EXHIBIT 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
This agreement ("Agreement") has been entered into this 16th day
of December, 1998, by and between Equity Underwriting Group, Inc., a
Kentucky corporation ("Subsidiary"), and Xxxx X. Xxxxx, an individual
("Executive"), in connection with and as further mutual consideration
for the sale of Subsidiary by Executive to Unified Financial Services,
Inc., a Delaware corporation ("Company"), pursuant to that certain
Agreement and Plan of Merger between Company and Equity Acquisition
Corporation, a Kentucky corporation, as Buyers, and Subsidiary and
Executive, as Sellers, dated October 16, 1998, as amended by that
certain First Amendment to Agreement and Plan of Merger, dated December
14, 1998 (collectively, the "Agreement and Plan of Merger").
RECITALS
The Board of Directors of Subsidiary (the "Board") has determined
that it is in the best interests of Subsidiary and its stockholder to
reinforce and encourage the continued attention and dedication of the
Executive to Subsidiary as a member of Subsidiary"s management and to
assure that Subsidiary will have the continued dedication of the
Executive. The Board desires to provide for the continued employment of
the Executive on the terms hereof, and the Executive is willing to
commit himself to continue to serve Subsidiary. Additionally, the Board
believes it is imperative to encourage the Executive's full attention
and dedication to Subsidiary currently and to provide the Executive with
compensation and benefits arrangements upon certain breaches of this
Agreement by Subsidiary, which ensures that the compensation and
benefits expectations of the Executive will be satisfied. Because of
the Executive's high position at the Subsidiary and his access to
information pertaining to the business of the Company (as conducted by
its other affiliates), Company and the Subsidiary believe it is
imperative that the Executive neither compete against the Company, the
Subsidiary and any affiliates or subsidiaries of either nor share
certain confidential information of either during the Executive's
employment and for the three-year period thereafter, as provided below.
Therefore, in order to accomplish these objectives, the Board has caused
Subsidiary to enter into this Agreement. Executive acknowledges that
his assent to, and fulfillment of, the terms and conditions of this
Agreement is an indispensable element of the consideration provided by
Executive pursuant to the Agreement and Plan of Merger. Therefore, in
exchange for the mutual promises and covenants set forth herein, and in
order to accomplish these objectives, the Board has caused Subsidiary to
enter into this Agreement with the Executive, whereupon
IT IS AGREED AS FOLLOWS:
Section 1: Definitions and Construction.
1.1 Definitions. For purposes of this Agreement, the following
words and phrases, whether or not capitalized, shall have the meanings
specified below, unless the context plainly requires a different
meaning. Terms not set forth in this Section 1.1 but defined elsewhere
in this Agreement shall for all purposes of this Agreement have such
defined meaning, whether or not capitalized, unless the context plainly
requires a different result.
1.1(a) "Board" means the Board of Directors of
Subsidiary.
1.1(b) "Code" shall mean the Internal Revenue Code of
1986, as amended, including all regulations
proposed or promulgated thereunder, and
administrative
interpretations and judicial precedents relating
thereto. All citations to the Code shall include
any amendments or any substitute or successor
provisions thereto.
1.1(c) "Company" shall mean Unified Financial Services,
Inc., a Delaware corporation and the sole
stockholder of Subsidiary.
1.1(d) "Customer" shall mean any Person from which or
from dealings with which any member of the Unified
Group is earning or has earned revenue in the
ordinary course of its business. Dealings shall
include, for example and without limitation,
distribution arrangements, revenue or income
sharing arrangements, commission arrangements and
any other arrangement or contract.
1.1(e) "Effective Date" shall mean December 16, 1998.
1.1(f) "Employment Period" means the period that begins
on the Effective Date and ends on the earlier of:
(i) the close of business on December 31 of the
calendar year that includes the fifth anniversary
of the Effective Date; or (ii) the Date of
Termination as defined in Section 3.6.
1.1(g) "Person" shall include an individual, firm, trust,
estate, association, joint venture, partnership,
corporation, limited liability company,
organization or other entity.
1.1(h) "Subsidiary" means Equity Underwriting Group,
Inc., a Kentucky corporation.
