EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of February 19, 2004 by and between TSI HOLDING CO., INC., a Delaware
corporation (the "Company") and XXXXXXX X. XXXXXXXX (the "Employee").
STATEMENT OF BACKGROUND INFORMATION
At the Effective Time (as defined below), the Company will cause a
subsidiary ("Merger Sub") to merge with and into Trover Solutions, Inc.
("Trover"). From and after the Effective Time, the Company, through Trover and
its subsidiaries, will provide subrogation and related cost containment recovery
services and recovery software for healthcare payors and property and casualty
insurers (the "Business").
Employee previously entered into an employment agreement with Trover
dated as of January 1, 2003. In connection with the acquisition of Trover by the
Company, Employee and the Board of Directors of the Company (the "Board") have
determined that it would be in the best interest of the Company and Employee for
the Company to enter into this Agreement with Employee in order to secure the
continued employment of Employee after such acquisition.
Employee acknowledges the Company's ownership of its goodwill, and the
necessity of the restrictive covenants contained in this Agreement to protect
the Company's interest in such material asset.
CONDITIONAL EFFECTIVENESS OF AGREEMENT
The employment of Employee by the Company and the respective rights and
obligations of Employee and the Company under this Agreement, other than the
provisions of Section 18, are conditioned upon the occurrence of the Closing, as
that term is defined in the Agreement and Plan of Merger dated as of February
19, 2004 by and among the Company, Merger Sub and Trover (the "Merger
Agreement"). If the Closing occurs, then each of the terms and conditions of
this Agreement will become effective and enforceable by the parties as of the
Effective Time, as such term is defined in such Merger Agreement, without the
need for any further action by any party. If such Merger Agreement is terminated
before the Closing occurs, then this Agreement will immediately become null and
void in its entirety and of no further force or effect.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants, promises and conditions set
forth in this Agreement, the parties agree as follows:
1. Employment. The Company employs Employee and Employee accepts
such employment upon the terms and conditions set forth in this Agreement.
2. Duties of Employee. Employee agrees to perform and discharge
the usual duties of a Chief Executive Officer of a similarly sized organization,
including, without limitation, the duties of the President as set forth in the
Bylaws of the Company and Trover, and such other duties as may be reasonably
assigned by the Board, and to comply with all of the Company's policies,
standards and regulations. Employee's title shall be Chief Executive Officer of
both the Company and Trover, and Employee shall report to the Board. In
addition, Employee shall be a member of the Board. All of Employee's time,
attention and energies which are devoted to business endeavors will be devoted
to the Business, and Employee will not, during the term of this Agreement, be
engaged (whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage, without the prior written consent of the Board,
which consent will not be unreasonably withheld. This Section 2 will not be
construed to prevent Employee from: (a) investing personal assets in businesses
which do not compete with the Company or its subsidiaries in such form or manner
that will not require any services on the part of Employee in the operation or
the affairs of the companies in which such investments are made and in which
Employee's participation is solely that of an investor; (b) purchasing
securities in any corporation whose securities are listed on a national
securities exchange or regularly traded in the over-the-counter market; provided
that Employee at no time owns, directly or indirectly, in excess of one percent
of the outstanding stock of any class of any such corporation engaged in a
business competitive with that of the Company or its subsidiaries; or (c)
participating in conferences, preparing and publishing papers or books or
teaching or participating on the board of directors of other companies ("Other
Boards"), so long as these activities are not contrary to the Company's
interests, and, with regard to participation on Other Boards, so long as the
Board approves Employee's participation on any such Other Boards, which approval
will not be unreasonably withheld.
3. Term. The term of Employee's employment under this Agreement
will be for a period commencing at the Effective Time and continuing until
December 31, 2005, with automatic two-year renewals, unless a notice of
termination is given by either party within not less than sixty days prior to
the end of the initial term or a renewal term, as the case may be, and subject
to earlier termination as provided for in Section 4.
