EMPLOYMENT AGREEMENT
This agreement ("Agreement") has been entered into as of this 31st
day of December, 1999, by and between Unified Financial Services, Inc.,
a Delaware corporation ("Unified"), and Xxxxxxx X. Xxxxxx, an individual
("Executive").
RECITALS
The Executive, various members of the Board of Directors of
Unified (the "Board"), and various senior executives of Unified
negotiated the terms of Executive's employment and this Agreement over a
period of five months. Executive has and is representing Unified on
significant portions of its legal matters other than the negotiation,
drafting and execution of this Agreement. Unified acknowledges that it
is aware of Executive's representation of himself in connection with
this Agreement, and it is aware that Executive has not represented
Unified in connection with this Agreement. Unified acknowledges that
the Executive encouraged Unified to consult with legal counsel in
connection with this Agreement, and Unified represents that it has done
so.
The Executive has represented Unified for a number of years, and
both the Board and Unified's senior executives are very familiar with
the Executive's talents. Unified offered the terms in this Agreement in
order to entice Executive to accept employment with Unified, which
acceptance will require that Executive resign his current position as an
equity partner of his law firm. Unified and Executive acknowledge that
Executive's acceptance of the terms of this Agreement and resignation
from his law firm will result in a disposition of Executive's current
law practice without compensation from those who succeed to such
practice, and Executive acknowledges that Unified is not purchasing such
practice. Unified acknowledges that Executive has been a partner in a
large and respected law firm, has advanced rapidly while there, and has
achieved a substantial amount of economic and employment security.
Unified acknowledges that Executive would not have accepted employment
with Unified and surrendered his current law practice but for the
protections and enticements provided in this Agreement, including
certain mandatory salary increases and certain payments upon termination
or a Change in Control (as defined below). Executive acknowledges that
the protections and enticements provided in this Agreement, including
certain mandatory salary increases, certain payments upon termination or
a Change of Control and certain stock benefits, are adequate, acceptable
and sufficient for Executive to resign from his current position and
accept the position and terms and conditions provided herein.
The Executive Committee of the Board of Directors of Unified (the
"Committee") desires to provide for the employment of the Executive on
the terms hereof, and the Executive is willing to commit himself to
serve Unified. The Executive Committee has determined that it is in
the best interests of Unified and its stockholders to reinforce and
encourage the attention and dedication of the Executive to Unified as a
member of Unified's management and to assure that Unified will have the
continuing dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change in Control of Unified. Additionally,
the Executive Committee believes it is imperative to encourage the
Executive's attention and dedication to Unified currently and in the
event of any threatened or pending Change in Control, and to provide the
Executive with compensation and benefits arrangements upon certain
breaches of this Agreement by Unified or upon a termination of
employment after a Change in Control, which ensure that the compensation
and benefits expectations of the Executive will be satisfied. Because
of the Executive's high position at Unified and his access to
information pertaining to the business of Unified (as conducted by its
affiliates), Unified believes it is imperative that the Executive
neither compete against Unified and any of its affiliates or
subsidiaries nor share certain confidential information of either during
the Executive's employment and for the three-year period thereafter, as
provided below. Therefore, in
exchange for the mutual promises and covenants set forth herein, and in
order to accomplish these objectives, the Committee has caused Unified
to enter into this Agreement.
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 Unified.
1.1(b) "CHANGE IN CONTROL" means a change in control of
Unified of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act; provided that, for purposes of
this Agreement, a Change in Control shall be deemed to have
occurred if: (i) any Person (other than Unified or any wholly
owned subsidiary of Unified) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Unified that represent 20% or more of
the combined voting power of Unified's then outstanding
securities; (ii) during any period of two (2) consecutive years
beginning on or after March 1, 2000, individuals who at the
beginning of such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the election, or
the nomination for election, by Unified's stockholders, of each
new director is approved by a vote of at least two-thirds (2/3) of
the directors then still in office who were directors at the
beginning of the period, but excluding any individual whose
initial assumption of office occurs as a result of either an
actual or threatened election contest (as such term is used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; (iii) there is
consummated any consolidation or merger of Unified in which
Unified is not the continuing or surviving corporation or pursuant
to which shares of Unified's Common Stock are converted into cash,
securities or other property, other than a merger of Unified in
which the holders of Unified's Common Stock immediately prior to
the merger have the same proportionate ownership of common stock
of the surviving corporation immediately after the merger; (iv)
there is consummated any consolidation or merger of Unified in
which Unified is the continuing or surviving corporation in which
the holders of Unified's Common Stock immediately prior to the
merger do not own fifty percent (50%) or more of the stock of the
surviving corporation immediately after the merger; (v) there is
consummated any sale, lease, exchange or other transfer (in one
transaction or a series of transactions) of all or substantially
all of the assets of Unified (provided, however, that for purposes
of this subsection (v) any sale lease, exchange or other transfer
between subsidiaries that are directly or indirectly wholly owned
by Unified shall not be deemed a Change of Control); (vi) Xxxxxxx
X. Xxxxxxx ceases to serve as the Chairman of the Board or as the
Chief Executive Officer of Unified; or (vii) the stockholders of
Unified approve any plan or proposal for the liquidation or
dissolution of Unified.
