



4. agree to make yourself reasonably available to the Company following the date of your
termination to assist the Company and its subsidiaries and affiliates and their respective
predecessors and successors, as may be requested by the Company at mutually convenient times and
places taking into account your other business and personal commitments, with respect to the
business of the Company and pending and future litigations, arbitrations, governmental
investigations or other dispute resolutions relating to or in connection with the Company with
respect to matters of which you have relevant knowledge. Notwithstanding the foregoing, you shall
not be required to cooperate if such cooperation is adverse to your legal interests. In addition,
the Company agrees to pay promptly any reasonable expenses incurred by you in connection with such
cooperation, including, without limitation, airfare, reasonable meals, reasonable hotels and
reasonable legal fees to the extent the Company and you agree (the Company’s agreement not to be
unreasonably withheld) separate representation is warranted by the circumstances.


 


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5. agree not to, either in writing or by any other medium, make any disparaging or derogatory
statement about the Company and its affiliates and subsidiaries and their respective predecessors
and successors or any of their respective officers, directors, employees, affiliates, subsidiaries,
successors, assigns or businesses, as the case may be; provided, however, that you
may make such statements as are necessary to comply with law and the foregoing shall not prohibit
you from making any truthful statements that are necessary to defend yourself in an arbitration or
judicial proceeding.



	 	 	 	 	 
	 	
 	 
	 	Jack V. Heller 	 
	 	 	 
	 	HealthMarkets, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


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