4. Termination and Suspension of Employment.
(a) Termination by the Company For Cause. The Company has the
right to terminate Employee's employment and all of its obligations under this
Agreement immediately if the Board takes action to terminate after any of the
following events occurs:
(i) Employee materially breaches any of the terms or
conditions set forth in this Agreement and fails to
cure such breach within ten days after Employee's
receipt from the Board of written notice of such
breach, which notice describes in reasonable detail
the Board's belief that Employee is in breach
(notwithstanding the foregoing, no cure period shall
be applicable to breaches by Employee of Sections 6,
7 or 8 of this Agreement);
(ii) Employee commits any other act in bad faith
materially detrimental to the business or reputation
of the Company; or
(iii) Employee engages in illegal activities or is
convicted for any felony involving fraud, deceit or
moral turpitude.
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(b) Termination by the Company Without Cause or by Employee
For Good Reason. If Employee terminates his employment hereunder pursuant to any
of clauses (i)-(vi) below or if the Company terminates Employee's employment
other than pursuant to Section 4(a) or other than at the end of the current term
pursuant to Section 3, the Company obligations under this Agreement to pay
Employee the annual salary under Section 5(a), to provide for the continued
vesting of stock option awards under Section 5(c) and to provide for health
insurance benefits to Employee under Section 5(d) shall continue in accordance
with the terms of this Agreement for two years or as otherwise provided in
Section 4(e).
(i) The Company materially breaches any of the terms or
conditions set forth in this Agreement and fails to
cure such breach within ten days after its receipt
from Employee of written notice of such breach, which
notice describes in reasonable detail Employee's
belief that the Company is in breach;
(ii) Without Employee's express written consent, the
Company assigns to Employee duties, or significantly
reduces Employee's assigned duties, in a manner
inconsistent with Employee's position with the
Company;
(iii) Without Employee's express written consent, the
Company requires Employee's relocation outside of the
metropolitan Louisville, Kentucky area;
(iv) The Company fails to obtain the assumption of this
Agreement by any successors to the Company;
(v) Employee dies or becomes Disabled (as defined below);
(vi) A Change in Control Event (as defined below) occurs
and Employee's employment is terminated by Employee
within 120 days thereafter.
For purposes of this Agreement, "Disability" shall mean the mental or
physical incapacity or disability of Employee which renders him materially
unable to perform his duties under this Agreement. Without limiting the
generality of the foregoing, Employee's inability to adequately perform services
under this Agreement for a period of ninety consecutive days will be conclusive
evidence of such mental or physical incapacity or disability, unless such
inability to adequately perform services under this Agreement is pursuant to a
mental or physical incapacity or disability covered by the Family Medical Leave
Act, in which case such ninety day period shall be extended to a one hundred
fifty day period.
For purposes of this Agreement, a "Change in Control Event" shall mean
the occurrence of any of the following:
(1) The adoption of a plan of merger or consolidation of
the Company or Trover with any other corporation as a
result of which the holders of the outstanding voting
stock of the Company or Trover, as the case may be,
as a group would
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receive less than 50% of the voting stock of the
surviving or resulting corporation;
(2) The adoption of a plan of liquidation or the approval
of the dissolution of the Company or Trover;
(3) The sale or transfer of substantially all of the
assets of the Company or Trover other than to an
affiliate of the Company which will be owned
immediately after such sale (x) in the case of the
Company, by the stockholders of the Company prior to
such sale in substantially the same proportions
("substantially the same proportions" for purposes of
this clause (3) being a deviation of 5% or less) as
such stockholders owned the Company immediately prior
to such sale and (y) in the case of Trover, directly
or indirectly by the Company or by the stockholders
of the Company prior to such sale in substantially
the same proportions as such stockholders owned the
Company immediately prior to such sale; or
(4) The acquisition by any individual or entity of any
share of capital stock of the Company or Trover as a
result of which such individual or entity owns more
than 50% of (x) the outstanding shares of the common
stock of the Company or Trover or (y) shares of the
capital stock of the Company or Trover entitling the
holders thereof to elect a majority of its board of
directors; provided, however, that excluded from this
Clause (4) is any such acquisition made by an
affiliate of Xxxxxx Xxxxxx Capital Partners LLC if
that affiliate is not an operating company owned by
an investment fund sponsored by Xxxxxx Xxxxxx Capital
Partners LLC or another of its affiliates.
