EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of January 1, 2003 by and between TROVER SOLUTIONS, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXXXXX (the "Employee").
STATEMENT OF BACKGROUND INFORMATION
The Company provides subrogation and related cost containment recovery
services and recovery software for healthcare payors and property and casualty
insurers (the "Business").
The Company and Employee previously entered into an Employment
Agreement dated as of May 28, 1997 which provided for an initial 3-year term and
2-year renewal terms thereafter. The Board of Directors (the "Board") has
determined that it would be in the best interest of the Company and its
stockholders to further secure the continued employment of Employee by extending
the contract term of employment, providing for compensation at a level
consistent with the market and Employee's value to the Business, and addressing
other related terms.
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.
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. For
purposes of Sections 6, 7 and 8 of this Agreement, "employment" shall mean any
period of time during which the Company is paying the Employee salary under
Section 5(a) of this Agreement, whether or not the Employee is currently
performing services for the Company at the time of such payment. For all other
purposes under this Agreement, "employment" shall have its customary meaning.
2. Duties of Employee. Employee agrees to perform and discharge
the usual duties of a Chairman of the Board and Chief Executive Officer of a
similarly sized organization, including, without limitation, those presently set
forth in the Bylaws of the Company, 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 Chairman of the Board of
Directors and Chief Executive Officer, and Employee shall report to 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
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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 will not be construed to prevent Employee from: (a)
investing personal assets in businesses which do not compete with the Company 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 (c) participating in
conferences, preparing and publishing papers or books or teaching, participating
on the board of directors of other companies ("Other Boards") or providing
limited advisory services, so long as these activities are not contrary to the
Company's interests, and, with regard to participation on Other Boards or the
provision of limited advisory services, so long as the Board approves Employee's
participation on any such Other Boards or approves the provision of such limited
advisory services, which approval will not be unreasonably withheld.
3. Term. The term of this Agreement will be for a period of three
years commencing on the dated date hereof, 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 a term or a renewal term, subject to earlier
termination as provided for in Section 4.
4. Termination and Suspension.
(a) By the Company. Notwithstanding anything contained in Section
3 to the contrary, the Company has the right to terminate this Agreement 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
of any felony involving fraud, deceit or moral turpitude.
(b) By Employee or by the Company other than For Cause. If
Employee terminates this Agreement pursuant to any of clauses (i)-(vi) below or
if the Company terminates this Agreement other than pursuant to Section 4(a),
the Company obligations under this Agreement to pay Employee the annual salary
under Section 5(a), to provide for the continued vesting of stock
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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 the greater of (i) the remainder of the term or the renewal term,
or (ii) two years.
(i) the Company materially breaches any of the terms or
conditions set forth in this Agreement and fails to cure its
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 mentally or physically
incapacitated or disabled so as to be materially unable to
perform Employee's 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; or
(vi) a Change in Control Event (as defined below) occurs,
and Employee's employment is terminated by Employee, within
one hundred twenty days thereafter. Upon a Change in Control
Event, the applicable provisions of Section 4(e) shall apply.
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 with any other
corporation as a result of which the holders of the
outstanding voting stock of the Company as a group
would 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;
(3) the sale or transfer of substantially all of
the assets of the Company;
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(4) the following individuals cease for any
reason to constitute a majority of the number of
directors then serving: individuals who, on the date
of this Agreement, constitute the Board and any new
director (other than a director whose initial
assumption of office is in connection with an actual
or threatened election contest, including but not
limited to a consent solicitation, relating to the
election of directors of the Company) whose
appointment or election by the Board or nomination
for election by the Company's stockholders was
approved or recommended by a vote of at least
two-thirds of the directors then still in office who
either were directors on the date of this Agreement
or whose appointment, election or nomination for
election was previously so approved or recommended;
or
(5) any individual, entity, group (within the
meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, and the rules
promulgated under such act), or other person acquires
in a single transaction or a series of transactions
more than 30% of the outstanding shares of the
Company's common stock.
(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 from
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 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 Paragraph (d), 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).
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(e) Gross-Up. Upon termination of this Agreement by Employee under
Section 4(b)(vi), the Company will pay to Employee, in lieu of an obligation to
make further payments to Employee under or on account of Section 5(a) and to
provide benefits to Employee under or on account of Section 5(d), the salary
that would have been payable to Employee under this Agreement from the date of
termination for the greater of: (i) the remainder of the term of this Agreement
or any renewal term then in effect, or (ii) 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 or not this Agreement is terminated) or Employee's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, with any person who
actions result in a Change in Control Event or with any person affiliated with
the Company or such person ) 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)
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:
(1) 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
Sections 280G(d) (3) and (4) of the Code.
(2) For purposes of determining the amount of any
Gross-Up Payment, Employee shall be deemed to pay federal 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 state 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.
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(3) 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
$325,000 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 the Company's present
policy or, as the case may be, a future policy approved 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 in accordance with
the Management Group Incentive Compensation Plan of Trover Solutions, Inc. If
Employee is terminated by the Company without cause, Employee shall be entitled
to a pro rata share of incentive compensation payments. A "pro rata share" of
incentive compensation payments shall mean that portion of the incentive
compensation payments that would have been paid to Employee had Employee not
been terminated without cause, assuming Employee worked for the balance of the
term and performed consistently with Employee's past performance.
