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EXHIBIT 10(8)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
the 14th day of August, 1992 by and among NUCORP, INC., a Delaware corporation
("NUC"), SI ACQUISITION CORP., a Texas corporation ("SI"), SUREWEST FINANCIAL
CORP., a South Dakota corporation ("SFC"), WESTERN SURETY COMPANY, a South
Dakota corporation ("WSC"), EQUITY HOLDINGS ("EHI"), an Illinois partnership,
and JOE P. KIRBY (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has been employed as the President and Chief
Executive Officer of WSC since 1979 and has been a member of its Board of
Directors since 1972, and a member of its Executive Committee since its
inception in 1982, and has also been an officer and Director of, and has
performed services for, SFC which owns 100% of the shares of stock of WSC, and
serves as a member of the Board of Directors of each subsidiary of WSC. The
Executive's employment by WSC was confirmed in an Employment Agreement dated
January 1, 1992 (the "Prior Agreement"); and
WHEREAS, on or about the date hereof, through a merger transaction, NUC
acquired 100% of the shares of SFC and in connection thereof, SI, NUC, SFC and
WSC desire that SFC and WSC continue to employ the Executive for the period
provided in this Agreement and the Executive is willing to continue to serve in
the employ of both SFC and WSC and of any direct or indirect subsidiary of
either of them (sometimes each a "Company" or collectively called "Companies")
on the terms and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties agree as follows:
ARTICLE I: CANCELLATION OF THE PRIOR AGREEMENT.
WSC and the Executive mutually agree to terminate the Prior Agreement
effective and concurrent with the effective date of this Agreement. In
addition, all other employment agreements or arrangements existing between the
Executive, SFC and WSC, whether oral or in writing, shall be deemed terminated
concurrent with the effective date of this Agreement.
ARTICLE II: EMPLOYMENT.
A. Direction. SFC and WSC will continue to employ the Executive
for a three (3) year period (the "Employment Period") commencing on August 14,
1992, and ending August 14, 1995 ("Expiration Date") unless such employment
shall have been sooner terminated, as hereinafter set forth. The Executive
accepts such employment and agrees to serve in the capacity set forth in this
Agreement and to perform such services of a Chief Executive Officer
commensurate with his position and offices and agrees diligently and
competently to devote the necessary business time and attention to such
services (subject to the provisions of Article II, Section C below) excepting
during disabilities, illness, vacation and paid holidays given by the
Companies.
B. Positions and Duties. During the Employment Period, the
Executive shall continue to serve as President and Chief Executive Officer of
each of the Companies and as Co-Chairman of its Board of Directors ("Board")
with Dan L. Kirby. In such capacity, subject to the direction, approval and
control of the Boards of the Companies, the Executive shall be in complete
charge of all the operations and management of both SFC and WSC and any of
their direct or
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indirect subsidiaries and shall have full authority and responsibility, for
setting strategic direction, formulating policies and administering the
Companies in all respects.
1. Basic Duties - In general, the Executive shall continue to
perform the duties previously performed by him for the Companies and
continue to expend such of his working time for philanthropic, political,
civic, and promotional activities as is commensurate with the past
practices of the Executive and the Companies. In this connection, the
Executive's responsibilities, duties and powers shall include, but are
not-necessarily limited to:
(a) Developing and establishing strategic plans and
policies;
(b) Maintaining an effective organization for the Companies
and in this connection, he shall approve the hiring and termination of
(i) employees who report directly to the Chief Operating Officer of WSC
and (ii) the top twenty officers of the Companies except as otherwise
directed by the Board of Directors.
(c) Participating in the operational planning process for the
Companies;
(d) Maintaining the underwriting and marketing philosophies
of the Companies;
(e) Maintaining current knowledge of developments in the
miscellaneous fidelity and surety bond industry and, with Dan L. Kirby,
liaison with reinsurers; and
(f) Representing the Companies periodically at select
industry gatherings (e.g. NAIS, SAA and NASBP) and in Company and
community activities. In this connection, in consultation with Dan L.
Kirby, the
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Companies' Senior Vice-President, the Executive will supervise and
determine the Companies' contributions in the name of the Company to
Sioux Falls and South Dakota local charities and related causes in
accordance with the past practice of the Companies and shall
regularly report such contribution activity to the Board of the
Directors of the Companies.
2. Committees. Should an Executive Committee of either SFC
and/or WSC be formed, the Executive shall serve as Co-Chairman of the
Executive Committee with Dan L. Kirby. The Executive shall have the right, but
not the obligation, to serve as a member of all other SFC or WSC Committees
with management or oversight responsibilities for the Companies.