(c) Suspension By the Company. If Employee is indicted for any
felony, the Company may immediately suspend Employee without compensation. If
the indictment is dropped, or if Employee is acquitted (the dropping of an
indictment and an acquittal each referred to as an "Acquittal Event"), the
Company shall, within ten days after it receives written notice of any Acquittal
Event, remit to Employee all amounts otherwise payable pursuant to this
Agreement but withheld during the suspension period, together with interest form
each due date paid at the then-current prime rate, as reported in The Wall
Street Journal. Upon any such Acquittal Event, the Company's payment obligations
to Employee under this Agreement shall resume and shall continue throughout the
remainder of the term of this Agreement, subject to the terms and conditions of
this Agreement, but the Company shall have the option whether to ask employee
actually to return to work and to publicly associate with the Company. At the
Company's request in this circumstance, Employee will refrain from working at or
for the Company (notwithstanding his continuing compensation under this
Agreement) and will refrain from representing to any person or entity that he is
associated with the Company.
(d) No Duty to Mitigate. If Employee terminates his employment
under and in accordance with this Agreement or if the Company terminates
Employee's employment under this Agreement for any reason other than those
specified in Section 4(a), Employee shall not be required to mitigate the amount
of any payment contemplated by this Agreement (whether seeking new employment or
in any other manner), and the Company's obligations under Section
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4(b) shall not be reduced because of any employment of Employee after
termination of employment under this Agreement, except as provided in the
following sentence. Notwithstanding the provision of this Section 4, any
payments received by Employee under a policy or disability insurance or similar
financial arrangement shall offset and reduce the Company's obligations under
Section 4(b).
(e) Change in Control Event. If a Change in Control Event
occurs and Employee terminates his employment hereunder within one hundred
twenty days thereafter, then in lieu of the continued payment of Employee's
annual salary pursuant to Section 5(a) and provision for health insurance
benefits to Employee pursuant to Section 5(d), as contemplated by Section 4(b),
the Company will pay to Employee the salary that would have been payable to
Employee under this Agreement from the date of termination for a period of two
years. Such amount due to Employee shall be paid by the Company in periodic
payments or in a lump sum, at the option of Employee. If any such payment or
other benefit (a "Termination Payment") received or to be received by Employee
in connection with a Change in Control Event (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Company,
with any person or entity whose actions result in a Change in Control Event or
with any person or entity affiliated with the Company or such person or entity)
is or will be subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall
pay to Employee, a Gross-Up Payment (as defined below) as provided by the
following paragraphs of this Section 4(e).
A Gross-Up Payment (as defined) shall be payable pursuant to this
Section 4(e) on and subject to the following terms and conditions:
(i) At the time the Termination Payment is made, an
additional amount (the "Gross-Up Payment") shall be paid by the Company such
that the gross amount retained by Employee, after deduction of (a) any Excise
Tax on such Termination Payment, or (b) with respect to the Gross-Up Payment
itself, any federal, state and local income tax, employment tax or Excise Tax on
the Gross-Up Payment, shall be equal to the amount or value of such Termination
Payment. Employee shall have sole responsibility for any federal, state or local
income taxes due with respect to the Termination Payment, exclusive of any
Gross-Up Payment. For purposes of determining whether any such Termination
Payment will be subject to the Excise Tax, all Termination Payments shall be
treated as "parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as being subject to the Excise Tax,
unless in the opinion of tax counsel reasonably acceptable to Employee and
selected by the accounting firm, which, immediately prior to the Change in
Control Event, was the Company's independent auditors, such payments (in whole
or in part) do not constitute "parachute payments" within the meaning of Section
280G of the Code or represent reasonable compensation for services actually
rendered in excess of the "base amount" allocable to such reasonable
compensation. The full amount of the Gross-Up Payment shall be treated as being
subject to the Excise Tax. The value of any non-cash benefits or any deferred
payment or benefit shall be determined in accordance with the principles of
Section 280G(d)(3) and (4) of the Code.
(ii) For purposes of determining the amount of any
Gross-Up Payment, Employee shall be deemed to pay federal
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income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the applicable Termination Payment or Gross-Up Payment is
made, and shall be deemed to pay state and local income taxes at the highest
marginal rates of taxation in the sate and locality of his residence on the date
the applicable Termination Payment or Gross-Up Payment is made, net of the
maximum reduction in federal income taxes that could be obtained from deduction
of such state and local taxes.