1.1(c) "CHANGE IN CONTROL DATE" shall mean the date of the
Change in Control.
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1.1(d) "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(e) "COMMON STOCK" shall mean the common stock, $0.01
par value, of Unified.
1.1(f) "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(g) "EFFECTIVE DATE" shall mean January 1, 2000.
1.1(h) "EMPLOYMENT PERIOD" shall mean the period that
begins on the Effective Date and ends on the earlier of: (i)
twelve (12) months after the date on which Unified shall have
delivered to Executive written notice (in accordance with the
provisions of Section 9.3 hereof) of termination of the Employment
Period, which notice shall not be delivered prior to the fourth
anniversary of the Effective Date (and the parties agree that the
term described in this clause (i) shall be for a period of not
less than sixty (60) months); or (ii) the Date of Employment
Termination (as defined in Section 3.6 hereof).
1.1(i) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended. All citations to the Exchange Act shall include
any amendments or any substitute or successor provisions thereto.
1.1(j) "EXPECTED EMPLOYMENT PERIOD" shall mean the period
of time beginning on the Effective Date and ending on the date
described in Section 1.1(h)(i). If no written notice terminating
the Employment Period (as required in Section 1.1(h)(i)) shall
have been delivered to Executive on or before the Date of
Employment Termination (as defined in Section 3.6 hereof) or such
notice is delivered prior to the fourth anniversary of the
Effective Date, then for all purposes of this Agreement such
notice shall be deemed to have been delivered on the later of such
Date of Employment Termination and the fourth anniversary of the
Effective Date. For example and without limitation: (i) if
Unified were to terminate the Executive without Cause (as defined
in Section 3.3 hereof) at the end of the eighteenth (18th) month
of the Employment Period, the Expected Employment Period for
purposes of Section 4.1 would end on the fifth (5th) anniversary
of the Effective Date; (ii) if Unified were to terminate the
Executive without Cause on the fourth (4th) anniversary of the
Effective Date and no written notice of termination of the
Employment Period had previously been delivered, such notice would
be deemed delivered on such fourth (4th) anniversary, and the
Expected Employment Period for purposes of Section 4.1 would end
on the fifth (5th) anniversary of the Effective Date; and (iii) if
Unified were to deliver written notice of termination of the
Employment Period on the fourth (4th) anniversary of the Effective
Date, and thereafter Executive's employment is terminated by
Unified or Executive (whether without Cause, for Good Reason or
otherwise), the Expected Employment Period for purposes of Section
4.1 would end on the fifth (5th) anniversary of the Effective
Date.
1.1(k) "FAIR MARKET VALUE" means, for any particular date,
(i) for any period during which Common Stock shall be listed for
trading on a national securities exchange, the closing price
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per share of Common Stock on such exchange as of the close of such
trading day; (ii) for any period during which Common Stock shall
not be listed for trading on a national securities exchange, but
when Common Stock is authorized as a Nasdaq National Market
security, the last transaction price per share as quoted by The
Nasdaq Stock Market (the "Nasdaq"); (iii) for any period during
which Common Stock shall not be listed for trading on a national
securities exchange or authorized as a Nasdaq National Market
security, but when Common Stock shall be authorized as a Nasdaq
SmallCap Market security, the closing bid price as reported by the
Nasdaq; (iv) for any period during which the Common Stock shall be
listed for trading on an electronic communications network (an
"ECN"), an alternative trading system (an "ATS") and/or on-line
order matching system or auction system, the closing bid price as
reported by such ECN, ATS and/or on-line order matching system or
auction system; or (v) the market price per share of Common Stock
as determined by an investment banking firm or certified public
accountant selected by the Board in the event neither (i), (ii),
(iii) nor (iv) above shall be applicable. If Fair Market Value is
to be determined as of a day when the securities markets are not
open, the Fair Market Value on that day shall be the Fair Market
Value on the preceding day when the markets were open.
1.1(l) "PERSON" shall include an individual, firm, trust,
estate, association, joint venture, partnership, corporation,
limited liability company, organization or other entity.
1.1(m) "UNIFIED" shall mean Unified Financial Services,
Inc., a Delaware corporation.
1.1(n) "UNIFIED GROUP" means, jointly and severally,
Unified and any Person more than twenty percent (20%) of which (by
value and not by voting power) is directly or indirectly owned by
Unified at any time during the Employment Period, and any
successors or assigns of Unified or any other Person included in
the Unified Group.
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 and except where
expressly provided to the contrary, the term "Section" means the text
that accompanies the specified Section of this Agreement. For example
and without limitation, a reference to "Section 3" would mean all the
text under the headings numbered 3.1 through 3.6.
