EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of January 1, 2003, between
STANDARD MANAGEMENT CORPORATION (hereinafter the "Company"), and XXXXXX X.
XXXXXX (hereinafter "Executive").
RECITALS
A. Executive has made, and is expected to continue to make, major
contributions to the profitability, growth and financial strength of the Company
and its affiliates.
B. The Company considers the continued services of the Executive
to be in the best interests of the Company and its shareholders and desires to
assure the services of the Executive on behalf of the Company on an objective
and impartial basis and without distraction or conflict of interest in the event
of any attempt by others to obtain control of the Company or any of its
affiliates.
C. The Company desires to continue to employ Executive as its
Chairman and Chief Executive Officer upon the terms and subject to the
conditions set forth in this Agreement.
D. Executive is willing to remain employed by the Company upon
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the Company and the Executive hereby
agree as follows:
AGREEMENT
1. Employment. The Company hereby employs Executive, and
Executive hereby accepts employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. Term. The effective date of this Agreement shall be January 1,
2003 (the "Effective Date"). Subject to the provisions for termination set forth
in Section 9 of this Agreement, the initial term of this Agreement shall be five
(5) years from and after the Effective Date; and it shall automatically renew
annually for successive five (5) year periods on January 1 of each year
thereafter, unless either party elects not to renew this Agreement by serving
written notice of such intention not to renew on the other party at least one
hundred eighty (180) days prior to the succeeding January 1. If such an election
is made, this Agreement shall be in full force and effect for the remaining
portion of the then-current five (5) year period, subject to the provisions for
termination in Section 9 of this Agreement. Any reference in this Agreement to
"the term of this Agreement" means the initial term and any renewal term, each
of which shall be considered a separate term.
3. Duties. Executive's positions with the Company shall be
Chairman and Chief Executive Officer, and such other positions as may be
mutually agreed upon from time to time by Executive and the Board of Directors
of the Company.
4. Extent of Services. Executive, subject to the direction and
control of the Board of Directors of the Company, shall have the power and
authority commensurate with his executive status and necessary to perform his
duties under this Agreement. Executive shall devote substantially all of his
employable time and attention to the business of the Company, and shall not,
without the consent of the Company, during the term of this Agreement, be
actively engaged in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage; but this
shall not be construed as preventing Executive from investing his assets in such
form or manner as will not require any material services on the part of
Executive in the operation of the affairs of the companies in which such
investments are made.
5. Compensation.
(a) As compensation for services under this Agreement,
Executive shall receive during the first year of this Agreement a base
salary of Four Hundred Eighty-Seven Thousand Dollars ($487,000),
payable in equal installments in accordance with the Company's payroll
procedures for its salaried employees. For each succeeding year,
Executive's base salary shall be increased by an amount equal to
Executive's base salary for the previous year multiplied by the percent
change of the Consumer Price Index, now known as the "United States
Department of Labor, Bureau of Labor Statistics, Consumer Price Index,
U.S. City Average for all Urban Consumers, Seasonally Adjusted, All
Items (1982-84 = 100)", or, if no longer published, such similar
replacement index issued by the Department of Labor ("CPI"), during the
immediately preceding calendar year. For example, if the percent change
in the CPI from January 1, 2003, to December 31, 2003, were 5%,
Executive's base salary for the second year under this Agreement would
be $511,350. In addition to the base salary described above, Executive
may receive additional annual salary increases based upon his
performance in his executive and management capacity. The amounts of
such salary increases shall be determined by the Board of Directors of
the Company or the Compensation Committee of the Board of Directors
(the "Compensation Committee").
(b) In addition to base salary, within ninety (90) days
after the end of each fiscal year of the Company, Executive shall be
entitled to receive a bonus equal to three percent (3%) of the
Company's earnings, on a consolidated basis, before interest and taxes
for such fiscal year of the Company. Provided, however, that in no
event shall Executive's bonus be less than ten (10%) percent of
Executive's annual base salary for the then-current year. The bonus
shall be calculated from the books and records of the Company and its
affiliates, which shall be kept in accordance with generally accepted
accounting principles applied by the Company in the preparation of its
financial statements. In addition to the
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bonus described above, Executive may receive additional bonuses based
upon his performance in his executive and management capacity. The
amounts of such bonus increases shall be determined by the Board of
Directors of the Company or the Compensation Committee.