1.1(i) "Unified Group" means, jointly and severally, the
Company and any Person more than twenty percent
(20%) of which (by value and not by voting power)
is directly or indirectly owned by the Company at
any time during the Employment Period, and any
successors or assigns of the Company or any other
Person included in the Unified Group. For example
and without limitation, after the closing of the
transactions contemplated in the Agreement and
Plan of Merger, the Unified Group would include
(i) Subsidiary, as well as any corporation wholly
owned by Subsidiary, (ii) a corporation forty-five
percent (45%) of which (by value) is owned by a
wholly-owned subsidiary of the Company, and (iii)
a corporation (or a partnership) thirty percent
(30%) of which (by value) is owned by the
Subsidiary and thirty percent (30%) of which (by
value) is owned by a wholly-owned subsidiary of
the Company.
1.2 Gender and Number. When appropriate, pronouns in this
Agreement used in the masculine gender include the feminine gender,
words in the singular include the plural, and words in the plural
include the singular.
1.3 Headings. All headings in this Agreement are included
solely for ease of reference and do not bear on the interpretation of
the text. Accordingly, as used in this Agreement, the terms "Article"
and "Section" mean the text that accompanies the specified Article or
Section of this Agreement.
1.4 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth, without
reference to its conflict of law principles.
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Section 2: Terms and Conditions of Employment.
2.1 Period of Employment. Throughout the Employment Period, the
Executive shall serve in the employ of Subsidiary in accordance with the
terms and provisions of this Agreement.
2.2 Positions and Duties.
2.2(a) Throughout the Employment Period, the Executive
shall be the President of Subsidiary. The Executive shall render
administrative and management services as are customarily
performed by persons situated in similar executive capacities,
including presidents of other subsidiaries of the Company, shall
render such other services as he has rendered in the past to
Subsidiary, and may have such other powers and duties as may from
time to time be prescribed by the Board.
2.2(b) Throughout the Employment Period (but excluding
any periods of vacation and sick leave to which he is entitled),
the Executive shall devote his full professional attention and
time to the business and affairs of Subsidiary, shall not render
professional services to or for the benefit of Persons not members
of the Unified Group, and shall use his reasonable best efforts to
perform faithfully and efficiently such responsibilities as are
assigned to him under or in accordance with this Agreement;
provided that, it shall not be a violation of this paragraph for
the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures or fulfill speaking
engagements, or (iii) manage personal investments for the
Executive's own account or those of family members, so long as
such activities do not interfere with the performance of the
Executive's responsibilities as a senior executive officer of the
Subsidiary in accordance with this Agreement.
2.3 Compensation. The Executive's annual compensation and other
benefits described in this Section 2.3 shall be provided by Subsidiary.
2.3(a) Annual Base Salary. For the first two-year period
within the Employment Period, the Executive shall receive an
annual base salary of $180,000.00 (the "Initial Base Salary"),
which shall be due and paid in equal or substantially equal
installments, to be paid at the same frequency as other employees
of Subsidiary but no less often than monthly. Thereafter, during
the Employment Period, the annual base salary payable to the
Executive shall be reviewed at least annually beginning upon the
second anniversary of the Effective Date and upon each anniversary
date thereafter, but need not be adjusted upward as a result of
such review and shall not be reduced below the Initial Base
Salary. "Annual Base Salary" as used herein shall mean the annual
base salary for a then current year.
2.3(b) Welfare Benefit Plans. Throughout the Employment
Period, the Executive and/or the Executive's family, as the case
may be, shall be eligible for participation in all welfare benefit
plans, practices, policies and programs provided by Subsidiary
(including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent generally available to other senior executive
officers of the Subsidiary.
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2.3(c) Expenses. Throughout the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures
generally applicable to other peer executives of the Company's
operating subsidiaries; provided, however, that all reimbursements
must satisfy the record keeping policies of the Company.
2.3(d) Vacation. Throughout the Employment Period, the
Executive shall be entitled to four (4) weeks paid vacation.
2.3(e) Executive's Rights Nonassignable. The right to
receive Initial Base Salary, the Annual Base Salary and other
benefits hereunder shall be a personal right of the Executive and
shall not be extinguished by the death of the Executive. Such
right shall not be transferable by the Executive other than
pursuant to the laws of descent and distribution.
2.4 Indemnification. The Company and Subsidiary
desire to have Executive serve as an officer and employee of
Subsidiary, free from undue concern for unpredictable,
inappropriate or unreasonable legal risks and personal liabilities
by reason of his acting in good faith in the performance of his
duties to Subsidiary and will, therefore indemnify Executive
against any and all claims of insurance agencies against Executive
for Executive's liability (primary, secondary or as guarantor)
under any agency agreements between third party insurance
companies and Subsidiary or Executive, but only to the extent such
claims arise from the Subsidiary's failure to pay over premiums
received after the Effective Date. Executive desires to serve as
an officer and employee of Subsidiary, as long as he is furnished
with the indemnity set forth herein.