1.4 INCORPORATION OF RECITALS; WAIVER OF DEFENSES. The Recitals
set forth on the first page of this Agreement are hereby incorporated in
this Section 1.4 as if fully set forth herein and are binding upon the
parties to this Agreement. Unified shall not, directly or indirectly,
raise as a defense to enforcement or excuse for any nonperformance under
this Agreement Executive's prior representation of Unified, Executive's
representation of himself in connection with this Agreement, or any
failure on the part of Unified to secure adequate legal representation
in connection with this Agreement. Moreover, Unified represents and
warrants that this Agreement is duly authorized and binding upon Unified
in accordance with its terms; and Unified shall take no action
inconsistent with, and shall raise no objections or defenses to the
enforcement of this Agreement based in whole or part upon, those
grounds. Executive shall not, directly or indirectly, raise as a
defense to enforcement or excuse for any nonperformance under this
Agreement Executive's representation of himself in connection with this
Agreement. 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.
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1.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky,
without reference to its conflict of law principles.
SECTION 2: TERMS AND CONDITIONS OF EMPLOYMENT.
2.1 PERIOD OF EMPLOYMENT. Throughout the Employment Period, the
Executive shall serve in the employ of Unified 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 General Counsel and an Executive Vice President of
Unified. The Executive shall render legal and administrative
services to Unified as are customarily performed by persons
situated in similar executive legal positions including, among
other things, retention and oversight of inside and outside legal
counsel for Unified and the other members of the Unified Group,
and may have such other powers or authority as may from time to
time be prescribed by the Board or any other executive officer of
Unified or any other member of the Unified Group (collectively,
"Positions and Duties"). The Executive shall report to the Chief
Executive Officer of Unified.
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 reasonable attention and time during normal
business hours to the business and affairs of Unified 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; (iii) manage personal
investments for the Executive's own account or those of family
members; or (iv) render legal services in an "of counsel" or
similar role to or for the benefit of Persons who are not members
of the Unified Group, so long as such activities described in
clauses (i) through (iv) do not materially interfere with the
performance of the Executive's responsibilities as a senior
executive officer of Unified in accordance with this Agreement.
The parties agree that an "of counsel" or similar relationship
will be beneficial to Unified and will not conflict with
Executive's Positions or Duties and will not present a conflict of
interest to Executive or Unified.
2.3 COMPENSATION. The Executive's annual compensation and other
benefits described in this Section 2.3 shall be provided by Unified.
2.3(a) ANNUAL BASE SALARY. From the Effective Date, the
Executive shall receive an annual base salary of $250,000.00,
which shall be due and paid in equal or substantially equal
installments, to be paid at the same frequency as other employees
of Unified but no less often than monthly. The Annual Base Salary
(as hereinafter defined) payable to the Executive shall be
increased on each January 1 occurring during the Employment Period
by no less than an amount equal to the Annual Base Salary for the
immediately preceding calendar year multiplied by the Adjustment
Percentage. The Adjustment Percentage shall equal the sum of (A)
the CPI Percentage, plus (B) if such January 1 falls during the
first sixty (60) months of the Employment Period, fifteen percent
(15%), or if such January 1 falls after the first sixty (60)
months of the Employment Period, seven percent (7%). The CPI
Percentage shall mean the greater of (i) zero and (ii) the
remainder of (x) the quotient of the CPI-U for September of the
year preceding such January 1 divided by the CPI-U for the
immediately preceding September, minus (y) one (1), and any such
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remainder shall be expressed as a percentage. By way of example
and not limitation, the CPI Percentage for January 1, 2002 shall
be (assuming such amount exceeds zero) the remainder of (x) the
quotient of the September 2001 CPI-U divided by the September 2000
CPI-U, minus (y) one (1); in addition, had this Agreement been in
effect on January 1, 1999, the actual CPI Percentage for 1999
would have been the quotient of 163.6 (the September 1998 CPI-U)
divided by 161.2 (the September 1997 CPI-U) minus one (1), the
remainder of which is 1.488 percent (0.01488). The CPI-U shall
mean the United States Department of Labor's Consumer Price Index,
All Items, All Urban Consumers (CPI-U) (1982-84=100), All Cities
(or the successor of such CPI-U, should such index be no longer
published by the Department of Labor). The Annual Base Salary
shall never be reduced during the Employment Period. "Annual Base
Salary" as used herein shall mean the annual base salary in
respect of a calendar year in the Employment Period, as increased
from time to time hereunder, and in respect of 2000 shall mean
$250,000.00.
2.3(b) INCENTIVE BONUSES. In addition to Annual Base
Salary, the Executive shall be awarded incentive bonuses on a
basis commensurate with those provided through the incentive
compensation plans available to other senior executive officers of
Unified.
2.3(c) SAVINGS AND RETIREMENT PLANS. Throughout the
Employment Period, the Executive shall be entitled to participate
in and receive cash and/or stock-based benefits commensurate with
the savings and retirement plans available to other senior
executive officers of Unified. In addition, Executive shall be
granted on the Effective Date, and on each January 1 during the
first sixty (60) months of the Expected Employment Period an
option, which option shall be fully vested on the date of grant,
to acquire such number of shares of Common Stock as shall equal
one-half of the Annual Base Salary (after giving effect to the
annual increase required by Section 2.3(a) hereof) divided by the
Fair Market Value of the Common Stock on the date of grant, at an
exercise price per share equal to the Fair Market Value of the
Common Stock on the date of grant.
