EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.33
This
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
is made
as of August 4, 2006 between CITIZENS FINANCIAL CORPORATION, a Kentucky
corporation (“Employer”),
and
XXXXX
X. XXXXXX III,
an
individual residing in Birmingham, Alabama (“Employee”).
RECITALS
Employer
desires to employ Employee for the Employer Group, and Employee wishes to accept
such employment, upon the terms and conditions set forth in this
Agreement.
AGREEMENT
The
parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For
the
purposes of this Agreement, the following terms have the meanings specified
or
referred to in this Section 1.
“Agreement”
-- this
Executive Employment Agreement, as amended from time to time.
“Base
Salary”
-- as
defined in Section 3.1.
“Benefits”
-- as
defined in Section 3.3.
“Boards
of Directors”
-- the
boards of directors of the constituents of the Employer Group.
“Bonuses”
-- as
defined in Section 3.2.
“Confidential
Information”
-- any
and all:
(a) trade
secrets concerning the business and affairs of the Employer Group, including
without limitation products, past, current, and planned research and
development, current and planned distribution methods and processes, customer
lists, current and anticipated customer requirements, market studies, business
plans, computer software and programs (including object code and source code),
and any other information, however documented, that is a trade secret within
the
meaning of the Uniform Trade Secrets Act, KRS 365.880-.900;
(b) information
concerning the business and affairs of the Employer Group including without
limitation historical internal financial statements, financial projections
and
budgets, historical and projected sales data, the names and backgrounds of
key
personnel, and personnel training and techniques and materials, however
documented; and
(c) notes,
analyses, compilations, studies, summaries, and other material prepared by
or
for the Employer Group containing or based, in whole or in part, on any
information included in the foregoing.
“disability”
-- as
defined in Section 6.2.
“Starting
Date”
--
September 1, 2006.
“Employee”
-- as
defined in the heading of this Agreement.
“Employee
Invention”
-- any
idea, invention, technique, modification, process, or improvement (whether
patentable or not) and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived or developed by Employee,
either solely or in conjunction with others, during the Employment Period,
or a
period that includes a portion of the Employment Period, that relates in any
way
to, or is useful in any manner in, the business then being conducted or proposed
to be conducted by the Employer Group, and any such item created by Employee,
either solely or in conjunction with others, following termination of Employee’s
employment with Employer, that is based upon or uses Confidential
Information.
“Employer”
-- as
defined in the heading of this Agreement.
“Employer
Group”
--
Employer and one or more of the Principal Subsidiaries.
“Employment
Period”
-- the
actual term of Employee’s employment by Employer, beginning on the Starting Date
and terminating as provided herein.
“for
cause”
-- as
defined in Section 6.3.
“for
convenience of Employer”
-- as
defined in Section 6.5.
“for
good reason”
-- as
defined in Section 6.4.
“Nominal
Expiration Date”
--
as
defined in Section 2.2.
“person”
-- any
individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust,
association, organization or governmental body.
“Post-Employment
Limitation Period”
-- as
defined in Section 8.3.
“President
of Employer”
--
Xxxxxxx X. Xxxxx and his successors in office as president of
Employer.
“Presidents
of the Principal Subsidiaries”
-- the
person or persons who are from time to time the presidents of the Principal
Subsidiaries.
“Principal
Subsidiaries”
--
the
subsidiaries through which Employer may conduct insurance or related businesses
from time to time, presently consisting of (but without
2
limitation)
Citizens Security Life Insurance Company, United Liberty Life Insurance Company,
Citizens Insurance Company and Citizens Security Benefit Services, Inc.
“Proprietary
Items”
-- as
defined in Section 7.2.
2. EMPLOYMENT
TERMS AND DUTIES
2.1 Employment.
Employer hereby employs Employee, and Employee hereby accepts employment by
Employer, upon the terms and conditions set forth in this Agreement.