(c) Salary and bonus payments shall be subject to
withholding of taxes and other amounts required to be withheld by law.
6. Compensation Guarantee.
(a) All compensation payable to Executive under Section 5
of this Agreement will be guaranteed (the "Guaranteed Payments") as of
the Effective Date of this Agreement for the full term of this
Agreement, except for any termination of this Agreement provided for in
Sections 9(a), 9(b), 9(c) or 9(e). In particular, upon termination of
Executive's employment for any reason other than pursuant to Sections
9(a), 9(b), 9(c) or 9(e), the Company shall pay to Executive a lump-sum
payment, and Executive shall be entitled to receive from the Company
not later than ten (10) calendar days after termination of Executive's
employment, (i) a severance distribution consisting of a cash payment
equal to five (5) times the sum of (A) Executive's then-current base
salary, as determined pursuant to Section 5(a) of this Agreement for
the then-current year of this Agreement in which such termination
occurs and (B) an amount equal to the average of his bonuses with
respect to the five (5) most recently completed fiscal years of the
Company (including any fiscal years prior to the Effective Date) and
(ii) all other unpaid amounts pursuant to any other provision of this
Agreement or otherwise; provided that, following a Control Termination
(as defined in Section 11(b)), the Executive shall be entitled to
receive the payments described in Section 11 (as opposed to the
Guaranteed Payments ).
(b) None of the Guaranteed Payments described in this
Section 6 shall affect the Executive's right to receive the payments
described in Sections 12, 13 and 14 of this Agreement.
7. Fringe Benefits.
(a) Executive shall be entitled to participate in all
employee benefit plans and insurance programs offered by the Company
from time to time for its executive management or supervisory personnel
generally, at such time as Executive shall have fulfilled the
eligibility requirements for participation therein.
(b) Executive shall be entitled to the greater of (i)
four (4) weeks vacation with pay for each year during the term of this
Agreement and (ii) the number of paid vacation and sick leave days to
which he would be entitled on the basis of his years of service to the
Company and its affiliates in accordance with the Company's vacation
and sick leave policies.
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(c) Executive may incur reasonable expenses for promoting
the Company's business, including expenses for entertainment, travel,
and similar items. The Company shall reimburse Executive for (i) all
such reasonable expenses upon Executive's periodic presentation of an
itemized account of such expenditures and (ii) Executive's membership
in the Indianapolis, Indiana, Columbia Club.
(d) During the term of this Agreement, the Company shall
at its expense maintain a term life insurance policy or policies on the
life of Executive in the face amount of Seven Million Five Hundred
Thousand Dollars ($7,500,000), payable to such beneficiaries as
Executive may designate. Following termination or expiration of this
Agreement for any reason, for a period of sixty (60) days following the
later of (i) termination or expiration of this Agreement and (ii) the
date upon which the Company is no longer required to maintain such
insurance for the benefit of Executive, Executive shall have the option
to purchase from the Company the policy of insurance (other than group
insurance) on the life of Executive. The purchase price of such policy
shall be equal to the applicable portion of any prepaid premium
thereon.
(e) During the term of this Agreement, the Company shall
at its expense maintain a disability policy or policies for the benefit
of Executive, with benefits at least as favorable as those provided by
the disability policy maintained by the Company for the benefit of
Executive in effect as of the Effective Date.
8. Disclosure of Information. As a material inducement to the
Company to enter into this Agreement and to pay to Executive the compensation
set forth in Section 5, as well as any additional benefits set forth in this
Agreement, Executive covenants and agrees that he shall not, at any time during
or following the term of this Agreement, directly or indirectly, divulge or
disclose for any purpose whatsoever, any confidential information that has been
obtained by or disclosed to him as a result of his employment by the Company,
except to the extent that such confidential information (a) becomes a matter of
public record or is published in a newspaper, magazine or other periodical
available to the general public, other than as a result of any act or omission
of Executive, (b) is required to be disclosed by any law, regulation or order of
any court or regulatory commission, department or agency, provided that
Executive gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order or (c) is necessary to perform
Executive's duties under this Agreement.
9. Termination. This Agreement shall terminate on the first to
occur of the following:
(a) Expiration of the term of this Agreement;
(b) Termination by the Company for cause (as defined
below), following written notice by the Company's Board of Directors to
Executive
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specifying the particular facts and circumstances constituting cause.