2.3(d) FRINGE BENEFITS. Throughout the Employment Period,
the Executive shall be entitled to such fringe benefits as are
provided to other senior executive officers of Unified or shall
receive cash benefits commensurate therewith.
2.3(e) WELFARE BENEFIT PLANS. Throughout the Employment
Period (and thereafter, subject to Section 4.1(c) hereof), the
Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits
under, or receive cash benefits commensurate with, all welfare
benefit plans, practices, policies and programs provided by
Unified (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 available to other senior executive officers of
Unified.
2.3(f) 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
applicable to other senior executive officers of Unified.
2.3(g) OFFICE AND SUPPORT STAFF. Throughout the
Employment Period, Unified shall provide the Executive with
reasonable office space and equipment (including furnishings,
books and reasonable access to research services) no less than
equal to those generally provided to other senior executive
officers of Unified, and to personal secretarial and other
assistance; provided, that
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the parties contemplate that the Executive and Xxxxx Xxxxxx (while
he is employed by Unified) will share secretarial and other staff
assistance to the extent feasible.
2.3(h) VACATION. Throughout the Employment Period, the
Executive shall be entitled to four (4) weeks paid vacation per
year.
2.3(i) LICENSES AND LEGAL EDUCATION. Throughout the
Employment Period, Unified shall pay any and all state licensing
fees required to be paid by Executive to practice law in any state
in which Executive currently is licensed as a practicing attorney
and in any state in which Executive is required to be licensed in
order to represent Unified and its subsidiaries as a practicing
attorney. In addition, throughout the Employment Period,
Executive shall be entitled to attend two (2) national continuing
legal education seminars annually, and Unified shall pay any and
all fees, including, among other things, registration, travel and
lodging, related thereto.
2.3(j) EXECUTIVE'S RIGHTS NONASSIGNABLE. The right to
receive the Annual Base Salary (as further provided in Section 4)
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 SITUS OF EMPLOYMENT. The Executive's services shall be
performed in St. Louis, Missouri during the Employment Period, except to
the extent (and under the terms and conditions) that each of the
Executive, Unified and (if he shall then be employed by Unified) Xxxxx
Xxxxxx shall agree to a different location. During the Employment
Period, each of the Executive and the Associate General Counsel shall be
located at the same office.
SECTION 3: TERMINATION OF EMPLOYMENT. Unified may only terminate
Executive's employment for reasons constituting Disability (as defined
in Section 3.2 hereof) or Cause (as defined in Section 3.3 hereof). Any
termination by Unified for reasons failing to constitute Cause or
Disability is a breach of this Agreement having the remedies set forth
herein. Executive may terminate his employment by reason of death or
Good Reason (as defined in Section 3.4 below). Any termination by
Executive during his life for reasons failing to constitute Good Reason
is a breach of this Agreement having the remedies set forth herein. In
the case of any breach of the provisions of this Agreement that does not
entitle the aggrieved party to terminate Executive's employment, the
aggrieved party shall remain entitled to any other remedy or monetary
damages as elsewhere provided in this Agreement (see, for example,
Section 5.7 and Section 8).
3.1 DEATH. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period.
3.2 DISABILITY. If Unified 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 9.3 of its
intent to terminate the Executive's employment. In such event, the
Executive's employment with Unified 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 his 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 business days by reason of a
physical and/or mental condition. "Disability" shall be deemed to exist
when certified by a physician selected by Unified or its insurers and
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acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld unreasonably).
The Executive shall submit to such examinations and tests as such
physician deems reasonably necessary to make any such Disability
determination.
3.3 TERMINATION FOR CAUSE. Unified may terminate the
Executive's employment during the Employment Period for "Cause," which
for purposes of this Agreement shall mean termination based upon, and
only upon: (i) the continued failure of the Executive to perform
substantially, during the Employment Period, the Executive's Positions
and Duties with Unified (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand
for substantial performance is delivered to the Executive by the Board
or the Chief Executive Officer of Unified which specifically identifies
the manner in which the Board or Chief Executive Officer believes that
the Executive has not substantially performed the Executive's Positions
and Duties, or (ii) the willful engaging by the Executive during the
Employment Period in gross misconduct that directly causes material
injury to Unified, or (iii) conviction of the Executive of a felony (or
a guilty or nolo contendere plea by the Executive with respect thereto)
willfully committed by the Executive in the course of performance of his
Positions and Duties with Unified during the Employment Period. For
purposes of this paragraph, no course of conduct, action or omission on
the Executive's part shall be considered to be grounds for Cause unless
such course of conduct, action or omission (x) was done without
reasonable belief that the course of conduct, action or omission was in
the best interests of Unified, and (y) is inconsistent with standards of
conduct consistently applied to other senior executive officers of the
Unified Group. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board, or based upon the
instructions of the Chief Executive Officer or any other senior officer
of Unified or any other member of the Unified Group, or based upon the
advice of counsel for Unified shall be conclusively presumed to be done,
or omitted to be done, by the Executive in good faith and in the best
interests of Unified.