2.2 Term.
The
term of Employee’s employment under this Agreement will begin on the Starting
Date and shall terminate on the first anniversary of the Starting Date (the
“Nominal
Expiration Date”).
The
Nominal Expiration Date shall be automatically extended for successive periods
of one year each ending on the next anniversary of the Starting Date, unless
either party shall give at least thirty (30) days notice of termination of
this
Agreement as of the original or last extended Nominal Expiration Date. This
Agreement is subject to earlier termination as provided in Section 6.
2.3 Duties.
Employee will have such offices and duties for the Employer Group as are
assigned or delegated to Employee by the President of Employer and/or the Boards
of Directors of Employer or one or more other members of the Employers Group,
and will initially serve as Executive Vice President, Group
Products
of Employer and of Citizens Security Life Insurance Company and United Liberty
Life Insurance Company.
Employee
will devote his entire business time, attention, skill and energy exclusively
to
the business of the Employer Group, will use his best efforts to promote the
success of the Employer Group’s business, and will cooperate fully with the
President of Employer, the President or Presidents of the Principal Subsidiaries
and the Boards of Directors of the Employer Group in the advancement of the
best
interests of the Employer Group. Nothing in this Section 2.3, however, will
prevent Employee from engaging in additional activities in connection with
personal investments and community affairs that are not inconsistent with
Employee’s duties under this Agreement.
3. COMPENSATION
3.1 Base
Salary.
During
the Employment Period, Employer will pay Employee a salary (the “Base
Salary”)
at the
rate of $180,000 per annum, which will be payable bi-weekly less withholding
according to applicable law and Employer’s customary payroll practices.
3.2 Bonuses.
Employer agrees to pay Employee bonuses (collectively, “Bonuses”)
as
follows:
(a) Sign-On
Bonus.
Employer
agrees to pay Employee a one-time sign-on bonus in the sum of $150,000 (the
“Sign-On
Bonus”)
less
withholding according to applicable law and Employer’s customary payroll
practices. The
Sign-On Bonus shall be payable in installments as follows: [i] on the Starting
Date, $75,000 and [ii] on April 1, 2007, $75,000.
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(b) Supplemental
Bonus.
Employer agrees to pay Employee a one-time bonus in the sum of $20,000 less
withholding according to applicable law and Employer’s customary payroll
practices on February 1, 2007.
(c) Premium
Growth Bonus.
Employer agrees to pay Employee an annual bonus up to 25% of Base Salary
proportionate to the growth in annualized premium for all group products from
one annual measurement date to the next such date. Annualized premium will
be
calculated by Employer as of each measurement date in accordance with its
customary calculation principles, which the parties acknowledge are imprecise
but acceptable under the circumstances. The comparison for the first year will
be between calculations as of January 1, 2007 and January 1, 2008. If the
comparison shows an increase of ten percent (10%) or more, the bonus shall
equal
[i] the number of full or partial five percentage point increments in excess
of
ten percent (10%) times [ii] 25% of the Base Salary [iii] divided by five (5).
The bonus, which shall in no event exceed 25% of the Base Salary, less
withholding according to applicable law and Employer’s customary payroll
practices shall be payable not later than March 31 of the succeeding year.
The
comparison for the second year will be between calculations as of January 1,
2008 and January 1, 2009 and for subsequent years will be for later measurement
dates determined on the same principal.
(d) Direct
Margin Bonus.
Employer agrees to pay Employee an annual bonus up to 25% of Base Salary
proportionate to the amount by which direct margin from all group products
exceeds eight and two tenths percent (8.2%). Direct margin shall be calculated
by Employer as of December 31 of each calendar year using the following factors
in relation to group products only: [i] premium revenues [ii] less incurred
reported claims incurred and claims incurred but not reported [iii] less
commissions [iv] less premium taxes and [v] less variable direct expenses,
all
as calculated by Employer as of each measurement date in accordance with its
customary calculation principles, which the parties acknowledge are imprecise
but acceptable under the circumstances. The resulting amount, divided by premium
revenues, shall be the direct margin factor. If the direct margin factor exceeds
eight
and
two tenths percent (8.2%),
the
bonus shall equal [i] the number of full or partial percentage points in excess
of eight and two tenths percent (8.2%) [ii] times 25% of the Base Salary [iii]
divided by six (6). The bonus, which shall in no event exceed 25% of the Base
Salary, less withholding according to applicable law and Employer’s customary
payroll practices shall be payable not later than March 31 of the succeeding
year.