(iii) If the Excise Tax or any income tax due on the
Gross-Up Payment itself, as it is finally determined, exceeds the amount taken
into account or paid to Employee at the time the applicable Termination Payment
or Gross-Up Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the applicable Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in respect of
such excess (plus any interest payable by Employee with respect to such excess)
at the time that the amount of such excess is finally determined.
5. Compensation and Benefits.
(a) Annual Salary. For all services rendered by Employee under
this Agreement, the Company will pay Employee a base salary of a minimum of
$331,500 per annum in equal bi-weekly installments. Such annual salary may be
increased by the Board. Such annual salary will be subject to annual percentage
increases for inflation equivalent to those increases given in the normal course
of business to employees of the Company, pursuant to such policy as may be
adopted by the Board to apply substantially on a Company-wide basis.
(b) Incentive Compensation. During the term of the Agreement,
Employee shall be entitled to incentive compensation payments as determined from
time to time by the Board. If Employee is terminated by the Company without
cause or Employee terminates his employment pursuant to Section 4(b)(i), (ii) or
(iii), Employee shall be entitled to a pro rata share of his incentive
compensation payments. A "pro rata share" of incentive compensation payments
shall mean the amount of the incentive compensation payments that would have
been paid to Employee had Employee not been so terminated, assuming Employee
worked for the balance of the term and performed consistently with Employee's
past performance, multiplied by the fraction whose numerator is the number of
days Employee was employed by the Company in the period to which such incentive
compensation payment relates and the denominator is the number of days in the
period to which such incentive compensation payment relates. If such pro rata
share of incentive compensation cannot be calculated until after the end of the
period to which such incentive compensation relates, it will be calculated and
paid promptly after it is so calculated.
(c) Stock Option Awards. Employee shall be entitled to such
awards of stock options as determined and approved by the Board or any
authorized compensation committee thereof serving from time to time.
(d) Other Benefits. Employee will be entitled to such fringe
benefits as may be provided from time to time by the Company to its executive
employees, including, but not limited to, group health insurance, life and
disability insurance and any other fringe benefits now or hereafter provided by
the Company to its executive employees, if and when Employee meets the
eligibility requirements for any such benefit. The Company reserves the right to
change or
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discontinue any employee benefit plans or programs now being offered to its
employees; provided, however, that all benefits provided for executive employees
will be provided to Employee on an equivalent basis.
(e) Business Expenses. Employee will be reimbursed for all
reasonable expenses incurred in the discharge of Employee's duties under this
Agreement pursuant to the Company's standard reimbursement policies.
(f) Signing Bonus. Employee was paid a $200,000 signing bonus
in January 2003 with respect to his former employment agreement with Trover.
Should Employee terminate this Agreement prior to January 1, 2005 he will, at
the Company's request, remit to the Company $133,334 of this signing bonus, and
should Employee terminate this Agreement prior to January 1, 2006 he will, at
the Company's request, remit to the Company $66,667 of this signing bonus.
(g) Withholding. The Company will deduct and withhold from the
payments made to Employee under this Agreement, state and federal income taxes,
FICA and other amounts normally withheld from compensation due employees.