Termination for Cause may be effected by, and only by, written notice to
Executive in accordance with the provisions of Section 9.3 hereof
stating with particularity each action or condition constituting Cause,
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 Executive, Unified shall use its best efforts to cooperate
with Executive to cure the action(s) or condition(s) set forth in
Unified's notice. If a cure is commercially reasonable and the
Executive fails to take sufficient steps within such ninety-day period
to effectuate a cure, then and only then may Unified terminate his
employment for Cause. Failure of Unified to set forth in such notice
any material fact or circumstance (then known or that should be then
known by Unified) that contributes to a showing of Cause shall waive any
right of Unified to assert such fact or circumstance in enforcing its
rights under this Agreement in connection with such notice, but shall
not waive Unified's right pursuant to any subsequent notice to terminate
the Executive on grounds of any then unknown material fact or
circumstance.
3.4 GOOD REASON. The Executive may terminate his employment
with Unified 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 Positions and
Duties (including status, offices, titles and reporting
requirements), as contemplated by Section 2.2 or any other action
by Unified that results in a material diminution in such Positions
and Duties, excluding for this purpose any action not taken in bad
faith and which is remedied by Unified promptly after receipt of
notice thereof given by the Executive in accordance with the
provisions of Section 9.3 hereof; or
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(ii) (a) the failure by Unified to provide any of the
benefits enumerated in Section 2.3 hereof; or (b) the taking of
any action by Unified that would adversely affect the Executive's
participation in, or materially reduce the Executive's benefits
under, any plans described in Section 2.3(e) hereof; or
(iii) Unified requiring the Executive to be based at any
office or location other than that described in Section 2.4
hereof; or
(iv) (a) (1) an attempt by Unified or any other member
of the Unified Group to cause the Executive to engage in conduct
that could result in the suspension of his license to practice
law, or (2) the taking of any course of conduct by Unified and/or
any member of the Unified Group that would require the Executive
to resign his employment with Unified under the ethical rules of
any jurisdiction in which the Executive is licensed to practice
law; in each case based upon the determination or written advice
of the agency or other body having authority to suspend such
license, or (b) the refusal of Unified to submit or permit the
submission of facts and/or other statements to such agency or
other body for purposes of obtaining such determination or written
advice pursuant to subsection (a) hereof; or
(v) any purported termination by Unified of the
Executive's employment otherwise than as expressly permitted by
this Agreement; or
(vi) any failure by Unified to comply with and satisfy
the provisions of Section 7.2; or
(vii) within a period ending at the close of business on
the date three (3) years after the Change in Control Date, the
Executive, in his sole and absolute discretion, determines and
notifies Unified in writing, that he does not wish to continue his
employment with Unified.
Other than a Termination for Good Reason pursuant to Section 3.4(v),
3.4(vi) or 3.4(vii), Termination for Good Reason may be effected by, and
only by, written notice to Unified in accordance with the provisions of
Section 9.3 stating with particularity each action or condition
constituting 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 Unified, the Executive shall use his
best efforts to cooperate with Unified to cure the action(s) or
condition(s) set forth in the Executive's notice. If a cure is
commercially reasonable and Unified fails to take sufficient steps
within such ninety-day period to effectuate a cure, then and only then
may the Executive terminate his employment for Good Reason. Failure of
Executive to set forth in such notice any material fact or circumstance
(then known or that should be then known by Executive) that contributes
to a showing of Good Reason shall waive any right of Executive to assert
such fact or circumstance in enforcing his rights under this Agreement
in connection with such notice, but shall not waive Executive's right
pursuant to any subsequent notice to terminate his employment on grounds
of any then unknown material fact or circumstance.
3.5 NOTICE OF TERMINATION. Any termination by Unified 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 9.3 that: (i) indicates the specific
termination provision in this Agreement relied upon (including reliance
upon Section 1.1(h)(i), if the Notice of Termination is delivered to
terminate the Employment Period); (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;
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and (iii) if the Date of Employment Termination (as defined below) is
other than the date such notice is given, specifies the Date of
Employment Termination (which date shall be not more than ninety (90)
days after the giving of such notice), provided that no such date need
be specified if such notice relates to a termination for Cause or Good
Reason. The failure by the Executive or Unified 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 Unified to assert such fact or circumstance in enforcing the
Executive's or Unified's, as the case may be, rights hereunder.