3.3 Benefits.
Employee and his dependents will, during the Employment Period, be permitted
to
participate in all such life insurance, hospitalization, major medical and
dental plans of Employer that may be in effect from time to time, on the same
terms and conditions under which other senior executives of Employer and their
dependents are eligible under those plans (collectively, the “Benefits”).
4. FACILITIES
AND EXPENSES
4.1 Employee
Support and Expense Reimbursements.
During
the Employment Period, Employer will furnish Employee suitable office space,
equipment, supplies
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and
such
other facilities and personnel for the performance of Employee’s duties under
this Agreement. Employer will pay on behalf of Employee (or reimburse Employee
for) actual and reasonable expenses incurred by Employee at the request of,
or
on behalf of, Employer in the performance of Employee’s duties pursuant to this
Agreement, and in accordance with Employer’s expense reimbursement policies, but
specifically including the following, whether or not addressed in such
employment policies:
(a) charges
for cellular telephone usage not exceeding $1,000 per period of 12 months from
the Starting Date or any anniversary thereof (each a “Contract
Year”);
(b) continuing
education and license fees not exceeding $1,200 per Contract Year;
and
(c) use
of an
automobile supplied by the Employer or an automobile expense allowance of $500
per calendar month.
Employee
must file expense reports with respect to such expenses in accordance with
Employer’s expense reimbursement policies.
4.2 Relocation
Expenses.
During
the Employment Period, Employer will also pay on behalf of Employee (or
reimburse Employee for) actual and reasonable expenses not exceeding $10,000
incurred by Employee in relocating from Birmingham to Louisville, including
costs for moving household goods from Birmingham to Louisville.
5. VACATIONS
AND HOLIDAYS
Employee
will be entitled to paid vacation, personal and sick days in accordance with
the
policies of Employer in effect for its senior executives from time to time,
except that his paid vacation shall be not less then three (3) weeks per
Contract Year. Vacation may be taken by Employee at such time or times as
reasonably chosen by the Employee, on notice to the President of the Principal
Subsidiaries. Employee will also be entitled to paid holidays and other paid
leave as provided in Employer’s policies.
6. TERMINATION
6.1 Events
of Termination.
Subject
to the other provisions of this Section 6, the Employment Period, the Employee’s
Base Salary, Bonus accruals and Benefits, and any and all other rights of
Employee under this Agreement or otherwise as an employee of Employer will
terminate:
(a) on
the
original or last extended Nominal Expiration Date;
(b) upon
the
death of Employee;
(c) upon
the
disability of Employee (as defined in Section 6.2), immediately upon notice
from
either party to the other;
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(d) for
cause
(as defined in Section 6.3), immediately upon notice from Employer to Employee,
or at such later time as such notice may specify or at such earlier time as
Employee may then determine;
(e) for
good
reason (as defined in Section 6.4), immediately upon notice from Employee to
Employer;
(f) upon
the
resignation of Employee other than for good reason, upon not less than two
(2)
weeks notice from Employee to Employer or at such earlier time as Employer
may
then determine; or
(g) for
the
convenience of Employer (as defined in Section 6.5), immediately upon notice
from Employer to Employee, or at such later time as such notice may specify
or
at such earlier time as Employee may then determine.
6.2 Definition
of Disability.