6. Non-Disclosure of Confidential Information. Employee
recognizes and acknowledges that the trade secrets and confidential information
of the Company and its affiliates (collectively, the "Proprietary Information"),
as they may exist from time-to-time, are valuable, special and unique assets of
the Company's and its affiliates' businesses. Employee further acknowledges that
access to such Proprietary Information is essential to the performance of
Employee's duties under this Agreement. Therefore, in order to obtain access to
such Proprietary Information, Employee agrees that Employee will not, in whole
or in part, disclose such Proprietary Information to any person, firm,
corporation, association or any other entity for any reason or purpose
whatsoever, nor will Employee make use of any such information for Employee's
own purposes or for the benefit of any person, firm, corporation, association or
other entity (except the Company or its affiliates) under any circumstances. For
purposes of this Agreement, the term "trade secrets" means the whole or any
portion of any scientific or technical or non-technical information, design,
process, procedure, formula, computer software product, documentation or
improvement relating to the Company's or its affiliates' businesses which: (1)
derives economic value, actual or potential, from not being generally known to
other persons who can obtain economic value from its disclosure or use; and (2)
is not generally made available to the public by the Company. The term
"confidential information" means any and all data and information relating to
the Company's or its affiliates' businesses that is treated as confidential by
the Company or its affiliates. The provisions of this Section 6 will apply
during the period the Company is obligated to pay Employee's salary under
Section 5(a) (or would be so obligated if Employee did not exercise any right to
a lump sum payment thereof) and for a three-year period thereafter with respect
to confidential information, and during Employee's employment by the Company and
at any and all times thereafter with respect to trade secrets. For purposes of
this Agreement, "confidential information" will not include information which
is: (1) disclosed by the Company generally to third parties on an unrestricted
basis; (2) is or becomes general public knowledge through no fault of Employee;
or (3) is or becomes available to Employee from any source not known to Employee
to have a duty of nondisclosure to the Company.
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7. Restrictive Covenants.
(a) Non-Competition Covenant. During the Restricted Period (as
defined in Section 7(f)) Employee will not, directly or indirectly, on
Employee's own behalf or in the service of or on behalf of any other individual
or entity, compete (as defined below) with the Company or its subsidiaries
within the Geographical Area (as defined below). For purposes of this Agreement,
the term "compete" means to engage, directly or indirectly, on Employee's own
behalf or in the service of or on behalf of any other individual or entity,
whether as a proprietor, employee, agent, independent contractor, consultant,
director, officer, partner, stockholder (other than a stockholder of a
corporation listed on a national securities exchange or whose stock is regularly
traded in nationally-recognized stock exchange, provided that Employee at no
time owns, directly or indirectly, in excess of one percent of the outstanding
stock of any class of any such corporation) or otherwise in providing (i)
Business products or services or (ii) products or services offered by the
Company or its subsidiaries at the time Employee's employment hereunder
terminates or under active development by the Company or its subsidiaries at the
time of such termination. For purposes of this Agreement, the term "Geographical
Area" means the entire United States, and all foreign countries in which
Employee or any member of his staff, while employed by Trover or the Company, is
or has engaged in providing or marketing (i) Business products or services or
(ii) products or services of the Company or its subsidiaries at the time
Employee's employment hereunder terminates or under active development at the
time of such termination.
(b) Non-Interference. During the Restricted Period Employee will
not, directly or indirectly, on Employee's own behalf or in the service of or on
behalf of any other individual or entity, interfere with, disrupt, or attempt to
interfere with or disrupt the past, present or prospective relationships,
contractual or otherwise, between the Company or its subsidiaries and any
supplier, consultant, or client of the Company or its subsidiaries with whom
Employee had material contact during Employee's employment by Trover or the
Company. The term "prospective relationship" is defined as any relationship
where the Company or its subsidiaries has actively sought an individual or
entity as a prospective supplier, consultant, or client.
(c) Non-Solicitation of Client Covenant. During the Restricted
Period Employee will not, directly or indirectly, on Employee's own behalf or in
the service of or on behalf of any other individual or entity, divert, solicit
or attempt to divert or solicit any individual or entity (x) who is a client of
the Company or its subsidiaries at any time during the six-month period prior to
the date on which Employee's employment with the Company is terminated
("Client'), or was actively sought by the Company or its subsidiaries as a
prospective client during such period, and (y) with whom Employee had material
contact while employed by Trover or the Company, to provide to such Clients or
prospects (i) Business products or services or (ii) products or services of the
Company or its subsidiaries at the time Employee's employment hereunder
terminates or under active development by the Company or its subsidiaries at the
time of such termination.