"Cause" means:
(i) the persistent failure of or refusal by
Executive, following a reasonable cure period of at least
thirty (30) days, to comply with the terms of this Agreement
or, subject to the terms of this Agreement, the material
orders, policies and regulations of the Company, as adopted
and promulgated from time to time by the Company's Board of
Directors, and such failure or refusal proves to be
detrimental to the Company;
(ii) any act or acts of fraud or dishonesty by
Executive resulting in or tending to result in gain or
personal enrichment of Executive at the Company's expense;
(iii) any felony conviction of Executive; or
(iv) the persistent absence of Executive from his
employment without cause or explanation;
(c) Executive's death;
(d) Ninety (90) days following Executive's permanent and
total disability, as defined in the long-term disability policy
provided by the Company pursuant to Section 7(e);
(e) Termination by Executive, without cause, upon ninety
(90) days' prior written notice to the Company;
(f) Termination by Executive, for good reason (as defined
in Section 12(c)).
10. Effect of Termination.
(a) Upon termination of this Agreement pursuant to
Section 9(a), 9(b), 9(c) or 9(e), Executive (or his estate) shall be
entitled to (i) any unpaid salary with respect to periods prior to the
date of termination, (ii) a pro rata share of the bonus provided for in
Section 5(b), based upon the number of months during which he performed
duties under this Agreement in the year during which such termination
occurs (regardless of whether the Company's results for such year would
have resulted in a bonus being paid to Executive) and (iii) any
termination, disability, or death benefits to which he is entitled
under any of the Company's employee benefit plans in effect at the time
of such termination.
(b) In all events of termination other than pursuant to
Section 9(a), 9(b), 9(c) or 9(e), Executive shall be entitled to
receive the Guaranteed Payments described in Section 6.
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(c) In addition to the payments Executive shall be
entitled to receive under Sections 6 or 11, as applicable, and this
Section 10, in the event of any expiration or termination of this
Agreement, the Company agrees to pay to Executive the benefits set
forth in Sections 12, 13 and 14, as applicable.
(d) The benefits payable to Executive under this
Agreement upon expiration or termination of this Agreement shall be
payable to Executive regardless of any determination by the Company's
accountants that such payments are or would be non-deductible by the
Company for federal income tax purposes for any reason, including but
not limited to Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code").
11. Change in Control; Payments for Control Termination.
(a) The term "change in control" as used in this
Agreement shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934
(the "1934 Act") if such Item 6(e) were applicable to the Company as
such Item 6(e) is in effect as of the Effective Date; provided that,
without limitation, such a change in control shall be deemed to have
occurred if and when (i) any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the 0000 Xxx) is or becomes a beneficial owner,
directly or indirectly, of securities of the Company representing
fifteen percent (15%) or more of the combined voting power of the
Company's then-outstanding securities or (ii) in connection with or as
a result of a tender offer, merger, consolidation, sale of assets or
contest for election of directors, or any combination of the foregoing
transactions or events, individuals who, as of the date of this
Agreement, constitute the Board of Directors of the Company (the
"Incumbent Board") cease to constitute at least a majority of such
Board; provided, however, that any individual who becomes a director of
the Company subsequent to the date of this Agreement
whose election was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board, shall be deemed to have
been a member of the Incumbent Board; and provided further, that no
individual who was initially elected as a director of
the Company as a result of an actual or threatened election contest, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board of
Directors shall be deemed to have been a member of the Incumbent Board
or (iii) any reorganization, merger or consolidation or the issuance of
shares of common stock of the Company in connection therewith unless
immediately after any such reorganization, merger or consolidation (A)
more than sixty percent (60%) of the then-outstanding shares of common
stock of the corporation surviving or resulting from such
reorganization, merger or consolidation and more than sixty percent
(60%) of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of
directors are then beneficially owned, directly or indirectly, by all
or substantially all of the individuals or entities who were the
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beneficial owners, respectively, of the outstanding shares of common
stock of the Company and the outstanding voting securities of the
Company immediately prior to such reorganization, merger or
consolidation and in substantially the same proportions relative to
each other as their ownership, immediately prior to such
reorganization, merger or consolidation, of the outstanding shares of
common stock of the Company and the outstanding voting securities of
the Company, as the case may be and (B) at least a majority of the
members of the board of directors of the corporation surviving or
resulting from such reorganization, merger or consolidation were
members of the Board of Directors of the Company at the time of the
execution of the initial agreement or action of the Board of Directors
providing for such reorganization, merger or consolidation or issuance
of shares of common stock of the Company or (iv) the Board of Directors
of the Company approves a plan of complete liquidation of the Company
or an agreement for the sale or disposition of all or substantially all
of the assets of the Company or an agreement for the sale or
disposition of the stock or assets of a subsidiary or division of the
Company representing at least fifteen percent (15%) of the value of the
Company on a consolidated basis at the time of such approval. Upon the
occurrence of a change in control, the Company shall promptly notify
Executive in writing of the occurrence of such event (such notice, the
"Change in Control Notice"). If the Change in Control Notice is not
given within ten (10) days after the occurrence of a change in control
the period specified in clause (b)(i) of this Section 11 shall be
extended until the third anniversary of the date such Change in Control
Notice is given.