3.6 DATE OF EMPLOYMENT TERMINATION. "Date of Employment
Termination" means: (i) if the Executive's employment is terminated by
Unified for Cause or by the Executive for Good Reason, the later of the
day specified in the Notice of Termination and the last day of the cure
period specified in Section 3.3 or 3.4; (ii) if the Executive's
employment is terminated by reason of death or Disability, 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 Unified other
than for Cause or Disability, the date the Notice of Termination is
given or any later date (within the ninety-day limit provided in Section
3.5) specified therein, as the case may be; (iv) if the Executive shall
terminate employment with Unified for any reason other than for Good
Reason, the date the Executive shall terminate his employment with
Unified or, if not more than ninety (90) days later, the date specified
in the Notice of Termination; and (v) in any other case, the date on
which the Expected Employment Period ends.
SECTION 4: CERTAIN BENEFITS UPON TERMINATION.
4.1 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If during the
Employment Period (i) Unified shall terminate the Executive's employment
without Cause or (ii) the Executive shall terminate employment with
Unified for Good Reason, the Executive shall be entitled to the benefits
provided below:
4.1(a) "ACCRUED OBLIGATIONS": On or before the fifth
(5th) business day following the Date of Employment Termination,
Unified shall pay to the Executive the sum of: (1) the Executive's
Annual Base Salary through the Date of Employment Termination to
the extent not previously paid; (2) any compensation previously
deferred by the Executive (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 Expected Employment Period that occurs after the
Date of Employment Termination, Unified shall pay to the Executive
the same Annual Base Salary as would have been paid to the
Executive had the Executive remained in Unified's employ during
the remainder of the Expected Employment Period. Unified 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); provided, however, in the event of termination
of employment by Executive pursuant to the provisions of Section
3.4(vi) or (vii) hereof, Unified shall pay on the Date of
Employment Termination to the Executive all amounts due pursuant
to this Section 4.1 and Section 4.5.
4.1(c) "OTHER BENEFITS": To the extent not previously
paid or provided, Unified shall timely pay or provide to the
Executive and/or the Executive's family any other amounts or
benefits required to be paid or provided which the Executive
and/or the Executive's family is eligible to receive pursuant to
this Agreement or under any plan, program, policy or practice or
agreement of Unified provided to other senior executive officers
and their families during the ninety-day period
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immediately preceding the Effective Date or, if more favorable to
the Executive, those provided generally after the Effective Date
to other senior executive officers of Unified and their families.
Over the remainder of the Expected Employment Period, the
Executive also shall receive health insurance benefits as
maintained by Unified for the benefit of its senior executive
officers.
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 Executive's
legal representatives under this Agreement, other than for timely
payment of Accrued Obligations (as provided 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 provided 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 provided in Section 4.1(a)). If the Executive
terminates employment with Unified during the Employment Period
(excluding a termination for death or Good Reason), this Agreement shall
terminate without further obligations to the Executive, other than for
timely payment of Accrued Obligations (as provided in Section 4.1(a)).
4.5 ANNUAL NONCOMPETE AND SEVERANCE PAYMENTS. Except in the
case of a termination of the Executive's employment by Unified for
Cause, by Executive without Good Reason or upon the death or Disability
of the Executive, on or before the thirtieth (30th) day following the
Date of Employment Termination (as defined in Section 3.6 hereof), and
on each of the first and second anniversary dates of the Date of
Employment Termination, Unified shall pay to the Executive an amount
equal to the Annual Base Salary as was (or would have been) determined
for the final calendar year of the Expected Employment Period, and if
the termination or purported termination shall be by Unified without
Cause or by Executive for Good Reason pursuant to Section 3.4(v), each
such payment shall be increased by one-half as liquidated damages (and
not as a penalty) in recognition of damage to Executive's reputation and
the enhanced difficulties inherent in finding replacement employment
while being removed from the marketplace. The payments and arrangements
in this Section 4.5 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).
4.6 EXCISE TAXES. The parties recognize that termination of
Executive's employment in connection with any change of control or other
payments made in connection with any change in control could result in
excise taxes to the Executive, and the parties provide for payment of
such taxes as follows.
(i) Anything in this Agreement to the contrary
notwithstanding, in the event: (A) it shall be determined
that any payment or distribution by Unified to or for the
benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise) (a "Payment") would be subject to
the excise tax imposed by Code Section 4999; or (B) any
interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with
any interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall
be entitled to receive an
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additional payment (a "Gross-Up Payment") in an amount equal
to the Excise Tax imposed on the Payment and on the Gross-Up
Payment as well as any additional income tax, employment tax
and Excise Tax payable with respect to such additional
payment (including any interest or penalties imposed with
respect to such excise tax). The Gross-Up Payment shall not
include any amount for the payment of any income or
employment taxes imposed on the Payment, but shall include
any income or employment taxes payable with respect to any
Gross-Up Payment (and any interest and penalties imposed
with respect thereto).
(ii) Subject to the provisions of Section
4.6(iii), all determinations required to be made under this
Section, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such
determination, shall be made by an independent accountant
jointly selected by Unified and the Executive which shall
provide detailed supporting calculations both to Unified and
the Executive within fifteen (15) business days of the
receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by Unified.