(d) Construction. The parties agree that any judicial authority
construing all or any portion of this Section 7 or Section 8 will be empowered
to sever any portion of the Geographical Area, client base, prospective
relationship or prospect list or any prohibited business activity from the
coverage of such Section and to apply the provisions of such Section
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to the remaining portion of the Geographical Area, the client base or the
prospective relationship or prospect list, or the remaining business activities
not so severed by such judicial authority. In addition, it is the intent of the
parties that the judicial authority replace each such severed provision with a
provision as similar in terms to such severed provision as may be possible and
legal, valid and enforceable. It is the intent of the parties that Sections 7
and 8 be enforced to the maximum extent permitted by law. For purposes of the
covenant set forth in Section 7(c), Employee at his own suggestion and not at
the request or direction of the Company, asserts that he has constructive
material contact with each and every Client, and further asserts that such
covenant would be unfair to the Company without application of such constructive
material contact. If any provision of either Section is determined not to be
specifically enforceable, the Company shall nevertheless be entitled to bring an
action to seek to recover monetary damages as a result of the breach of such
provision by Employee.
(e) Non-Disparagement. During the Restricted Period and for a
period of three years thereafter, Employee will not make any statement, written
or oral, or take any action relating to the Company or its affiliates, officers,
directors or stockholders that an independent party would reasonably consider to
have been made or taken for the purpose of disparaging or demeaning the business
or reputation thereof.
(f) Definitions and Special Treatment of Products and Services in
Development.
(i) For purposes of this Section 7 and Section 8,
"employment" shall mean the period beginning at the time Employee first became
an employee of Trover and ending when the Company is no longer obligated to pay
Employee's salary under Section 5(a) (or would be so obligated if Employee did
not exercise any right to a lump sum payment thereof), regardless of whether
Employee is performing services for the Company at the time of such payment.
(ii) For purposes of this Section 7 and Section 8,
"Restricted Period" shall mean the period during with the Company is obligated
to pay Employee's salary pursuant to Section 5(a) (or would be so obligated if
Employee did not exercise any right to a lump sum payment thereof) and for a
period of (A) two years thereafter following a termination of Employee's
employment pursuant to Section 4(a) or termination of Employee's employment
other than pursuant to Section 4(b) or (B) six months following a termination of
Employee's employment under this Agreement for any other reason.
(iii) Notwithstanding the other provisions of Section
7, if a product or service is under active development by the Company or a
subsidiary at the time Employee's employment is terminated hereunder, but the
Company subsequently ceases its development, marketing and sales efforts (to the
extent commenced) with respect to such product or service, the restrictions
under this Section 7 will lapse as to such product or service as if such product
or service had not been a product or service under development at the time
Employee's employment is terminated hereunder, but such lapse shall not release
Employee of his responsibility with respect to such product or service prior to
the date of such cessation.
8. Non-Solicitation of Employees Covenant. During the Restricted
Period Employee will not, directly or indirectly, on Employee's own behalf or in
the service of, or on
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behalf of any other individual or entity, divert, solicit or hire away, or
attempt to divert, solicit or hire away, to or for any individual or entity
which is engaged in providing Business products or services, any person employed
by the Company or its subsidiaries, whether or not such employee is a full-time
employee or temporary employee of the Company or its subsidiaries, whether or
not such employee is employed pursuant to written agreement and whether or not
such employee is employed for a determined period or at-will.
9. Existing Restrictive Covenants. Employee represents and
warrants that Employee's employment with the Company does not and will not
breach any agreement which Employee has with any former employer to keep in
confidence confidential information, not to solicit clients or employees, or not
to compete with any such former employer. Employee will not disclose to the
Company or use on its behalf any confidential information of any other party
(other than Trover) required to be kept confidential by Employee.
10. Return of Proprietary Information. Employee acknowledges that
as a result of Employee's employment with the Company, Employee has and may in
the future come into the possession and control of Proprietary Information, such
as proprietary documents, drawings, specifications, manuals, notes, computer
programs, customer lists, customer contracts or other proprietary material.
Employee acknowledges, warrants and agrees that Employee will return to the
Company all such items and any copies or excerpts thereof, and any other
properties, files or documents obtained as a result of Employee's employment
with the Company, immediately upon termination of Employee's employment with the
Company.