(b) The term "Control Termination" as used in this
Agreement shall mean (i) termination of this Agreement by the Company
in anticipation of or within five (5) years for any reason other than
pursuant to Sections 9(a), 9(b), 9(c), 9(d) or 9(e) following a "change
in control" of the Company (as defined above), or (ii) termination of
this Agreement by Executive for good reason (as defined in Section
12(c)) within five (5) years following a "change in control" of the
Company (as defined above).
(c) In the event of a Control Termination of this
Agreement, the Company shall:
(i) Within ten (10) days following the Control
Termination, the Company shall make a lump-sum payment to
Executive equal to five (5) times the sum of (A) Executive's
then-current base salary, as determined pursuant to Section
5(a) and (B) the average amount of the bonuses paid to
Executive pursuant to Section 5(b) for the five (5) preceding
fiscal years.
(ii) For a period of sixty (60) months following
termination of this Agreement, Executive shall continue to be
entitled to all benefits and service credit for benefits under
medical, insurance and other employee benefit plans, programs
and arrangements of the Company as if he were
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still employed under this Agreement and a change in control of
the Company had not occurred.
(d) If, despite the provisions of paragraph (c) above,
benefits under any employee benefit plan shall not be payable or
provided under any such plan to Executive, or Executive's dependents,
beneficiaries and estate, because he is no longer an employee of the
Company, the Company itself shall, to the extent necessary to provide
the full value of such benefits and service credits to Executive,
Executive's dependents, beneficiaries and estate, pay or provide for
payment of such benefits and service credit for such benefits to
Executive, his dependents, beneficiaries and estate.
12. Additional Provisions Relating to Termination.
(a) The Company is aware that it is possible that the
Board of Directors or shareholders of the Company may at some time in
the future cause or attempt to cause the Company (i) to fail or refuse
to comply with its obligations under this Agreement, (ii) to institute
litigation seeking to have this Agreement declared unenforceable or
(iii) to take action to deny Executive the benefits intended by this
Agreement. In any such circumstance, the parties acknowledge and agree
that the purposes of this Agreement would be frustrated. It is the
Company's intent that Executive neither be required to incur any costs
or expenses associated with enforcement of this Agreement by litigation
or other legal action, nor be bound to negotiate any settlement of his
rights under this Agreement, because the costs and expenses of any such
legal action or settlement would detract from the benefits intended to
be provided to Executive under this Agreement. Accordingly, if (x) the
Company has failed or refused to comply with any of its obligations
under this Agreement whatsoever, (y) any person institutes litigation
seeking to have this Agreement declared unenforceable or (z) any person
takes action to deny, diminish or recover any benefits intended to be
provided or provided to Executive by this Agreement, and Executive has
complied with all of his material obligations under the terms of this
Agreement, the Company irrevocably authorizes Executive from time to
time to retain legal counsel of his choice, at the sole cost and
expense of the Company, as provided in this Section 12(a), to represent
Executive in connection with the initiation or defense of any
litigation or other legal action, whether such action is by or against
the Company or any director, officer, shareholder or other person
affiliated with the Company, in any jurisdiction. The reasonable fees
and expenses of such legal counsel selected by Executive from time to
time shall be paid or reimbursed by the Company on a regular periodic
basis upon presentation by Executive of a statement or statements
prepared by such counsel, up to a maximum aggregate amount of $500,000.
Any costs and expenses incurred by the Company by reason of any dispute
between the parties with respect to any dispute related to this
Agreement, notwithstanding the outcome of any such dispute, shall be
the sole responsibility of the Company, and the Company shall not take
any action to seek
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payment or reimbursement from Executive (or his estate) for any such
costs and expenses.