Section 3: Termination of Employment.
3.1 Death. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period.
3.2 Disability. If Subsidiary determines in good faith that the
Disability of the Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), it may give
to the Executive written notice in accordance with Section 8.3 of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with Subsidiary shall terminate effective on the
thirtieth (30th) day after receipt of such notice by the Executive (the
"Disability Effective Date"), provided that, within the thirty (30) days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean that the Executive has been unable to perform
the services required of the Executive hereunder on a full-time basis
for a period of one hundred eighty (180) consecutive days by reason of a
physical and/or mental condition. "Disability" shall be deemed to exist
when certified by a physician selected by the Company or its insurers
and acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably).
The Executive will submit to such examinations and tests as such
physician deems necessary to make any such Disability determination.
3.3 Termination for Cause. Subsidiary may terminate the
Executive's employment during the Employment Period for "Cause," which
for the purposes of this Agreement shall mean termination based upon:
(i) the Executive's continued failure to perform substantially his
duties with Subsidiary (other than as a result of incapacity due to
physical or mental condition), after a demand for substantial
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performance is delivered to him by the Chairman of the Board or the
President of the Subsidiary or the Chairman of the Board of the Company,
which specifically identifies the manner in which the Executive has not
substantially performed his duties; (ii) the Executive's commission of
misconduct that is materially injurious to Subsidiary, monetarily or
otherwise; or (iii) the Executive's material breach of any provision of
this Agreement. Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for Cause unless and until (i) he is
given a Notice of Termination (as defined in Section 3.5) from the
Chairman of the Board or the President of the Subsidiary or the Chairman
of the Board of Directors of the Company, (ii) he is given the
opportunity to be heard before the Board of Directors of the Company,
and (iii) the Board of Directors of the Company finds, in its good faith
opinion and at its sole discretion, that the Executive was guilty of the
conduct set forth in the Notice of Termination.
3.4 Good Reason. The Executive may terminate his employment with
Subsidiary for "Good Reason," which shall mean termination based upon,
and only upon:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as contemplated by Section 2.2 or any
other action by Subsidiary that results in a material
diminution in such position, authority, duties or
responsibilities, excluding for this purpose any
action not taken in bad faith; or
(ii) (a) the failure by Subsidiary to provide benefits
commensurate with any welfare benefit plan, practice,
policy or program, including any life insurance plan,
health and accident plan or disability plan, to which
the Executive is entitled as specified in Section
2.3(b), (b) the taking of any action by Subsidiary
that would adversely affect the Executive's
participation in, or materially reduce the Executive's
benefits under, any plans described in Section 2.3(b),
or (c) the failure by Subsidiary to provide the
Executive with the number of paid vacation days to
which the Executive is entitled as described in
Section 2.3(d).
Termination for Good Reason may be effected by, and only by, written
notice to the Company stating with particularity each action or
condition constituting the Good Reason, sufficient in detail such that
the corrective measures necessary to cure such action(s) or condition(s)
may be readily inferred from the face of the notice. During the ninety-
day period following receipt of such notice by the Company, the
Executive shall use his best efforts to cooperate with the Company and
Subsidiary to cure the action(s) or condition(s) set forth in the
Executive's notice. If a cure is commercially reasonable and neither
the Company nor Subsidiary takes sufficient steps within such ninety-day
period to effectuate a cure, then and only then may the Executive
terminate his employment for Good Cause. Failure of Executive to set
forth in such notice any fact or circumstance that contributes to a
showing of Good Cause shall waive any right of the Executive to assert
such fact or circumstance in enforcing the Executive's rights under this
Agreement.
3.5 Notice of Termination. Any termination by Subsidiary or by
the Executive (including terminations in breach of this Agreement) shall
be communicated by Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of Termination" means a written
notice given in accordance with Section 8.3 that (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and
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(iii) if the Date of Termination (as defined below) is other than the
date such notice is given, specifies the termination date (which date
shall be not more than thirty (30) days after the giving of such
notice). The failure by the Executive or Subsidiary to set forth in the
Notice of Termination any fact or circumstance that contributes to a
showing of Good Reason or Cause shall waive any right of the Executive
or Subsidiary to assert such fact or circumstance in enforcing the
Executive's or Subsidiary's rights hereunder.