11. Proprietary Rights. During the course of Employee's employment
with the Company, Employee may make, develop or conceive of useful processes,
machines, compositions or matter, computer software, algorithms, works of
authorship expressing such algorithm, or any other discovery, idea, concept,
document or improvement which relates to or is useful to the Company's Business
(the "Inventions"), whether or not subject to copyright or patent protection,
and which may or may not be considered Proprietary Information. Employee
acknowledges that all such Inventions will be "works made for hire" under United
States copyright law and will remain the sole and exclusive property of the
Company. Employee assigns and agrees to assign to the Company, in perpetuity,
all right, title and interest Employee may have in and to such Inventions,
including without limitation, all copyrights, and the right to apply for any
form of patent, utility model, industrial design or similar proprietary right
recognized by any state, country or jurisdiction. Employee further agrees, at
the Company's request and expense, to do all things and sign all documents or
instruments necessary, in the opinion of the Company, to eliminate any ambiguity
as to the ownership of, and rights of the Company to, such Inventions, including
filing copyright and patent registrations and defending and enforcing in
litigation or otherwise all such rights.
Employee will not be obliged to assign to the Company any Invention
made by Employee while in the Company's employ which does not relate to any
business or activity in which the Company is or may become engaged, except that
Employee is so obligated if the same relates to or is based on Proprietary
Information to which Employee will have had access during and by virtue of
Employee's employment or which arises out of work assigned to Employee by the
Company. Employee will not be obligated to assign any Invention which may be
wholly conceived by Employee after Employee leaves the employ of the Company,
except that
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Employee is so obligated if such Invention involves the utilization of
Proprietary Information obtained while in the employ of the Company. Employee is
not obligated to assign any Invention which related to or would be useful in any
business or activities in which the Company is engaged if such Invention was
conceived and reduced to practice by Employee prior to Employee's employment
with the Company or Trover, provided that all such Inventions are listed at the
time of employment on the attached Exhibit A. If Employee made, developed or
conceived any Invention while he was employed by Trover, such Invention will be
treated as if it had been made, developed or conceived during the term of this
Agreement.
12. Remedies. Employee agrees and acknowledges that the violation
of any of the covenants or agreements contained in Section 6, 7, 8, 9, 10 and 11
of this Agreement would cause irreparable injury to the Company, that the remedy
at law for any such violation or threatened violation would be inadequate, and
that the Company will be entitled, in addition to any other remedy, to temporary
and permanent injunctive or other equitable relief without the necessity of
proving actual damages or posting any bond or other indemnity.
13. Insurance. The Company covenants and agrees that, for so long
as Employee shall continue to serve as an officer or director of the Company, it
shall use its reasonable efforts to maintain in full force and effect directors'
and officers' insurance in reasonable amounts from established and reputable
insurers, to cover claims asserted against Employee or liabilities incurred by
Employee for actions taken or omitted in the scope of his capacity as a director
or officer of the Company, and if necessary to purchase applicable "tail
coverage" if it can be obtained for a reasonable price as determined in good
faith by the disinterested members of the Board.
14. Indemnification. The Company agrees to indemnify Employee and
hold Employee harmless to the fullest extent permitted by the Delaware General
Corporation Law as it presently exists or to such greater extent as such law may
hereafter be amended for indemnification of corporate officers and directors by
a Delaware corporation. However, the Company shall be required to so indemnify
Employee in connection with a proceeding initiated by Employee only if the
proceeding was authorized by the Board. Without limitation of the foregoing, the
Company agrees to advance, within ten business days of Employee's request and
upon receipt of an undertaking to repay such advances if repayment is required
by the Delaware General Corporation Law, all reasonable expenses, including,
without limitation, attorneys' fees and expenses and court costs, incurred by
Employee in defending any threatened or actual claim, action or proceeding to
which he is entitled to indemnity hereunder, including, but not limited to, the
investigation, defense, settlement or appeal of any such claim or action, to
which the Employee is a party or threatened to be made a party by reason of the
fact that the Employee is or was an officer or director of the Company. The
indemnification and undertaking to advance expenses of the Company under this
Agreement shall be in addition to and shall not be deemed to limit any other
rights to which Employee may be entitled to indemnification or advancement of
expenses under any bylaw, agreement, articles of incorporation, vote of
stockholders or disinterested directors, at law, or otherwise.