(b) The amounts payable to Executive upon any termination
or expiration of this Agreement shall be considered severance pay in
consideration of past services rendered on behalf of the Company and
his continued service from the Effective Date of this Agreement to the
date he becomes entitled to such payments, and the parties acknowledge
and agree that all such compensation constitutes wage payments under
the Indiana Wage Payment Statute. Executive shall have no duty to
mitigate his damages by seeking other employment and, should Executive
actually receive compensation from any such other employment, the
payments required under this Agreement shall not be reduced or offset
by any such other compensation.
(c) "Good reason," as used in this Agreement, shall mean
the occurrence of any of the following events, without Executive's
prior written consent:
(i) a change in Executive's status, position or
the nature or scope of Executive's responsibilities and
authorities that, in the reasonable judgment of Executive, do
not represent a promotion from his status, position or
responsibilities and authorities in existence immediately
prior to the termination of this Agreement (with respect to
Section 9(f)) or change in control (with respect to Section
11(b)), as applicable;
(ii) the assignment to Executive of any duties or
responsibilities that, in the reasonable judgment of
Executive, are inconsistent with his status, position or
responsibilities and authorities;
(iii) any removal of Executive from or failure to
reappoint or reelect Executive to any positions held by him
immediately prior to the termination of this Agreement (with
respect to Section 9(f)) or change in control (with respect to
Section 11(b)), as applicable;
(iv) any breach by the Company of any provision
of this Agreement;
(v) with respect to a change in control, the
reasonable determination by Executive that, as a result of a
change in circumstances significantly affecting his position,
he is unable to exercise his authorities, powers, functions or
duties in existence immediately prior to the change in
control;
(vi) the Company's principal executive offices
are moved outside the geographic area consisting of Xxxxxxxx
County, Indiana, and the counties contiguous to Xxxxxxxx,
County, Indiana, or Executive's
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office is located at any location other than the Company's
principal executive offices;
(vii) with respect to any change in control, any
substantial increase in required travel for the Company's
business in excess of Executive's travel obligations prior to
the change in control;
(viii) the failure by the Company to continue to
provide Executive with benefits substantially similar to those
enjoyed by him or to which he was entitled under any of the
Company's pension, profit sharing, life insurance, medical,
dental, health and accident or disability plans;
(ix) with respect to a change in control, the
Company's failure to obtain a satisfactory agreement from any
successor of the Company to agree to perform all of the terms
of this Agreement; or
(x) any request by the Company that Executive
participate in an unlawful act or take any action or omit to
take any action constituting a breach of Executive's
professional standard of conduct.
(d) In addition to any payments, termination benefits or
any other benefits Executive is entitled to receive under this
Agreement, upon the expiration of this Agreement or in the event that
this Agreement is terminated for any reason other than pursuant to
Section 9(b), 9(c) or 9(e) or a Control Termination (which is addressed
in Section 11), the Company agrees to pay the Payment Amount (as
defined below) to the Executive in a lump-sum payment within thirty
(30) days after the termination of this Agreement. The "Payment Amount"
means the amount, as of the date of termination of Executive's
employment, determined by multiplying (i) the number of shares of
common stock of the Company then subject to unexercised options
("Unexercised Options") held by the Executive that were granted by the
Company or an affiliate of the Company by (ii) the result of
subtracting the option price for such shares from the Termination
Market Price of such shares (as defined below). For purposes of this
Section 12(d), Unexercised Options shall include all outstanding
options whether or not they are exercisable at the time of the election
by Executive. Upon payment by the Company of the Payment Amount in
accordance with this Section 12(d), the Unexercised Options shall be
deemed to be surrendered by the Executive and canceled by the Company.
Such cancellation shall be effective regardless of whether the
Executive surrenders an agreement relating to any Unexercised Option.
For purposes of this Section 12(d), "Termination Market Price" for the
shares means the greater of (A) the highest sales price of the shares
during the preceding six (6) month period, (B) the book value per share
of the shares (diluted and as reported) and (C) the book value per
share of the shares (diluted and excluding unrealized gain (loss) on
securities).
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(e) Notwithstanding anything in this Agreement to the
contrary, Executive's (or his legal representative's) right to
terminate this Agreement as provided in Section 12(c) and (d) shall not
be affected by Executive's mental or physical incapacity.
