Contract
Exhibit
10.1
X.
X. XXXXXX, XX.
This
Agreement for Services (the “Agreement”) is made and entered into between X. X.
XXXXXX,
XX.
(“Hayden”) and THE MIDLAND COMPANY (“Midland”).
WITNESSETH:
Midland
desires to engage Hayden to render business advisory services subject to the
terms and conditions of this Agreement because of Hayden’s valuable experience
in operating the business. Hayden is willing to perform such services for the
fees and upon and subject to the terms and conditions set forth in this
Agreement. Accordingly, Midland and Hayden agree as follows:
1. Term.
The
term of this Agreement (the “Term”) shall be for an initial period of one year
from the date this Agreement is executed and will automatically renew for
successive one-year terms unless written notice of termination is given by
either party more than six months prior to the end of the current Term.
For
example, if this Agreement was executed December 6, 2006, it would automatically
renew for one year on December 6, 2007. Either party could terminate the
contract by giving written notice to the other party on or before June 6, 2007.
If neither party gives notice of termination on or before June 6, 2007, this
Agreement will automatically renew for one year, and either party can terminate
the contract as of December 5, 2008 by giving written notice to the other on
or
before June 6, 2008.
2. Business
Advisory Services.
During
the Term of this Agreement, Hayden’s duties include, at the request of Midland:
(a) consulting with and advising officers of Midland during regular business
hours, and (b) promoting the good will of Midland by being available to attend
insurance-related conferences and functions as a representative of Midland.
Hayden shall devote only such time and attention to the business of Midland
as
may be reasonably necessary to perform Hayden’s duties under this Agreement, up
to a maximum of twenty hours per month.
3. Fees.
In
consideration of the services to be performed by Hayden, Midland agrees to
pay
Hayden the sum of $50,000.00 per year, beginning in the year 2006.
Hayden’s
fee for 2006 will be paid as a lump sum on or before December 29,
2006.
For
2007
and all successive years in which this Agreement operates, Hayden’s fee will be
paid in equal monthly installments on or before the fifteenth day of each
month.
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4. Other
Consideration.
a. This
Agreement compensates Hayden for operational services provided separate from,
and in addition to, his responsibilities as a Director, and, as such, Hayden
shall be compensated as an outside director of Midland’s Board of Directors;
and
b. The
Midland Health Insurance Plan shall be available at normal employee rates during
the Term and after the Term. Hayden’s coverage and his spouse’s coverage shall
be secondary to Medicare.
c. Midland
shall provide
Hayden with an office and administrative assistant in the headquarters building
during the Term of this Agreement.
5. Proprietary
Property; Confidential Information.
For
purposes of this Agreement, the following definitions shall be
used:
a. Proprietary
Property.
The
term “Proprietary Property” includes any and all ideas, creations, developments,
improvements, inventions, trade secrets, patents, copyrights, trademarks, trade
names, logos, processes, computer programs, databases, spread sheets,
documentation, models, methodologies, strategies, material works of authorship,
know-how and methods of applying and putting into practice any such items that
are created, developed or discovered by or for Midland or are acquired or
licensed on proprietary technical information generally known in the business
in
which Midland operates, even if disclosed to Hayden or known or developed by
Hayden as a consequence of or through Hayden’s performance of services under
this Agreement.
b. Confidential
Information.
The
term “Confidential Information” includes any and all information which relates
to Midland’s products and services (including their development, marketing and
sale), the financial, marketing or other aspects of Midland’s operations, and
the intellectual property and business and other rights which it owns, licenses
or otherwise has the right to use, which is not generally known outside Midland
(other than to Midland’s customers or suppliers or other third parties in
connection with their business with Midland) and which is disclosed or
accessible to or known or developed by Hayden as a consequence of or through
Hayden’s performance of services hereunder or prior performance of services for
Midland. It includes, but is not limited to, memoranda, files, books and
records, financial and accounting methodologies, catalogs, lists of customers
or
prospects, price lists, advertising and promotional materials, packaging design,
business plans, operating policies and manuals, internal controls, policies,
procedures and guidelines, and other business information and records used
in
the conduct of business (whether in tangible - including written documents,
magnetic tapes, disks or other media - or intangible form), agreements and
understandings between Midland and third parties, and trade secretes, software
and other licenses, source codes and object codes, designs, drawings, plans
and
other such information and rights, intangible or otherwise,
whether or not such information comes within the definition of “Proprietary
Property” as used in this Agreement.