For
purposes of Section 6.1, Employee will be deemed to have a “disability”
if, by
reason of his physical or mental condition, Employee is unable to or does not
perform Employee’s duties under this Agreement for sixty (60) consecutive days,
or ninety (90) days during any twelve month period, as determined in accordance
with this Section 6.2. If and only if an issue of fact exists, the
disability of Employee may be determined by an independent medical doctor
selected by written agreement of Employer and Employee upon the request of
either party by notice to the other and the determination of the medical doctor
will be binding on both parties. Employee must submit to a reasonable number
of
examinations by any medical doctor making the determination of disability under
this Section 6.2, and Employee hereby authorizes the disclosure and release
to
Employer of such determination and all supporting medical records. If Employee
is not legally competent, Employee’s legal guardian or duly authorized
attorney-in-fact will act in Employee’s stead, under this Section 6.2, for the
purposes of submitting Employee to the examinations, and providing the
authorization of disclosure, required under this Section 6.2.
6.3 Definition
of “For Cause.”
For
purposes of Section 6.1, the phrase “for
cause”
means:
(a) Employee’s material breach of this Agreement, which breach continues
for a period of ten (10) days after Employer has given Employee written notice
thereof; (b) Employee’s failure to adhere to any written Employer policy
(including without limitation, its Code of Business Ethics and Conduct and
Xxxxxxx Xxxxxxx Policy) if Employee has been given a reasonable opportunity
to
comply with such policy or cure his failure to comply (which reasonable
opportunity must be granted during the ten (10) day period preceding termination
of this Agreement); (c) the appropriation (or attempted appropriation) of a
material business opportunity of the Employer Group, including attempting to
secure or securing any personal profit in connection with any transaction
entered into on behalf of the Employer Group; (d) the misappropriation (or
attempted misappropriation) of any of the Employer Group’s funds or property; or
(e) the conviction of, the indictment for (or its procedural equivalent),
or the entering of a guilty plea or plea of no contest with respect to, a
felony, the equivalent thereof, or a misdemeanor (excluding minor traffic
offenses for which Employee is not sentenced to imprisonment).
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6.4 Definition
of “For Good Reason.”
For
purposes of Section 6.1, the phrase “for
good reason”
means
Employer’s breach of this Agreement, which breach continues for a period
of ten (10) days after Employee has given Employer written notice thereof.
6.5 Definition
of “For Convenience of Employer.”
For
purposes of Section 6.1, the phrase “for
convenience of Employer”
means a
termination by action of Employer for a reason other than pursuant to Section
6.1(c) or (d).
6.6 Termination
Pay.
Effective upon the termination of this Agreement, Employer will be obligated
to
pay Employee (or, in the event of his death, his designated beneficiary as
defined below) only such compensation as is provided in this Section 6.6, and
in
lieu of all other Base Salary or Bonuses (including installments of Bonuses
not
yet payable), which shall be in settlement and complete release of all claims
Employee may have against the Employer Group. For purposes of this Section
6.6,
Employee’s designated beneficiary will be Employee’s spouse or such other
individual beneficiary or trust, located at such address, as Employee may
designate by notice to Employer from time to time. Notwithstanding the preceding
sentence, Employer will have no duty, under any circumstances, to attempt to
determine whether any beneficiary designated by Employee is alive or to
ascertain the address of any such beneficiary, to determine the existence of
any
trust, to determine whether any person or entity purporting to act as Employee’s
personal representative (or the trustee of a trust established by Employee)
is
duly authorized to act in that capacity, or to locate or attempt to locate
any
beneficiary, personal representative or trustee.
(a) Termination
upon Nominal Expiration Date.
If this
Agreement is terminated because the term has reached the original or last
extended Nominal Expiration Date, Employer will pay Employee his Base Salary
through such Nominal Expiration Date. In addition, if the Nominal Expiration
Date occurs because Employer has given notice of termination as contemplated
by
Section 2.2, Employer will continue to pay Employee his Base Salary in bi-weekly
installments for an additional period of three (3) months after the Nominal
Expiration Date. The parties agree that Employer’s liability under this
paragraph (a) `is to be reduced by any unemployment compensation benefits
Employee may receive after termination and that Employer may reduce its payments
to the extent of any such benefits.