All fees and expenses of the independent accountant shall be
borne solely by Unified. Any Gross-Up Payment, as
determined pursuant to this Section 4.6, shall be paid by
Unified to the Executive within five (5) days of the receipt
of the independent accountant's determination. If the
independent accountant determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive
with a written opinion that failure to report the Excise Tax
on the Executive's applicable Federal income tax return
would not result in the imposition of a negligence or
similar penalty. Any determination by the independent
accountant shall be binding upon Unified and the Executive.
As a result of the uncertainty in the application of Code
Section 4999 at the time of the initial determination by the
independent accountant hereunder, it is possible that Gross-
Up Payments which will not have been made by Unified should
have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event
that Unified exhausts its remedies pursuant to Section
4.6(iii) and the Executive thereafter is required to make a
payment of any Excise Tax, the independent accountant shall
determine the amount of the Underpayment that has occurred
and any such Underpayment, as well as any interest and
penalties imposed thereon, shall be promptly paid by Unified
to or for the benefit of the Executive.
(iii) The Executive shall notify Unified in
writing of any claim by the Internal Revenue Service that,
if successful, would require the payment by Unified of the
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten (10) business days
after the Executive is informed in writing of such claim and
shall apprise Unified of the nature of such claim and the
date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration
of the thirty (30) day period following the date on which
the Executive gives such notice to Unified (or such shorter
period ending on the date that any payment of taxes with
respect to such claim is due). If Unified notifies the
Executive in writing prior to the expiration of such period
that it desires to contest such claim, the Executive shall:
(a) give Unified any information reasonably
requested by Unified relating to such claim;
(b) take such action in connection with
contesting such claim as Unified shall reasonably
request in writing from time to time, including,
without limitation,
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accepting legal representation with respect to such
claim by an attorney reasonably selected by
Unified;
(c) cooperate with Unified in good faith in
order to effectively contest such claim; and
(d) permit Unified to participate in any
proceedings relating to such claim; provided,
however, that Unified shall bear and pay directly
all costs and expenses (including additional
interest and penalties) incurred in connection with
such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result
of such representation and payment of costs and
expenses. Without limitation on the foregoing
provisions of this Section 4.6, Unified shall
control all proceedings taken in connection with
such contest and, at its sole option, may pursue or
forego any and all administrative appeals,
proceedings, hearings and conferences with the
taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to
pay the tax claimed and xxx for a refund or contest
the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a
determination before any administrative tribunal,
in a court of initial jurisdiction and in one or
more appellate courts, as Unified shall determine;
provided, however, that if Unified directs the
Executive to pay such claim and xxx for a refund,
Unified shall advance the amount of such payment to
the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect
thereto) imposed with respect to such advance or
with respect to any imputed income with respect to
such advance; and further provided that any
extension of the statute of limitations relating to
payment of taxes for the taxable year of the
Executive with respect to which such contested
amount is claimed to be due is limited solely to
such contested amount. Furthermore, Unified's
control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue
Service or any other taxing authority.
(iv) If, after the receipt by the Executive of
an amount advanced by Unified pursuant to Section 4.6(iii),
the Executive becomes entitled to receive any refund with
respect to such claim, the Executive shall (subject to
Unified's compliance with the requirements of Section
4.6(iii)) promptly pay to Unified the amount of such refund
(together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by Unified pursuant to
Section 4.6(iii), a determination is made that the Executive
shall not be entitled to any refund with respect to such
claim and Unified does not notify the Executive in writing
of its intent to contest such denial or refund prior to the
expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
4.7 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 Unified and for which
the Executive
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may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any other contract or agreement
with Unified. Vested benefits which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of, or any
contract or agreement with, Unified at or subsequent to the Date of
Employment Termination, shall be payable in accordance with such plan,
policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
4.8 FULL SETTLEMENT; EXECUTIVE HAS NO DUTY OF MITIGATION.
Unified's obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected
by any set-off, counterclaim, recoupment, defense or other claim, right
or action which Unified may have against the Executive or others, other
than any set-off for monies improperly taken by Executive (including any
funds embezzled). In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this
Agreement and, except as provided in Section 4.1(c), such amounts shall
not be reduced whether or not the Executive obtains other employment.
Unified agrees to pay promptly as incurred, to the full extent permitted
by law, all legal fees and expenses which the Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by
Unified, the Executive or others of the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the
Executive regarding the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Code Section 7872(f)(2)(A). 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 date three (3) years after the Date of
Employment 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; provided however, nothing in this
Section 5 shall prohibit Executive from engaging in the private practice
of law. The Relevant Market Area is the area within the fifty-mile
radius of: (i) each office maintained by Unified at any time during the
Employment Period; and (ii) each office maintained by any other member
of the Unified Group at any time during the Employment Period. In
addition, during the Restricted Period, the Executive shall not,
directly or indirectly, either as an 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 percent (1%) by value of the equity
securities of such company.