13. Tax Indemnity Payments.
(a) Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of Executive, whether
paid or payable or distributed or distributable pursuant to the terms
of the Agreement or otherwise but determined without regard to any
additional payments required under this Section 13 (a "Payment"), would
be subject to the excise tax imposed by Section 4999 of the Code, or
any successor provision (collectively, "Section 4999"), or any interest
or penalties are incurred by Executive with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that, after payment by Executive
of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any Federal, state or
local income and employment taxes and Excise Tax (and any interest and
penalties imposed with respect to any such taxes) imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 13(c), all
determinations required to be made under this Section 13, including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the Company's public accounting firm
(the "Accounting Firm"), which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from Executive that there has
been a Payment, or such earlier time as is requested by the Company. In
the event that the Accounting Firm is serving as accountant or auditor
for the individual, entity or group effecting the Change in Control,
Executive shall appoint another nationally recognized public accounting
firm to make the determinations required under this Agreement (which
accounting firm shall then be referred to as the Accounting Firm under
this Agreement). All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 13, shall be paid by the Company to Executive
within five (5) days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion
that failure to report the Excise Tax on Executive's applicable federal
income tax return would not result in the imposition of a negligence or
similar penalty. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a
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result of the uncertainty in the application of Section 4999 at the
time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments that will not have been made by the
Company should have been made by the Company ("Underpayment"),
consistent with the calculations required to be made under this
Agreement. In the event that the Company exhausts its remedies pursuant
to Section 13(c) and Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of, or result in a change in the
amount of the payment by the Company of, the Gross-Up Payment. Such
notification shall be given as soon as practicable after Executive is
informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to
be paid; provided that the failure to give any notice pursuant to this
Section 13(c) shall not impair Executive's rights under this Section 13
except to the extent the Company is materially prejudiced thereby.
Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which Executive gives such notice
to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company
notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall: (i) give the
Company any information reasonably requested by the Company relating to
such claim, (ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Company, (iii) cooperate with the Company in good faith in order to
contest such claim and (iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company
shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income, employment or other tax
(including interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and expenses.
(d) If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 13(c), Executive becomes
entitled to receive, and receives, any refund with respect to such
claim, Executive shall (subject to the Company's complying with the
requirements of Section 13(c)) promptly pay to the Company the amount
of such refund.
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14. Payment for Options.
(a) In the event of a Control Termination of this
Agreement, Executive may elect, within sixty (60) days after such
Control Termination, to receive (in addition to any other amounts owed
to Executive under this Agreement) a lump-sum payment in cash equal to
the sum of the following: (i) all or any portion of the number of
shares of common stock of the Company which may be acquired pursuant to
options granted by the Company and held by Executive at the time of
such election, multiplied by the Standard Management Put Price; plus
(ii) all or any portion of the number of Successor Securities which may
be acquired pursuant to options (which options were granted to
Executive in exchange or substitution for options to acquire the common
stock of the Company) held by Executive at the time of such election,
multiplied by the Successor Security Put Price; plus (iii) the number
of shares of common stock of the Company which were acquired pursuant
to options granted by the Company which were exercised, or which were
discharged and satisfied by the payment to Executive of cash or other
property (other than options for Successor Securities), in connection
with the change in control subsequent to the first public announcement
of the transaction or event which led to the change in control,
multiplied by the respective per share exercise prices of such
exercised or discharged options. For purposes of calculating the above
lump-sum payment, the options described in clauses (i) and (ii) shall
include all such options, whether or not then exercisable, and, to
compensate Executive for the loss of the potential future speculative
value of unexercised options, there shall not be any deduction of the
respective per share exercise prices for any of the options described
in such clauses (i) and (ii). The cash payment due from the Company
pursuant to this Section 13 shall be made to Executive within ten (10)
days after the date of such election under this Agreement, against the
execution and delivery by Executive to the Company of an appropriate
agreement confirming the surrender to the Company of the options in
respect of which the lump-sum cash payment is being made to Executive.