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c. Rights
to Proprietary Property.
Hayden
agrees that, except as Midland may otherwise expressly agree in writing, (i)
Hayden shall have no rights and shall acquire no rights to any Proprietary
Property that comes, or has come, within Hayden’s knowledge or possession
through or as a consequence of Hayden’s performance of services hereunder or
prior to the effective time of this Agreement, and (ii) any information or
other
property that is, or has been, invented, created, discovered, written,
developed, furnished or produced to Hayden, solely or jointly, wholly or partly,
while performing services for Midland hereunder or prior to the effective time
of this Agreement or with information proprietary to Midland (the
“Developments”), shall be the exclusive property of Midland, and Hayden shall
have no right, title or interest of any kind in and to the Developments,
including any results or proceeds therefrom. Hayden hereby sells, transfers
and
assigns to Midland all right, title and interest which Hayden may be deemed
to
have in and to the Developments, including the right to patent, register
copyrights for or obtain legal protection for the Developments, and agrees
to
communicate promptly and disclose to Midland, in such form as Midland requests,
all information, details and data pertaining to any Developments. At any time
during or subsequent to the Term of this Agreement, upon the request and at
the
election and expense of Midland, Hayden will patent, register copyrights for
or
obtain other legal protection for any Developments and execute any and all
assignments, instruments of transfer, or other documents that Midland deems
necessary or appropriate to transfer to Midland all rights in or to the
Developments or to evidence Midland’s ownership of such rights in or to the
Developments.
d. Use
and
Disclosure.
Except
as may be otherwise expressly authorized in writing by Midland, Hayden shall
not
use any Proprietary Property or Confidential Information except for the benefit
of Midland and shall not disclose any Confidential Information to any other
person. As used in this Agreement, unless the context otherwise requires, the
term “person” includes, but is not limited to, any individual, partnership,
association, firm, corporation, trust, unincorporated organization, joint
venture or other entity. This restriction on use and disclosure applies without
limitation as to time or place.
e. Applicability
to Midland and its Affiliates.
For
purposes of this Section 5, and Sections 6, 7 and 8 of this Agreement,
references to Midland shall be deemed to include Midland and any corporations
or
other business entities affiliated with it.
6. Midland
Property.
Following the Expiration Date of this Agreement, Hayden shall promptly return
to
Midland all property of Midland in the possession or control of Hayden (and
any
and all copies thereof) including, without limitation, all Proprietary Property
and Confidential Information.
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7. Non-Competition.
During
the period commencing on the date of this Agreement and ending five years after
the expiration of this Agreement (the “Restricted Period”), Hayden shall not,
either on Hayden’s own account or for any other person or entity, directly or
indirectly: (a) engage in any activities or render any services which are
similar or reasonably related to those performed for or rendered to or on behalf
of Midland during the term of this Agreement or the two-year period preceding
the date of the Agreement (together, the “Extended Term”), to any business which
competes with Midland in any place where Midland is engaged or, to the knowledge
of Hayden, intends to engage in business; or (b) own a greater than five percent
equity interest in or be connected with the management, operation or control
of
any such business, but the foregoing shall not be deemed to exclude Hayden
from
acting as a director, officer or employee of or a consultant to any other
business for the benefit of Midland with the consent of Midland’s Board of
Directors.
8. Non-Solicitation.
During
the Restricted Period, Hayden shall not directly or indirectly: (a) attempt
to
induce, or assist others to attempt to induce, any person who is, was, or was
actively negotiating to become, a customer of Midland at any time during the
Extended Term, to reduce or terminate such customer’s business with Midland or
to direct any of its business that is then being or may be done with Midland
to
any other person; (b) attempt to induce, or assist others to attempt to induce,
any employee of Midland to terminate his or her employment with Midland; and
(c)
whether in an individual capacity or as the owner, partner, employee or agent
of
any entity, employ or offer employment to any person who is or was employed
by
Midland during the Extended Term unless such person shall cease to have been
employed by Midland in any capacity for a period of at least one year.