3.6 Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by Subsidiary for Cause, or by the
Executive for Good Reason, the Date of Termination shall be the date the
Notice of Termination is given or any later date (within the thirty-day
limit provided in Section 3.5) specified therein, as the case may be,
(ii) if the Executive's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the
Executive or the Disability Effective Date, as the case may be, (iii) if
the Executive's employment is terminated by Subsidiary other than for
Cause, death or Disability, the Date of Termination shall be the date
the Notice of Termination is given or any later date (within the thirty-
day limit provided in Section 3.5) specified therein, as the case may
be, or (iv) if the Executive shall terminate employment with Subsidiary
for any reason other than for Good Reason, the Date of Termination shall
be the date the Executive shall terminate his employment with Subsidiary
or, if not more than thirty (30) days later, the date specified in the
Notice of Termination.
Section 4: Certain Benefits Upon Termination.
4.1 Termination Without Cause or Termination for Good Reason.
If during the Employment Period (i) Subsidiary shall terminate the
Executive's employment without Cause, or (ii) the Executive shall
terminate employment with Subsidiary for Good Reason, the Executive
shall be entitled to the benefits provided below:
4.1(a) "Accrued Obligations": On or before the
ninetieth (90th) day following the Date of
Termination, Subsidiary shall pay to the Executive
the sum of (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not
previously paid, (2) any compensation previously
deferred by the Executive (other than pursuant to
the terms of this Agreement) together with any
accrued interest or earnings thereon, and (3) any
accrued vacation pay; in each case to the extent
not previously paid.
4.1(b) "Annual Base Salary Continuation": For the
remainder of the period described in Section 1.1
(f)(i) (which period ends on December 31 of the
fifth full calendar year succeeding the Effective
Date) that occurs after the Date of Termination, if
any, Subsidiary shall pay to the Executive, the
Executive's then-current Annual Base Salary as
would have been paid to the Executive had the
Executive remained in Subsidiary's employ at such
salary during the remainder of such period.
Subsidiary at any time may elect to pay the balance
of such payments then remaining in a lump sum, in
which case the total of such payments shall be
discounted to present value as determined according
to Code Section 280G(d)(4).
4.2 Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to the
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Executive's legal representatives under this Agreement, other than for
timely payment of Accrued Obligations (as defined in Section 4.1(a)).
4.3 Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive,
other than for timely payment of Accrued Obligations (as defined in
Section 4.1(a)).
4.4 Termination for Cause; Termination Other Than for Good
Reason. If the Executive's employment shall be terminated for Cause
during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than for timely payment of
Accrued Obligations (as defined in Section 4.1(a)). If the Executive
terminates employment with Subsidiary during the Employment Period
(excluding a termination for Good Reason), this Agreement shall
terminate without further obligations to the Executive, other than for
timely payment of Accrued Obligations (as defined in Section 4.1(a)).
4.5 Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in
any plan, program, policy or practice provided by Subsidiary and for
which the Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any other
contract or agreement with Subsidiary. Vested benefits which the
Executive is otherwise entitled to receive under any plan, policy,
practice or program of, or any contract or agreement with, Subsidiary at
or subsequent to the Date of Termination, shall be payable in accordance
with such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
4.6 Full Settlement; Executive Has No Duty of Mitigation. The
payments and arrangements set forth in this Section 4 are in full
settlement of any and all claims of the Executive under this Agreement,
and neither the Subsidiary, the Company nor any other member of the
Unified Group shall have any other obligation to Executive after
Executive's Date of Termination. The Executive shall not be required to
mitigate the amount of any payment provided for in this Section by
seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Section be reduced by any compensation
earned by the Executive as the result of employment by another employer
after the Date of Termination, or otherwise. The payments and
arrangements in this Section 4 constitute further consideration for the
Executive's covenants set forth in Section 5, and the Executive agrees
that he shall abide by the terms of Section 5 in their entirety and
acknowledges that Section 5 continues to apply after any termination of
employment (other than a termination described in Section 4.2).
Section 5: Non-Competition.