(b) "Change in Control Price" means (i) in the case of a
change in control which occurs solely as a result of a change in the
composition of the Board of Directors of the Company or which occurs in
a transaction, or series of related transactions, in which the same
consideration is paid or delivered to all of the holders of common
stock of the Company (or, in the event of an election by holders of the
common stock of the Company of different forms of consideration, if the
same election is offered to all of the holders of common stock of the
Company) or which occurs as a result of the Board of Directors'
approval of a plan of complete liquidation or an agreement for the sale
or disposition of all or substantially all of the assets of the Company
or an agreement for the sale or disposition of the stock or assets of a
subsidiary or division of the Company representing at least fifteen
percent (15%) of the value of the Company on a consolidated basis at
the time of such approval, the Price per share of the common stock of
the Company on the date on which the change in control occurs, or if
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such date is not a trading day, then the trading day immediately prior
to such date, or (ii) in the case of a change in control effected
through a series of related transactions, or in a single transaction in
which less than all of the outstanding shares of common stock of the
Company is acquired, the highest price paid to the holders of common
stock of the Company in the transaction or series of related
transactions whereby the change in control takes place. In determining
the highest price paid to the holders pursuant to clause (ii) of the
immediately preceding sentence, in the case of Successor Securities
paid or delivered to the holders of common stock of the Company in
exchange, payment or substitution for, or upon conversion of, the
common stock of the Company, the price paid to such holders shall be
the Price of such security at the time or times paid or delivered to
such holders.
(c) "Current Market Price" for any security means the
highest sales price of such security during the six (6) month period
prior to the termination of this Agreement.
(d) "Exchange Ratio" means, in connection with a change
in control, the number of Successor Securities to be paid or delivered
to the holders of common stock of the Company in exchange, payment or
substitution for, or upon conversion of, each share of such common
stock.
(e) "Price" for any security means the average of the
highest and lowest sales price of such security on a trading day as
shown on the Composite Tape of the New York Stock Exchange (or, if such
security is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which such
security is listed or admitted to trading) or, in case no sales take
place on such day, the average of the closing bid and asked prices on
the New York Stock Exchange (or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which such security is listed or
admitted to trading) or, if it is not listed or admitted to trading on
any national securities exchange, the average of the highest and lowest
sales prices of such security on such day as reported by the NASDAQ
Stock Market, or in case no sales take place on such day, the average
of the closing bid and asked prices as reported by NASDAQ, or if such
security is not so reported, the average of the closing bid and asked
prices as furnished by any securities broker-dealer of recognized
national standing selected from time to time by the Company (or its
successor in interest) for that purpose.
(f) "Standard Management Put Price" means the greater of
(i) the Change in Control Price or (ii) the Current Market Price of the
common stock of the Company.
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(g) "Successor Security Put Price" means the greater of
(i) the Change in Control Price divided by the Exchange Ratio or (ii)
the Current Market Price of the Successor Securities.
(h) "Successor Securities" means any securities of any
person received by the holders of the common stock of the Company in
exchange, substitution or payment for, or upon conversion of, the
common stock of the Company in connection with a change in control.
15. Covenant Against Competition. Executive acknowledges that the
services he is to render to the Company are of a special and unusual character,
with a unique value to the Company, the loss of which cannot adequately be
compensated by damages or an action at law. In view of the confidential
information to be obtained by, or disclosed by the Company to, Executive, and as
a material inducement to the Company to enter into this Agreement, Executive
covenants and agrees that during the term of this Agreement and for two (2)
years thereafter, Executive shall not, directly or indirectly, anywhere within
the State of Indiana (i) render any services, as an agent, independent
contractor, consultant or otherwise, or become employed or compensated by, any
other corporation, person or entity engaged in the business of selling or
providing life, accident or health insurance products or services; (ii) render
any services, as an agent, independent contractor, consultant or otherwise, or
become employed or compensated by, any other corporation, person or entity
engaged in the business of selling or providing any lending or other financial
products or services that are competitive with the lending or other financial
products or services sold or provided by the Company or its subsidiaries, (iii)
in any manner compete with the Company or any of its subsidiaries; or (iv)
solicit or attempt to convert to other insurance carriers, finance companies or
other corporations, persons or other entities providing these same or similar
products or services provided by the Company and its subsidiaries, any customers
or policyholders of the Company, or any of its subsidiaries; provided, however,
that Executive may be a shareholder of less than five (5%) percent of the
outstanding shares of voting stock of any company listed on a recognized stock
exchange or traded in the NASD over-the-counter market. The covenants of
Executive in this Section 15 shall be void and unenforceable if this Agreement
is terminated pursuant to a Control Termination as defined in Section 11(b). In
addition, the covenants of Executive in this Section 15 shall be void and
unenforceable if the Company terminates this Agreement without cause or Employee
terminates this Agreement with good reason. Should any particular covenant or
provision of this Section 15 be held unreasonable or contrary to public policy
for any reason, including without limitation, the time period, geographical
area, or scope of activity covered by any restrictive covenant or provision, the
Company and Executive acknowledge and agree that such covenant or provision
shall automatically be deemed modified such that the contested covenant or
provision shall have the closest effect permitted by applicable law to the
original form and shall be given effect and enforced as so modified to whatever
extent would be reasonable and enforceable under applicable law.