(b) Termination
upon Death.
If this
Agreement is terminated because of Employee’s death, Employer will pay Employee
his Base Salary only through the end of the pay period in which his death
occurs.
(c) Termination
upon Disability.
If this
Agreement is terminated by either party as a result of Employee’s disability, as
determined under Section 6.2, Employer will pay Employee his Base Salary only
through the end of the pay period in which the effective date of such
termination occurs.
(d) Termination
by Employer for Cause.
If
Employer terminates this Agreement for cause, Employer will pay Employee his
Base Salary only through the end of the pay period in which the effective date
of such termination occurs.
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(e) Termination
by Employee by Resignation Other than for Good Reason.
If
Employee terminates this Agreement by resignation other than for good reason,
Employer will pay Employee his Base Salary only through the end of the pay
period in which the effective date of such resignation occurs.
(f) Termination
by Employee for Good Reason or by Employer for the Convenience of
Employer.
If
Employee terminates this Agreement for good reason or Employer terminates this
Agreement for the convenience of Employer, Employer will pay Employee his Base
Salary through the end of the pay period in which the effective date of such
termination occurs. In addition, Employer will continue to pay Employee his
Base
Salary in bi-weekly installments for up to three (3) months from the end of
the
pay period in which the effective date occurs, except that if the effective
date
occurs less than twelve (12) months after the Starting Date, Employer will
continue to pay Employee his Base Salary in bi-weekly installments for up to
five (5) months from the end of the pay period in which the effective date
occurs. The parties agree that Employer’s liability under this paragraph (f) `is
to be reduced by any unemployment compensation benefits Employee may receive
after termination and that Employer may reduce its payments to the extent of
any
such benefits.
(g) Benefits.
Employee’s accrual of, or participation in plans providing for, the Benefits
will cease at the effective date of the termination of this Agreement, and
Employee will be entitled to accrued and post-employment Benefits pursuant
to
such plans only as provided in such plans or applicable law (including without
limitation “COBRA benefits”).
(h) Sign-On
Bonus.
If the
effective date of the termination of this Agreement occurs before the third
(3rd) anniversary of the Starting Date and if the event of termination is one
described in Sections 6.1(a), (d), (f) or (g), Employee shall refund a part
of
the Sign-On Bonus in the proportion that the number of whole months remaining
until the third (3rd) anniversary of the Starting Date bears to thirty-six
(36).
Employee may pay the required refund in substantially equal quarterly,
semi-annual or annual installments, with the final installment to be due on
the
third (3rd) anniversary of the Starting Date. Any portion of the required refund
that has not been received by Employer within ninety (90) days after the
effective date of termination shall then begin to bear interest at six percent
(6%) per annum until the required refund and such interest has been paid in
full. In addition, Employer may apply any sums payable to Employee under other
Bonuses, less withholding according to applicable law and Employer’s customary
payroll practices until the required refund and such interest has been paid
in
full.
7. NON-DISCLOSURE
COVENANT.
7.1 Acknowledgments
by Employee.
Employee acknowledges that (a) during the Employment Period and as a part
of his employment, Employee will be afforded access to Confidential Information;
(b) public disclosure of such Confidential Information could have an
adverse effect on the Employer Group and its business and/or violate or create
liability under federal securities laws and securities exchange regulations;
(c) the Employer Group will be at a substantial competitive disadvantage if
it fails to acquire exclusive ownership of each Employee
8
Invention;
and (d) the provisions of this Section 7 are reasonable and necessary to
prevent the improper use or disclosure of Confidential Information and to
provide Employer with exclusive ownership of all Employee Inventions.
7.2 Agreements
of Employee.