15. Attorneys' Fees. Employee shall be reimbursed promptly upon
request for all reasonable and customary fees and costs incurred in disputing,
in good faith, any breach or default hereunder or any issue hereunder relating
to the termination of Employee's employment
11
except for any termination based on Employee's conviction for a felony involving
fraud, deceit or moral turpitude pursuant to Section 4(a), in any action seeking
to obtain or enforce, in good faith, any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to any payment or
benefit provided under this Agreement or any other plan or agreement referred to
in Section 4(e)(i), including, without limitation, reasonable attorneys' fees
and expenses and court costs. Notwithstanding the foregoing, Employee will not
be reimbursed for any fees or costs so incurred unless an independent party
reasonably acceptable to the Company and Employee determines that Employee has a
reasonable basis upon which he could prevail in the matter to which such fees
and costs relate. Employee will also be reimbursed for all reasonable fees and
costs incurred by Employee in connection with the review of this Employment
Agreement.
16. Notices. Any notice or communication under this Agreement will
be in writing and sent by registered or certified mail addressed to the
appropriate party at the following address (or to such other address for such
party as shall be specified by such party by notice given hereunder):
If to the Company: If to Employee:
c/x Xxxxxx Xxxxxx Capital Partners LLC 0000 Xxxxx Xxx
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxxx X. XxXxxxxx
Attention: Xxxxxxx X. Xxxx
00. Severability. Subject to the application of Section 7(d) to
the interpretation of Sections 7 and 8, if one or more of the provisions
contained in this Agreement is for any reason held to be invalid, illegal or
unenforceable in any respect, the same will not affect any other provision in
this Agreement, and this Agreement will be construed as if such invalid or
illegal or unenforceable provision had never been contained in this Agreement.
It is the intent of the parties that this Agreement be enforced to the maximum
extent permitted by law.
18. Entire Agreement. This Agreement and the option and other
benefit plans applicable to Employee in accordance with the terms of this
Agreement, constitute the entire agreement of the parties relating to the
subject matter of this Agreement and supersede all other prior agreements,
discussions and negotiations, oral or written, regarding the subject matter of
this Agreement. No amendment or modification of this Agreement will be valid or
binding upon the parties unless made in writing and signed by the parties.
19. Binding Effect. This Agreement will be binding upon the
parties and their respective heirs, representatives, successors, transferees and
permitted assigns. Any successor to the Company (whether direct or indirect and
whether by purchase, lease, merger, consolidation, liquidation or otherwise) or
to all or substantially all of the Company's business and/or assets shall be
bound by, and shall assume, the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of a succession. For purposes of this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which executes and delivers the assumption
12
agreement described in this subsection or which becomes bound by the terms of
this Agreement by operation of law.
20. Assignment. This Agreement is one for personal services and
will not be assigned by Employee. The Company may assign this Agreement only
upon the prior written consent of Employee.
21. Governing Law. This Agreement is entered into in and will be
interpreted and enforced pursuant to the laws of the Commonwealth of Kentucky.
The parties agree that the appropriate forum and venue for any disputes between
any of the parties arising out of this Agreement shall be any federal court in
the Commonwealth of Kentucky and each of the parties submits to the personal
jurisdiction of any such court. The foregoing shall not limit the rights of any
party to obtain execution of a judgment in any other jurisdiction. The parties
further agree, to the extent permitted by law, that a final and unappealable
judgment against either of them in any action or proceeding contemplated above
shall be conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified exemplified copy
of which shall be conclusive evidence of the fact and amount of such judgment.
22. Termination of Prior Agreement. Effective as of the Effective
Time, the employment agreement dated as of January 1, 2003 between Employee and
Trover is hereby cancelled. Entering into this Agreement will not be deemed as a
breach of Employee's obligations under such agreement, and Employee agrees that
the acquisition of Trover by the Company pursuant to the Merger Agreement and
consummation of the transactions contemplated thereby will not constitute a
Change of Control Event or termination of Employee's employment pursuant to such
employment agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TSI HOLDING CO, INC. EMPLOYEE
By: /s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxxx X. XxXxxxxx
---------------------------------- -------------------------------------
Name: Xxxxxxxx X. Xxxxx Xxxxxxx X. XxXxxxxx
--------------------------------
Title: Vice President
-------------------------------
Agreed as to Section 22 only:
TROVER SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Chief Financial Officer
-------------------------------
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EXHIBIT A
Inventions
None.
14