16. Arbitration of Disputes; Injunctive Relief. Any controversy or
claim arising out of or relating to this Agreement or the breach thereof, shall
be settled by binding arbitration in the City of Indianapolis, Indiana, in
accordance with the laws of the State of Indiana by three arbitrators, one of
whom shall be appointed by the Company, one by Executive
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and the third of whom shall be appointed by the first two arbitrators. If the
first two arbitrators cannot agree on the appointment of a third arbitrator,
then the third arbitrator shall be appointed by the Chief Judge of the United
States District Court for the Southern District of Indiana. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators, which shall be
as provided in this Section. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. In the event that it
shall be necessary or desirable for Executive to retain legal counsel and/or
incur other costs and expenses in connection with the enforcement of any and all
of his rights under this Agreement, the Company shall pay (or Executive shall be
entitled to recover from the Company, as the case may be) his reasonable
attorneys' fees and costs and expenses in connection with such rights,
regardless of the final outcome, unless the arbitrators shall determine that
under the circumstances recovery by Executive of all or a part of any such fees
and costs and expenses would be unjust.
17. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and if sent by certified or
registered mail, postage prepaid, return receipt requested, to the addresses
below, or to such other address as a party may from time to time indicate in
writing to the other:
If to Executive:
Xxxxxx X. Xxxxxx
00000 Xxxxx Xxxxxxxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
If to the Company:
Standard Management Corp.
00000 Xxxxx Xxxxxxxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: President
Any notice of termination provided by a party to the other party must indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances alleged to provide the
basis for termination.
18. Waiver of Breach and Severability. The waiver by either party
of a breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach by either party. In
the event any provision of this Agreement is found to be invalid or
unenforceable, it may be severed from the Agreement and the remaining provisions
of the Agreement shall continue to be binding and effective.
19. Entire Agreement. This instrument contains the entire
agreement of the parties. It may not be changed orally, but only by an agreement
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement supersedes and
replaces all prior employment and compensation
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agreements, understandings and arrangements between Executive and the Company.
This Agreement shall have no effect upon any existing stock option agreements
between Executive and the Company.
20. Binding Agreement; Governing Law; Assignment. This Agreement
shall be binding upon and shall insure to the benefit of the parties and their
successors in interest and shall be construed in accordance with and governed by
the laws of the State of Indiana. This Agreement is personal to each of the
parties to this Agreement, and neither party may assign or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the other party.
21. Survival. Sections 6 (Compensation Guarantee), 8 (Disclosure
of Information), 10 (Effect of Termination), 11 (Change in Control; Payments for
Control Termination), 12 (Additional Provisions Relating to Termination), 13
(Tax Indemnity Payments), 14 (Payments for Options), 15 (Covenant Against
Competition), 16 (Arbitration of Disputes; Injunctive Relief), 17 (Notices), 20
(Binding Agreement; Governing Law; Assignment).and 21 (Survival) of this
Agreement shall survive any termination or expiration of this Agreement.
22. Joint Drafting. This Agreement has been prepared jointly by
the parties and their respective advisors and legal counsel and shall not be
strictly construed against either party.
23. Advisors Consulted. Each party hereby acknowledges and agrees
that each (a) has read this Agreement in its entirety prior to executing it, (b)
understands the provisions and effects of this Agreement and (c) has consulted
with such advisors as each has deemed appropriate in connection with its or his
respective execution of the Agreement.
[SIGNATURES ON FOLLOWING PAGE
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"Company" "Executive"
STANDARD MANAGEMENT
CORPORATION
By: /s/ Martial X. Xxxxxxx, M.D. /s/ Xxxxxx X. Xxxxxx
-------------------------------- -----------------------
Martial X. Xxxxxxx, M.D., Xxxxxx X. Xxxxxx
Chairman, Compensation Committee
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