In
consideration of the compensation and benefits to be paid or provided to
Employee by Employer under this Agreement, Employee covenants as
follows:
(a) Confidentiality
(i) During
and following the Employment Period, Employee will hold in confidence the
Confidential Information and will not disclose it to any person except with
the
specific prior written consent of Employer or except as otherwise expressly
permitted by the terms of this Agreement.
(ii) Any
trade
secrets of the Employer Group will be entitled to all of the protections and
benefits under the Uniform Trade Secrets Act (KRS 365.880-.900) and any other
applicable law. Employee hereby waives any requirement that Employer submit
proof of the economic value of any trade secret or post a bond or other
security.
(iii) None
of
the foregoing obligations and restrictions applies to any part of the
Confidential Information that Employee demonstrates was or became generally
available to the public other than as a result of a disclosure by
Employee.
(iv) Employee
will not remove from the Employer Group’s premises (except to the extent such
removal is for purposes of the performance of Employee’s duties at home or while
traveling, or except as otherwise specifically authorized by the President
of
Employer) any document, record, or computer software or code, whether embodied
in a disk or in any other form (collectively, the “Proprietary
Items”).
Employee recognizes that, as between Employer and Employee, all of the
Proprietary Items, whether or not developed by Employee, are the exclusive
property of Employer. Upon termination of this Agreement by either party, or
upon the request of Employer during the Employment Period, Employee will return
to Employer all of the Proprietary Items in Employee’s possession or subject to
Employee’s control, and Employee shall not retain any copies or other physical
embodiment of any of the Proprietary Items.
(b) Employee
Inventions.
Each
Employee Invention will belong exclusively to Employer. Employee acknowledges
that all of Employee’s Employee Inventions are works made for hire and the
property of Employer, including any copyrights, patents or other intellectual
property rights pertaining thereto. If it is determined that any such works
are
not works made for hire, Employee hereby assigns to Employer all of Employee’s
right, title, and interest, including all rights of copyright, patent and other
intellectual property rights, to or in such Employee Inventions. Employee
covenants that he will promptly:
(i) disclose
to Employer in writing any Employee Invention;
9
(ii) assign
to
Employer or to a party designated by Employer, at Employer’s request and without
additional compensation, all of Employee’s right, title, and interest to or in
Employee Invention;
(iii) execute
and deliver to Employer such applications, assignments, and other documents
as
Employer may request in order to apply for and obtain patents or other
registrations with respect to any Employee Invention;
(iv) sign
all
other papers necessary to carry out the above obligations; and
(v) give
testimony and render any other assistance but without expense to Employee in
support of Employer’s rights to any Employee Invention.
7.3 Disputes
or Controversies.
Employee recognizes that should a dispute or controversy arising from or
relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained
in
secrecy and will be available for inspection by Employer, Employee, and their
respective attorneys and experts, who will agree, in advance and in writing,
to
receive and maintain all such information in secrecy, except as may be limited
by them in writing.
8. NON-COMPETITION,
NON-SOLICITATION AND NON-INTERFERENCE
8.1 Acknowledgments
by Employee.
Employee acknowledges that: (a) the services to be performed by him under
this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; and (b) the provisions of this Section 8 are
reasonable and necessary to protect the Employer Group’s business.
8.2 Covenants
of Employee.