9. Survival.
Sections 5, 6, 7, 8, 9 and 10 shall survive the termination of this Agreement.
In the event Midland is acquired or merges with another entity, this Agreement
shall survive unless otherwise agreed to in writing by Midland and Hayden.
10. Remedies
for Breach of Agreement.
If
Hayden commits a breach or threatens to commit a breach of any of the provisions
of this Agreement, Midland shall have the right to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction without
having to prove the inadequacy of the available remedies at law or irreparable
injury, it being acknowledged and agreed to between Midland and Hayden that
any
such breach or threatened breach will cause irreparable injury to Midland and
that money damages may not provide an adequate remedy to Midland. In addition,
Midland may take and pursue all such other actions and remedies as may be
available to Midland at law or inequity and shall be entitled to such damages
as
Midland can show Midland has sustained by reason of such breach, together with
court costs and attorneys’ fees.
11. Expenses.
Midland
agrees to reimburse Hayden for all reasonable out-of-pocket expenses incurred
by
Hayden in connection with the performance of the duties under this Agreement.
12. Title:
Relationship of Parties.
Hayden
may hold himself out as an advisor to Midland. Hayden is retained by Midland
only for the purposes and to the extent set forth in this Agreement, and
Hayden’s relation to Midland under this Agreement shall be that of an
independent
contractor and not that of an employee, partner or joint venturer. Hayden
acknowledges that he is solely responsible for all withholding, social security
and other taxes with respect to the consulting fees paid to him under this
Agreement.
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13. Independent
Judgment.
Nothing
in this Agreement shall be construed to interfere with or otherwise affect
the
rendering of services by Hayden under this Agreement in accordance with Hayden’s
independent and professional judgment and in accordance with Hayden’s own means
and mode of performance.
14. Indemnity.
Each
party (“Indemnifying Party”) agrees to indemnify and hold harmless the other
party (the “Injured Party”) from and against any damages, liabilities, actions,
suits or other claims and from reasonable attorneys’ fees and costs incurred by
the Injured Party in defending against the same with respect to the discharge
of
the Injured Party’s duties and responsibilities under this Agreement unless such
liability arose out of the Injured Party’s gross negligence.
15. Entire
Agreement.
This
Agreement supersedes any and all other understandings and agreements, either
oral or in writing, between Midland and Hayden with respect to the subject
matter of this Agreement and constitutes the sole and only agreement between
Midland and Hayden with respect to the subject matter except that, if not
addressed herein and to the extent applicable, obligations contained in the
Consulting Agreement commencing April 1, 2000 between Hayden and Midland shall
survive. No change or modification of this agreement shall be valid or binding
upon Midland and Hayden unless the change or modification is in writing and
signed by Midland and Hayden.
16. Legal
Construction.
If any
provision of this Agreement shall be found by any court of competent
jurisdiction to be invalid or unenforceable for any reason, such invalid or
unenforceable provisions shall not affect the validity or enforceability of
the
remaining provisions of this Agreement, which shall remain in full force and
effect.
17. Parties
Bound.
This
Agreement shall be binding upon and shall inure to the benefit of Midland and
Hayden and their respective successors and assigns. Hayden shall not assign
any
of his rights under this Agreement without the prior written consent of Midland.
Midland shall not assign any of its rights under this Agreement to any person
or
entity without the prior written consent of Hayden.
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which shall constitute one and the same Agreement.
19. Governing
Law.
This
Agreement shall be governed by, construed under, and enforced in accordance
with
the laws of the State of Ohio.
20. Headings;
Gender; Number.
The
headings contained in this Agreement are for convenience only and shall not
be
construed as substantive provisions of this Agreement.
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Singular
words shall include the plural and plural words shall include the singular,
unless the context requires otherwise.
21. Other
Activities.
Hayden
may get involved in other activities which do not materially interfere from
a
time standpoint with the duties of Hayden hereunder.
22. Effective
Date.
This
Agreement shall be dated December 6, 2006 and effective as of that date. This
Agreement restates and thereby supersedes any consulting agreement previously
executed by the parties, and the parties agree that any prior consulting
agreement shall be of no further effect.
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X. X. Xxxxxx, Xx. |
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| The Midland Company | ||
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| By: ___________________________________ | ||
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Title:___________________________________
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