5.1 Non-Compete Agreement. It is agreed that during the
Employment Period and until the later of (i) the date five (5) years
after the date hereof or (ii) the date three (3) years after the Date of
Termination (such period of time, the "Restricted Period"), the
Executive shall not, directly or indirectly, render services of any
nature within the Relevant Market Area (as defined herein) as an
employee, agent, representative, consultant, partner or otherwise, to or
for the direct or indirect benefit of any business that competes with
any member of the Unified Group. The Relevant Market Area is the area
within the fifty-mile radius of (i) each office maintained by the
Subsidiary at any time during the Employment Period, and (ii) each
office maintained by the Company at any time during the Employment
Period, and (iii) each office maintained by any other member of the
Unified Group during the Employment Period. In addition, during the
Restricted Period, the Executive shall not, directly or indirectly,
either as an
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individual, partner or a joint venturer, or in any other capacity,
invest in, own or have any arrangement to acquire (whether by option or
otherwise) an interest in any Person or business that is competitive
with any member of the Unified Group, excluding any interest in a
publicly traded company which constitutes not more than one per cent
(1%) by value of the equity securities of such company. For the
purposes of this Section 5.1, the noncompete obligations of Executive
shall not apply to the resort, entertainment or aviation industries.
5.2 Non-Solicitation of Employees. It is agreed that during the
Restricted Period, Executive shall not, either directly or indirectly,
approach or solicit (i) any Person employed by the Subsidiary at any
time during the Employment Period, (ii) any Person employed by the
Company at any time during the Employment Period, and (iii) any Person
employed by any other member of the Unified Group at any time during the
Employment Period, with a view towards enticing such Person to work for
the Executive or any other Person.
5.3 Non-Solicitation of Customers. It is agreed that during the
Restricted Period, Executive shall not, either directly or indirectly,
approach or solicit (i) any Person who was a Customer of the Subsidiary
at any time during the Employment Period, (ii) any Person who was a
Customer of the Company at any time during the Employment Period and in
respect of which the Executive had direct or indirect contact or gained
Confidential Information (as defined in Section 5.4) during such period,
and (iii) any Person who was a Customer of any other member of the
Unified Group at any time during the Employment Period and in respect of
which the Executive had direct or indirect contact or gained
Confidential Information during such period, if such direct or indirect
approach or solicitation (x) is made with a view towards diverting or
attempting to divert business from the Company, the Subsidiary or any
other member of the Unified Group, or (y) consists of any action or
communication that disparages or depreciates, or tends to disparage or
depreciate, the reputation, business practices, future business
prospects, policies or personnel (including officers, directors and
employees) of any member of the Unified Group.
5.4 Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean any communication disclosed to the
Executive or known by the Executive as a consequence of or through his
past, present or prospective employment or business relationship with
the Unified Group, not generally known and available in the Unified
Group's industries, which constitutes the Unified Group's (including
Company's and Subsidiary's) proprietary and non-public method(s) of
doing business, including, but not limited to, any information related
to trade secrets, pricing formulas, know-how, test data, Customer lists,
vendor lists, training and operating manuals, software and reporting
systems. The Subsidiary and the Executive acknowledge that during the
Executive's period of employment by Subsidiary, the Unified Group will
furnish the Executive with Confidential Information. The Executive
agrees both during his employment with the Subsidiary, whether under
this Agreement or otherwise, and at all times thereafter, that the
Executive, his officers, directors, partners, employees, affiliates,
agents, representatives or assigns (collectively "Representatives")
shall keep all Confidential Information in the strictest confidence and
shall not discuss, publish, communicate, transmit, reproduce or
otherwise disclose such Confidential Information, in any manner
whatsoever, in whole or in part, without the prior written consent of
the Company, unless and until such time as the Confidential Information
becomes generally known in the Unified Group's industries other than
through breach of this Agreement. Any written consent by the Company to
the Executive's disclosure of Confidential Information, if given, shall
in no way operate as a waiver of the Executive's obligation to maintain
the confidential nature of the material disclosed or to protect and
preserve that Confidential Information from disclosures so that it will
receive confidential treatment thereafter. The Executive agrees to
reimburse
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Company for any damages sustained and costs and expenses, including
attorneys' fees, incurred in connection with an unauthorized disclosure
of Confidential Information by the executive, his Representatives or any
other person or persons to whom the Executive or his Representatives
previously had disclosed Confidential Information.
5.5 Reasonableness of Covenants. The Executive acknowledges and
agrees that the covenants and agreements contained in this Section 5 are
reasonable, and the Executive agrees he shall not raise any issue of
their reasonableness in any proceeding to enforce such covenants and
agreements.