In
consideration of the acknowledgments by Employee, and in consideration of the
compensation and benefits to be paid or provided to Employee by Employer,
Employee covenants that he will not, directly or indirectly:
(a) during
the Employment Period, except in the course of his employment hereunder, engage
or invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend Employee’s name or any
similar name to, lend Employee’s credit to or render services or advice to, any
business whose products or activities compete in whole or in part with the
products or activities of the Employer Group anywhere; provided, however, that
Employee may purchase or otherwise acquire up to (but not more than) one percent
of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any securities exchange or have been registered under Section 12(g)
of
the Securities Exchange Act of 1934;
(b) until
the
end of the Post-Employment Limitation Period or until repayment in full of
the
refund obligations described in Section 6(h) including interest
10
thereon,
whichever shall first occur, engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management, operation, financing,
or
control of, be employed by, associated with, or in any manner connected with,
lend Employee’s name or any similar name to, lend Employee’s credit to or render
services or advice to, any business whose products or activities compete
in
whole or to any substantial degree with the group products or group third-party
administration activities of the Employer Group anywhere; provided, however,
that Employee may purchase or otherwise acquire up to (but not more than)
one
percent of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any securities exchange or have been registered under Section 12(g)
of
the Securities Exchange Act of 1934.
(c) whether
for Employee’s own account or for the account of any other person, at any time
during the Employment Period and the Post-Employment Limitation Period, solicit
business of the same or similar type being carried on by the Employer Group
from
any person known by Employee to be a customer of the Employer Group, whether
or
not Employee had personal contact with such person during and by reason of
Employee’s employment with the Employer Group;
(d) whether
for Employee’s own account or the account of any other person (i) at any
time during the Employment Period and the Post-Employment Limitation Period,
solicit, employ, or otherwise engage as an employee or agent any person who
is
or was an employee or agent of the Employer Group at any time during the
Employment Period or in any manner induce or attempt to induce any employee
or
agent of the Employer Group to terminate his employment or agency with the
Employer Group; or (ii) at any time during the Employment Period and the
Post-Employment Limitation Period, interfere with the Employer Group’s
relationship with any person, including any person who at any time during the
Employment Period was an employee or agent of the Employer Group;
or
(e) at
any
time disparage the Employer Group or any of its shareholders, directors,
officers, employees, or agents.
8.3 Additional
Provisions.
(a) For
purposes of this Section 8, the term “Post-Employment
Limitation Period”
means
the two (2) year period beginning on the date of termination of Employee’s
employment with Employer.
(b) If
any
covenant in this Section 8 is held to be unreasonable, arbitrary, or against
public policy, such covenant will be considered to be divisible with respect
to
scope, time, and geographic area, and such lesser scope, time, or geographic
area, or all of them, as a court of competent jurisdiction may determine to
be
reasonable, not arbitrary, and not against public policy, will be effective,
binding, and enforceable against Employee.
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(c) The
period of time applicable to any covenant in this Section 8 will be extended
by
the duration of any violation by Employee of such covenant.
(d) Employee
will, while the covenant under this Section 8 is in effect, give notice to
Employer, within ten (10) days after accepting any other employment, of the
identity of Employee’s employer. Employer may notify such employer that Employee
is bound by this Agreement and, at Employer’s election, furnish such employer
with a copy of this Agreement or relevant portions thereof.
9. GENERAL
PROVISIONS
9.1 Injunctive
Relief and Additional Remedy.
Employee acknowledges that the injury that would be suffered by the Employer
Group as a result of a breach of the provisions of this Agreement (including
any
provision of Sections 7 and 8) would be irreparable and that an award of
monetary damages to the Employer Group for such a breach would be an inadequate
remedy. Consequently, Employer will have the right, in addition to any other
rights it may have, to obtain injunctive relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provision of this
Agreement, and Employer will not be obligated to post bond or other security
in
seeking such relief. Without limiting Employer’s rights under this Section 9 or
any other remedies of the Employer Group, if Employee breaches any of the
provisions of Section 7 or 8, Employer will have the right to cease making
any
payments otherwise due to Employee under this Agreement.
9.2 Covenants
of Sections 7 and 8 are Essential and Independent Covenants.
(a) The
covenants by Employee in Sections 7 and 8 are essential elements of this
Agreement, and without Employee’s agreement to comply with such covenants,
Employer would not have entered into this Agreement or employed or continued
the
employment of Employee. Employer and Employee have independently consulted
their
respective counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to the
nature of the business conducted by the Employer Group.