3. Directorships; Voting.
(a) Each of NUC, SFC, and WSC agree that, so long
as the Executive is employed under this New Agreement, all
voting rights held, directly or indirectly, by them, their nominees or
assignees, shall all be voted in favor of the Executive to be nominated
to the respective Boards of SFC and WSC (and any subsidiaries of
either), to be elected to such Boards at each meeting of their
respective stockholders at which the class of Directors to which the
Executive is assigned is to be elected, and further, to favorably vote
the respective shares towards the election of the Executive to serve as
Chairman of the Boards and Chairman of the Executive Committees, if
any, of the Boards of SFC and WSC.
(b) NUC and the Executive agree that the Board of
Directors of the Companies shall consist of at least seven (7) members
each to
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have the same individuals for both Companies. NUC shall have
the right to nominate and elect five (5) of the seven (7) Directors for
both Companies and the Executive shall have the right to be a Director
of both Companies; another Director shall be Dan L. Kirby. NUC agrees
to vote all its shares of SFC in favor of the election of the Executive
to the SFC Board and SFC agrees to vote all its shares of WSC in favor
of the election of the Executive to the WSC Board, and the Executive
agrees to vote favorably for each of the NUC nominees.
(c) It is further-agreed that all NUC, SFC or WSC shares, directly
or indirectly, owned or controlled by EH or principals of EH or
their respective affiliates (of which EH has control) shall vote in
favor of the Executive in accordance with Article II, Sections B.3(a)
and (b) above.
(d) Notwithstanding the foregoing provisions of this Article II,
Section B.3, it shall not be considered a breach of this
Agreement by any party if (1) the Executive is removed as a Director of
either SFC, WSC or NUC, if applicable, as a result of the determination
by the Director of Insurance of South Dakota (or by any other Insurance
Department having jurisdiction over the Companies or any subsidiary or
affiliate) that the Executive must be removed or disqualified from
acting as a director of the Companies or NUC or (2) if the Executive is
terminated for "cause" as defined in Article VII, Section E. below.
C. Location of Services; Continuing Activities.
1. Location of Services. During the Employment Period, the
Executive's office shall be customary to his position and shall be located in
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the principal Executive offices of SFC and WSC, both of which
shall be located in Sioux Falls, South Dakota. In connection with his
employment by the Companies, the Executive shall not be required to
directly or indirectly relocate or transfer his principal residence
from Sioux Falls, South Dakota.
2. Continuing Activities. NUC and the Companies acknowledge that
the Executive will continue to expend such employment and working time
in such civic, political, philanthropic, recreational, social and
promotional activities as is commensurate with the past practice
between the Executive and the Companies ("Continuing Activities").
The Executive shall continue to devote such time to duties hereunder,
other than Continuing Activities, as he now devotes to such duties and
as is commensurate with the past practice between the Executive and the
Companies.
ARTICLE III: COMPENSATION AND OTHER BENEFITS DURING THE EMPLOYMENT
PERIOD.
A. Basic Salary; Annual Review. During the Employment Period,
the Company shall pay to the Executive, and the Executive shall accept for his
services, a minimum basic annual aggregate salary of Two Hundred Fifty Thousand
Dollars ($250,000) ("Basic Salary") payable in accordance with the Company's
customary payroll policy in effect from time to time. The Company, through its
Board of Directors, reserves the right at any time, from time to time, to
increase the Basic Salary and agrees that it shall annually confer with the
Executive in good faith and review the Basic Salary to be paid to the Executive
for the then fiscal year and yearly thereafter with a view to increasing (but
not decreasing) the Basic Salary based upon the performance of the Executive in
relationship to the goals and performance of the Companies and prevailing
business and competitive conditions.
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To the extent that the Executive's Basic Salary is increased, the new amount
will become known as such New Basic Salary and shall not thereafter be reduced.
The Basic Salary and New Basic Salary to the Executive exclude any
bonus or other employee benefits or perquisites to which the Executive is
entitled and, when adjusting the Executive's salary, the Board or any other
body or group of persons responsible for setting the Executive's salary shall
not take into consideration the value of any bonuses, Incentive Bonus
Compensation, employee benefits or other perquisites to the Executive. The
Companies' obligation to pay the Executive the Basic Salary or any New Basic
Salary during the Employment Period may be extinguished only upon a termination
of the Executive's employment pursuant and subject to the provisions of
Articles VI and VII below.
B. Incentive Bonus Compensation. In addition to Basic Salary or
New Basic Salary, the Company agrees to pay to the Executive an amount
determined pursuant to the following formula based upon the Premiums Earned for
each of fiscal year of the Companies while this Agreement is in effect, or in
the event this Agreement is terminated prior to the end of any fiscal year, an
amount determined pursuant to the following formula based upon the Premiums
Earned for such year multiplied by a fraction, the numerator of which is the
number of days during such fiscal year in which this Agreement was in force and
effect and the denominator of which is 365 ("Incentive Bonus Compensation"), as
follows:
If Premiums Earned are equal to or exceed $50,000,000, the Incentive
Bonus Compensation shall be two and one half percent (2 1/2%) of total
Premiums Earned in excess of $50,000,000 provided that Incentive Bonus
Compensation payable hereunder shall not exceed the total amount of Two
Hundred Fifty Thousand Dollars ($250,000) or pro-rata portion thereof in any
fiscal year unless otherwise increased by the Board of Directors of the
applicable Company or Companies.