5.6 Blue Pencilling. In the event any court or other body having
appropriate jurisdiction (including any panel of arbitrators) shall
determine that the area where competition is prohibited, the time period
during which competition is prohibited, the nature or duration of
prohibitions on solicitation of Customers or employees, or any other
term of this Section 5 is overbroad, then the area or time or other term
shall be reduced appropriately as the court or other body may determine
is necessary to make this Section 5 enforceable. The parties
acknowledge that the purpose of this Section 5 is to protect the
goodwill and going concern value of the Subsidiary and the Unified
Group, including those Customer relationships, goodwill and going
concern value purchased in connection with the Agreement and Plan of
Merger, and the parties intend that this Section 5 shall be enforced to
the maximum extent allowed by law.
5.7 Specific Enforcement. The Executive agrees that any
violation or breach by the Executive and/or his Representatives of any
provision of this Section 5 would cause immediate and irreparable harm
to the Unified Group, the exact amount of which will be impossible to
ascertain, and for that reason further agrees that the Unified Group
shall be entitled, as a matter of right, to an injunction out of the
appropriate court of competent jurisdiction (as set forth below),
restraining any further violation or breach of this Agreement by
Executive and/or his Representatives, either directly or indirectly,
such right to an injunction being cumulative and in addition to whatever
remedies the Unified Group may have under applicable law and/or this
Agreement. The Unified Group and the Executive hereby irrevocably
consent to the jurisdiction of the Circuit Court of Fayette County,
Kentucky or, if there is federal jurisdiction, the United States
District Court for the Eastern District of Kentucky. The Unified Group
and the Executive waive any defense of an inconvenient forum to the
maintenance of any action or proceeding brought in such courts in
connection with this Agreement, any objection to venue with respect to
any such action, and any right of jurisdiction on account of the place
of residence or domicile of any party to such action. The remedies of
the Unified Group under this Section 5.7 are not exclusive, and shall
not prejudice any other rights under this Agreement or otherwise. To
the extent required to be enforceable by applicable law, the cessation
of Subsidiary's obligation to make payments or continue benefits under
this Agreement shall be deemed to be in the nature of liquidated damages
and not a penalty.
Section 6: Ownership of Papers and Intellectual Property Rights.
6.1 Papers and Property. Executive acknowledges the Unified
Group's (including Company's and Subsidiary's) exclusive right to
ownership, possession and title to all papers, documents, tapes,
drawings, notebooks, formulas, Customer lists, software, hardware,
trademarks, trade names, service marks, processes, data, intellectual
property, or other records, information or products prepared by the
Executive during employment (past, present and future) with Subsidiary
or provided by Subsidiary, or which otherwise come into the Executive's
possession by reason of employment with Subsidiary. Executive agrees
not to make or permit to be made, except in pursuit of Executive's
duties
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hereunder, any copies of such items. Executive further agrees to
deliver to the Company upon request all such items in Executive's
possession and without request to immediately deliver such items upon
the termination, voluntarily or involuntarily, of Executive's
employment.
6.2 Inventions. The term "Inventions" means all ideas,
inventions and discoveries, whether patentable, copyrightable or not,
made or conceived by the Executive, whether or not during the hours of
his or her employment or with the use of Unified Group's facilities,
materials or personnel, either solely or jointly with others, during the
term of his employment (past, present or future) with any member of the
Unified Group that relates to any present or prospective business of the
Subsidiary or any other member of the Unified Group, including, but not
limited to, software, algorithms, designs, devices, processes, methods,
formulae, techniques, data storage systems, networks, servers and any
improvements to the foregoing.
6.2(a) Report. Executive agrees to promptly disclose all
Inventions to the Company. Executive shall inform the Company
promptly and fully of such Inventions by a written report, setting
forth in detail the structures, procedures and methodology
employed and the results achieved. A report also shall be
submitted by the Executive upon completion of any study or
research project undertaken on behalf of the Subsidiary or any
other member of the Unified Group, whether or not in the
Executive's opinion a given study or project has resulted in an
Invention.