(c) Stock Option Awards. Employee shall be entitled to such awards
of stock options as determined and approved by the Compensation Committee of the
Board.
(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 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 equal 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.
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(f) Signing Bonus. In consideration of Employee's initial 3-year
term of service under this Agreement, and upon Employee's execution and delivery
of this Agreement, the Company will pay Employee a signing bonus of $200,000.
Should Employee terminate this Agreement prior to the third anniversary of the
"as of" date of this Agreement, Employee will, at the Company's request,
reimburse the Company for a ratable portion of this signing bonus as follows: If
such termination occurs prior to: [1] the first anniversary, Employee will
reimburse $200,000 to the Company; [2] the second anniversary but on or after
the first anniversary, Employee will reimburse $133,334 to the Company; and [3]
the third anniversary but on or after the second anniversary, Employee will
reimburse $66,667 to the Company.
(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 (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 the subject of efforts that are reasonable under the circumstances to
maintain its secrecy or confidentiality. The term "confidential information"
means any and all data and information relating to the Company's or its
affiliates' businesses: (1) which has value to the Company or its affiliates;
(2) is not generally known by its competitors or the public; and (3) is treated
as confidential by the Company or its affiliates. The provisions of this Section
6 will apply during Employee's employment by the Company and for a three-year
period thereafter (without regard to the basis or reason for the termination of
employment) 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, "Proprietary Information" will
not include information which is: (1) disclosed by the Company to others 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. This Section
6, together with Sections 7, 8, 9, 10, 11 and 12, and the applicable provisions
of Sections 4 and 5, of this Agreement, shall survive termination of this
Agreement.
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7.A Non-Competition Covenant. During Employee's employment by the
Company and for a period of (i) two years following a termination of Employee's
employment for cause, or (ii) six months following a termination of Employee's
employment other than for cause, Employee will not, directly or indirectly, on
Employee's own behalf or in the service of or on behalf any other individual or
entity, compete with the Company within the Geographical Area (as defined in
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, either as a proprietor, employee, agent, independent contractor,
consultant, director, officer, partner or stockholder (other than a stockholder
of a corporation listed on a national securities exchange or whose stock is
regularly traded in a 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) in providing
Business products or services. 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 is or has engaged in providing or
marketing Business products or services while employed by the Company.
B. Non-Interference. During Employee's employment by the Company
and for a period of (i) two years following a termination of Employee's
employment for cause, or (ii) six months following a termination of Employee's
employment other than for cause, 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 disrupt the past, present or
prospective relationships, contractual or otherwise, between the Company and any
supplier, consultant, or client of the Company with whom Employee had material
contact during Employee's employment by the Company. The term "prospective
relationship" is defined as any relationship where the Company has actively
sought an individual or entity as a prospective supplier, consultant, or client.
C. Non-Solicitation of Clients Covenant. Employee agrees that
during Employee's employment by the Company and for (i) two years following a
termination of Employee's employment for cause, or (ii) six months following a
termination of Employee's employment other than for cause, 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 solicit
any individual or entity (x) who is a client of the Company at any time during
the six-month period prior to Employee's termination with the Company
("Client"), or was actively sought by the Company as a prospective client during
such period, and (y) with whom Employee had material contact while employed by
the Company, to provide Business services to such Clients or prospects.
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 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 be legal,
valid and enforceable.
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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 such 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.
8. Non-Solicitation of Employees Covenant. Employee further
agrees and represents that during Employee's employment by the Company and for a
period of (i) two years following a termination of Employee's employment for
cause, or (ii) 6 months following a termination of Employee's employment other
than for cause,, 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 hire away, or attempt to divert, solicit or hire away, to or
for any individual or entity which is engaged in providing Business services,
any person employed by the Company, whether or not such employee is a full-time
employee or temporary employee of the Company, 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
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 may 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
obtains as a result of Employee's employment with the Company, immediately upon
the 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 of 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
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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 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 relates 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, provided that all such Inventions are listed at the time of
employment on the attached Exhibit A.
12. Remedies. Employee agrees and acknowledges that the violation
of any of the covenants or agreements contained in Sections 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.
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
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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 fees and costs incurred in disputing any breach or default
hereunder or any issue hereunder relating to the termination of Employee's
employment except for any termination based on Employee's conviction of a felony
involving fraud, deceit or moral turpitude pursuant to Section 4(a)(iii) of this
Agreement, in seeking to obtain or enforce 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)(1), including, without limitation, attorneys' fees and expenses
and court costs. Employee will also be reimbursed for all reasonable fees and
costs incurred in connection with the review of Employee's employment
arrangements.
16. Notices. Any notice or communication under this Agreement will
be in writing and sent by registered or certified mail addressed to the
respective parties as follows:
If to the Company: If to Employee:
1600 Xxxxxxxxx Tower 0000 Xxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: Xxxxxxx X. XxXxxxxx
17. 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.
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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) 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 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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
TROVER SOLUTIONS, INC.: EMPLOYEE:
By /S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxxxx X. XxXXXXXX
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx XXXXXXX X. XxXXXXXX
Chairman, Compensation Committee
of the Board of Directors
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EXHIBIT A
INVENTIONS
Employee represents that there are no Inventions.
/s/ PBM
-----------------
Employee Initials
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