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 Unified at any time
during the Employment Period; and (ii) 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 Unified at
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any time during the Employment Period; and (ii) 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 Unified 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
Unified'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. Unified
and the Executive acknowledge that during the Executive's period of
employment by Unified, the Unified Group will furnish the Executive with
Confidential Information. The Executive agrees both during his
employment with Unified, 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 Unified, 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
Unified 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 disclosure so
that it will receive confidential treatment thereafter. The Executive
agrees to reimburse Unified 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 Unified and the Unified Group, 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
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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.
SECTION 6: OWNERSHIP OF PAPERS AND INTELLECTUAL PROPERTY RIGHTS.
6.1 PAPERS AND PROPERTY. Executive acknowledges the Unified
Group's (including Unified'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 the Employment
Period or provided by Unified, or which otherwise come into the
Executive's possession by reason of employment with Unified. Executive
agrees not to make or permit to be made, except in pursuit of
Executive's Position and Duties hereunder, any copies of such items.
Executive further agrees to deliver to Unified 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 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 Unified 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 Unified. Executive shall inform Unified 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 Unified 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 Unified 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 Unified's request and at Unified's expense, the
Executive shall execute such documents and provide such assistance
as may be deemed necessary by Unified to apply for, prosecute,
obtain, 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 Unified to
assist Unified in perfecting or protecting any or all of its
rights in the Inventions.
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6.2(c) COPYRIGHT. Executive acknowledges that all
copyrightable Inventions are "works made for hire" and
consequently that Unified owns all copyrights thereto, including,
but not limited to, 17 U.S.C. Sections 101 and 210. Unified and
its 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 Unified, 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 whole or in part by
the Executive in connection with his employment are, shall be, or
shall become, owned by Unified.
SECTION 7: SUCCESSORS.
7.1 SUCCESSORS OF EXECUTIVE. This Agreement is personal to the
Executive, and without the prior written consent of Unified, amounts
receivable hereunder shall not be assignable by the Executive otherwise
than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
7.2 SUCCESSORS OF UNIFIED. Unified shall require any Person(s)
that acquires (whether directly or indirectly, in one or more
transactions, whether by purchase, merger, consolidation or otherwise)
all or substantially all of the business and/or assets of Unified to
assume expressly and agree to perform this Agreement in the same manner
and to the same extent that Unified would be required to perform it if
no such transaction had taken place. Failure of Unified to obtain such
agreement on or before thirty (30) days prior to the effectiveness of
any such transaction shall be a breach of this Agreement and such breach
(i) shall entitle the Executive to terminate this Agreement at his
option at any time during or after such thirty (30) day period for Good
Reason, and (ii) shall entitle Executive to immediate payment of all
amounts that are then or that would become due from Unified hereunder.
As used in this Agreement, "Unified" shall mean Unified as hereinbefore
defined and any Person that assumes and agrees to perform (or is
required to assume and perform) this Agreement by operation of law, the
provisions of this Section 7.2 or otherwise.
SECTION 8: ARBITRATION. Notwithstanding any other provision of this
Agreement 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. Unified 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
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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), except that the parties shall be allowed to
take depositions as provided under applicable state and federal laws,
and the arbitration award, decree and/or order may grant any remedy or
relief that is in accordance with the provisions of this Agreement and
applicable Kentucky law. 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 9: MISCELLANEOUS.
9.1 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.
9.2 TIME PERIODS. Any period of time measured under this
Agreement by days shall refer to calendar days and not business days,
unless otherwise provided. 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 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.
9.3 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:
-------------------
Xxxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
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Notice to Unified:
-----------------
Unified Financial Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman, President and Chief Executive
Officer
9.4 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.
9.5 WITHHOLDING. Unified 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.
9.6 WAIVER. The Executive's or Unified'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
Unified 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.
9.7 ENTIRE AGREEMENT. All prior negotiations and agreements
between the parties hereto regarding Executive's employment are
superseded by this Agreement, and there are no representations,
warranties, understandings or agreements other than those expressly set
forth herein, except as modified in writing concurrently herewith or
subsequent hereto.
9.8 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.
9.9 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.
9.10 ASSIGNMENT. Subject to the provisions of Section 7.2,
Unified 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 (except Sections 1.1(d) and 2.3(a)), any Person that acquires
all or substantially all of Unified's assets or of Unified's stock, or
with which or into which Unified merges or consolidates.
9.11 INTENDED BENEFICIARIES. This Agreement shall be binding
upon the Executive, Unified and their respective successors and assigns,
and shall inure to the benefit of the Executive, Unified, 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.
9.12 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one
instrument. A signature transmitted by facsimile shall be deemed a
delivery of an original, manually executed counterpart.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Executive and Unified, pursuant to the
authorization from its Executive Committee of the 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.
EACH OF THE EXECUTIVE AND UNIFIED HAS REVIEWED THESE AND THE OTHER
PROVISIONS OF THIS AGREEMENT WITH LEGAL COUNSEL OF HIS OR ITS,
RESPECTIVELY, OWN CHOOSING.
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
UNIFIED FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Chairman,
President and Chief Executive Officer
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