6.2(b) Assignment and Patent. Executive hereby assigns and
agrees to assign to the Subsidiary all of his rights to such
Inventions and to all proprietary rights therein, based thereon or
related thereto, including, but not limited to, applications for
United States and foreign letters patent and resulting letters
patent. Upon the request of the Company or the Subsidiary request
and at the Subsidiary's expense, the Executive shall execute such
documents and provide such assistance as may be deemed necessary
by the Subsidiary to apply for, defend or enforce any United
States and foreign letters patent based on or related to such
Inventions. The Executive agrees to execute all documents
reasonably requested by Company or the Subsidiary to assist the
Subsidiary in perfecting or protecting any or all of its rights in
the Inventions.
6.2(c) Copyright. Executive acknowledges that all
copyrightable Inventions are "works made for hire" and
consequently that the Subsidiary owns all copyrights thereto,
including, but not limited to, 17 U.S.C. Sections 101 and 210.
The Company, the Subsidiary and their successors and assigns shall
have the sole and exclusive right to register the copyright(s) in
all such work in its name as the owner and author of such work and
shall have the exclusive rights conveyed under 17 U.S.C. Sections
106 and 106A, including, but not limited to, the right to make all
uses of the works in which attribution or integrity rights may be
implicated. Additionally, without in any way limiting the
foregoing, the Executive hereby assigns, transfers and conveys to
the Subsidiary, and its successors and assigns, all right, title
or interest that Executive may now have, or may acquire in the
future, to the work including, but not limited to, all ownership,
patent (United States and foreign letters patent), trade secret,
trade names and trademarks, copyright moral, attribution and/or
integrity rights. The Executive hereby expressly and forever
waives any and all rights that Executive may have arising under 17
U.S.C. Section 106A, and any rights arising under any federal,
state, territorial or foreign laws that convey rights which are
similar in nature to those conveyed under 17 U.S.C. Section 106A.
Notwithstanding any provision of the Copyright Act, any and all
copyrightable works constituting Inventions or prepared either in
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whole or in part by the Executive in connection with his
employment are, shall be, or shall become, owned by the
Subsidiary.
Section 7: Arbitration. Notwithstanding any other provision of this
Agreement or the Agreement and Plan of Merger to the contrary, and
excluding the rights of the Unified Group to pursue injunctive relief
pursuant to Section 5.7, any controversy or claim regarding, arising
under or pertaining to this Agreement which cannot be resolved among the
parties themselves shall be resolved solely by binding arbitration in
Lexington, Kentucky. The arbitration panel shall consist of three
arbitrators selected from list(s) of candidates provided by the American
Arbitration Association. The Company shall be entitled to appoint one
arbitrator and the Executive shall be entitled to appoint one
arbitrator. The third arbitrator, who shall be an attorney in good
standing who is licensed to practice law in the Commonwealth of Kentucky
and devotes more than one-half of his or her professional time to the
practice of employment law, shall be chosen by the two arbitrators so
appointed. If any person fails to appoint its arbitrator or to notify
the other person of such appointment within thirty (30) days after the
institution of arbitration proceedings, such other person may request
the President of the American Arbitration Association to appoint such
arbitrator on behalf of the person who so failed. If the two
arbitrators appointed by (or on behalf of) the parties fail to appoint
such third arbitrator, or fail to notify the parties to such proceedings
of such appointment, within thirty (30) days after the appointment of
the later of such two arbitrators to be appointed by (or on behalf of)
the parties, any party may request such President to appoint such third
arbitrator. The President of the American Arbitration Association shall
appoint such arbitrator or such third arbitrator, as the case may be,
within thirty (30) days after the making of such request. The
arbitration shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (which rules
may be modified by a majority of the arbitrators serving) and the
arbitration award, decree and/or order may grant any remedy or relief
deemed by the arbitrators to be just and equitable, including the
reasonable costs and expenses of such arbitration (including, but not
limited to, reasonable attorneys' fees and expenses, which fees and
expenses the parties expect will be awarded to the Person who prevails).
No awards of punitive damages shall be made. The arbitration award,
decree and/or order shall be final and binding on all parties to such
arbitration. Judgment and/or decree shall be entered (in conformity
with such award, decree and/or order) in the Circuit Court of Fayette
County, Kentucky or, if there is federal jurisdiction, the United States
District Court for the Eastern District of Kentucky. The Executive and
each member of the Unified Group irrevocably submit to the exclusive
jurisdiction of the Circuit Court of Fayette County, Kentucky or, if
there is federal jurisdiction, the United States District Court for the
Eastern District of Kentucky, for the purpose of (a) entry of any such
judgment and/or decree, or (b) entry of an order to proceed with
arbitration. Any such judgment, decree and/or order entered by the
Circuit Court of Fayette County, Kentucky, or the United States District
Court for the Eastern District of Kentucky and any related order(s) of
such court, may be endorsed as any other judgment, decree or order of
such court.