(b) Employee’s
covenants in Sections 7 and 8 are independent covenants and the existence of
any
claim by Employee against the Employer Group under this Agreement or otherwise
will not excuse Employee’s breach of any covenant in Section 7 or 8.
(c) This
Agreement will continue in full force and effect after termination of Employee’s
employment as is necessary or appropriate to enforce the covenants and
agreements of Employee in Sections 7 and 8.
9.3 Representations
and Warranties by Employee.
(a) Employee
represents and warrants to Employer that the execution and delivery by Employee
of this Agreement do not, and the performance by Employee of Employee’s
obligations hereunder will not, with or without the giving of notice or the
passage of time, or both: (a) violate any judgment, writ, injunction, or
order of any court,
12
arbitrator,
or governmental agency applicable to Employee; or (b) conflict with, result
in the breach of any provisions of or the termination of, or constitute a
default under, any agreement to which Employee is a party or by which Employee
is or may be bound, including without limitation any covenant not to compete.
(b) Employee
further represents and warrants that the information contained in the [i] resume
and [ii] completed Questionnaire for Prospective Officer heretofore furnished
by
Employee to Employer is true, correct and complete in all material respects
as
of the date of his signature of this Agreement.
9.4 Waiver.
The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by either party in exercising
any
right, power, or privilege under this Agreement will operate as a waiver of
such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege.
To
the maximum extent permitted by applicable law, (a) no claim or right
arising out of this Agreement can be discharged by one party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing signed
by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of
any obligation of such party or of the right of the party giving such notice
or
demand to take further action without notice or demand as provided in this
Agreement.
9.5 Binding
Effect; Delegation of Duties Prohibited.
This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including the other members of the Employer Group and any
entity with which any member of the Employer Group may merge or consolidate
or
to which all or substantially all of its assets may be transferred. The duties
and covenants of Employee under this Agreement, being personal, may not be
delegated or assigned.
9.6 Notices.
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) received
by hand delivery to the addressee wherever the addressee may be found,
(b) received by the addressee by facsimile, provided that a copy is mailed
by certified mail, return receipt requested, to the applicable address below
or,
in the case of the Employee, at his last known address on the Employee’s records
or (c) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested) at the applicable address below
or, in the case of the Employee, at his last known address on the Employee’s
records:
|
If
to Employer:
|
Citizens Financial Corporation |
| Suite 300 | |
| The Marketplace | |
| 00000 Xxxxxxxxxxx Xxxx | |
| Xxxxxxxxxx, Xxxxxxxx 00000-0000 | |
| Attention: President | |
|
Facsimile
No.:
502/212-2671
|
13
|
If
to Employee:
|
Xxxxx X. Xxxxxx III |
| 000 Xxxxx Xxx | |
| Xxxxxxxxxx, Xxxxxxx 00000 |
Either
party may change its address for notices by giving notice in accordance with
the
preceding provisions.
9.7 Entire
Agreement; Amendments.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended orally, but only by an agreement
in
writing signed by the parties hereto.
9.8 Governing
Law.
This
Agreement will be governed by the laws of the State of Kentucky without regard
to conflicts of laws principles.
9.9 Jurisdiction.
Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement may be brought against either of the parties
in
the courts of the State of Kentucky, County of Jefferson, or, if it has or
can
acquire jurisdiction, in the United States District Court for the Western
District of Kentucky, and each of the parties consents to the jurisdiction
of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.
9.10 Section
Headings, Construction.
The
headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to “Section”
or “paragraph” or “Sections” or “paragraphs” refer to the corresponding parts of
this Agreement unless otherwise specified. All words used in this Agreement
will
be construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word “including” does not limit the preceding
words or terms.
9.11 Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
9.12 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
14
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of
the date above first written above.
CITIZENS
FINANCIAL CORPORATION
By
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx,
President
/s/
Xxxxx X. Xxxxxx III
XXXXX
X. XXXXXX III