Section 8: Miscellaneous.
8.1 Ability To Perform. The Executive warrants that the
executive's execution and performance of this Agreement is not
restricted or prohibited by any agreement to which the Executive is
subject.
8.2 Time Periods. Any period of time measured under this
Agreement by days shall refer to calendar days and not business days.
If the last day of any such period falls on a Saturday, Sunday or
holiday observed by commercial banks in the city of Lexington, Kentucky,
the last day of such period, for all purposes of this Agreement
(including the determination of the first day of each succeeding period
11
of time measured by days), shall be deemed to be the next succeeding
business day after such Saturday, Sunday or holiday. Any period of time
measured under this Agreement shall end at midnight, Lexington, Kentucky
time, on the last day of such period.
8.3 Notice. For all purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given and received when (i)
delivered or (ii) mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses as set
forth below, or to such other address as may have been furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
Notice to Executive:
-------------------
Xxxx X. Xxxxx
Equity Insurance Managers
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Notice to Subsidiary or to Company:
----------------------------------
Equity Underwriting Group, Inc.
c/o Unified Financial Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
With a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
8.4 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
8.5 Withholding. Subsidiary may withhold from any amounts
payable under this Agreement such federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or regulation.
8.6 Waiver. The Executive's or Subsidiary's failure to insist
upon strict compliance with any provision hereof or any other provision
of this Agreement or the failure to assert any right the Executive or
Subsidiary may have hereunder, including, without limitation, the right
of the Executive to terminate employment for Good Reason pursuant to
Section 3.4 shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
8.7 Entire Agreement. All prior negotiations and agreements
between the parties hereto are superseded by this Agreement, and there
are no representations, warranties, understandings or
12
agreements other than those expressly set forth herein, except as
modified in writing concurrently herewith or subsequent hereto.
8.8 Amendment. This Agreement may be amended or modified in
whole or in part only by an agreement in writing executed by all parties
hereto and making specific reference to this Agreement.
8.9 Priority of Agreement. In case of any conflict or ambiguity
in connection with or between this Agreement and any policy manuals,
including, but not limited to, any employee manuals, employment
applications, management instructions or promises, etc., this Agreement
shall control.
8.10 Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the party who
substantially prevails shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to
which he or it may be entitled.
8.11 Assignment. Subsidiary shall have the right to assign this
Agreement to its successors or assigns (collectively, "Permitted
Assignees"). The terms "successors" and "assigns" shall include for all
purposes of this Agreement any Person that acquires all or substantially
all of Subsidiary's assets or all of its stock, or with which Subsidiary
merges or consolidates. The rights, duties and benefits to the
Executive hereunder are personal to him, and no such right or benefit
may be assigned by him.
8.12 Intended Beneficiaries. This Agreement shall be binding
upon the Executive, the Subsidiary and their respective successors and
assigns, and shall inure to the benefit of the Executive, the
Subsidiary, each member of the Unified Group, their respective
successors and assigns and Permitted Assignees. Nothing herein
expressed or implied is intended to confer upon any Person not named or
described in the preceding sentence any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
8.13 Mutual Contribution. The parties to this Agreement and
their counsel have mutually contributed to its drafting. Consequently,
no provision of this Agreement shall be construed against any party on
the ground that such party drafted the provision or caused it to be
drafted or the provision contains a covenant of such party.
8.14 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one
instrument.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Executive and Subsidiary, pursuant to the
authorization from its Board, have executed or caused this Agreement to
be executed in its name, all as of the day and year first above written.
THIS CONTRACT IS GOVERNED BY KENTUCKY LAW AND CONTAINS A BINDING
ARBITRATION PROVISION. ALL DISPUTES ARISING IN CONNECTION WITH THIS
AGREEMENT ARE SUBJECT TO BINDING ARBITRATION IN LEXINGTON, KENTUCKY.
THE EXECUTIVE HAS REVIEWED THESE AND THE OTHER PROVISIONS OF THIS
AGREEMENT WITH LEGAL COUNSEL OF HIS OWN CHOOSING.
"EXECUTIVE"
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
"SUBSIDIARY"
Equity Underwriting Group, Inc.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: President
14