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As used herein "Premiums Earned" shall have the meaning given those
terms in the Company's (WSC) Statutory Financial Statements ("Financial
Statements") audited by the firm of Independent Certified Public Accountants
then regularly employed by the Company consistent with the accounting
principals used in preparing such Financial Statements of the Company for the
year ended December 31, 1991 plus the premiums earned by any corporation or
other entity controlled by, or under direct or indirect common control of NUC
("Affiliate(s)") or the Companies from the sale of the types of insurance
policies, bonds or other insurance products for which any Company received
premium payments in the fiscal year ending December 31, 1991.
The Company shall furnish to the Executive the Financial Statements
for each fiscal year of the Company and each Affiliate during which this
Agreement is in effect (in whole or in part) within 120 days following the end
of each such fiscal year.
Any Incentive Bonus Compensation for each fiscal year of the Company
shall be determined in the last month of the fiscal year (December) and paid to
the Executive in a lump sum as the Board of Directors determine but no later
than the thirtieth (30th) day after the close of the fiscal year.
C. Vacations, Etc. The Executive shall be entitled to paid
annual vacation time commensurate with the past practices of the Executive and
the Companies. The Executive shall also be entitled to be paid holidays and
sick days given or allowed by the Companies to its senior executive officers.
D. Perquisites and Other Fringe Benefits. In addition to any and
all other benefits, vacation, Basic Salary, New Basic Salary, and Incentive
Bonus Compensation provided to the Executive hereunder, in accordance with the
past practices between
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the Executive and the Companies the Companies shall continue to provide the
Executive with such additional benefits and perquisites previously provided to
him by the Companies (including, without limitation, participation in any
fringe or employee benefit program provided generally to senior executive
officers of the Companies, or otherwise presently provided to the Executive,
and medical, life and disability insurance, first class travel and
accommodations, sick pay plans, and payment or reimbursement for monthly
membership dues and other expenses in furtherance of the Company's business).
E. General Expenses. The Companies shall reimburse the Executive
for all out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder upon the presentation of appropriate
documentation therefor in accordance with the past practice between the
Companies and the Executive.
ARTICLE IV: STOCK OPTIONS.
NUC, in accordance with the terms and provisions of the Nucorp, Inc.
1990 Stock Option Plan (the "1990 Plan") which is incorporated by reference
herein, hereby grants to the Executive options to purchase 50,000 shares of NUC
common stock under the terms of the Non-qualified Stock Option Plan referred to
in the 1990 Plan at a base price equal to the lower of (a) the average trading
price of NUC common stock on the date hereof, and (b) the average trading price
of NUC common stock for the 17-week immediately following the date hereof.
The stock option period shall be for a period of ten (10) years and
may be exercisable in whole or in part from time to time on or before the tenth
(10th) anniversary of the effective date of the stock option. NUC, at its sole
expense, agrees to register, in accordance with the Securities Act of 1933, as
amended (the "Act"), or any similar Federal statute and any applicable states
securities laws, all
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shares subject to the 1990 plan within two years of the effective date of the
1990 plan. NUC further agrees that should it cause to register any of its
shares for any reason whatsoever during this two-year period, NUC, in a
simultaneous manner, will also register shares subject to the 1990 plan.
ARTICLE V: NOTICE OF BREACH.
The Companies and the Executive agree that, prior to the termination
of the Employment Period by reason of "cause" (as hereinafter defined) or any
breach of any provisions of the Agreement, the injured party will give the
other party or parties written notice ("Notified Party") specifying such breach
or cause and permitting the Notified Party to cure such breach or cause within
the period of thirty (30) days after receipt of such notice.
ARTICLE VI: INABILITY TO PERFORM (DISABILITY).
If, during the Employment Period, the Executive shall be unable to
substantially perform the duties required of him pursuant to his employment due
to any disability preventing him from performing such services for a period of
six (6) cumulative months in a twelve consecutive month period, the Companies
shall have the right to terminate the Executive's employment pursuant to this
Agreement on thirty (30) days' advance written notice, at the end of which time
the Executive's employment shall be terminated. As used in this Agreement, the
term "disability" shall mean the substantial inability of the Executive to
perform his duties as described under this Agreement as determined by an
independent physician selected by the Companies with the approval of the
Executive. Any disability of less than six cumulative months duration shall
not be cause for interruption, suspension or withholding of the salary or other
remuneration or benefits due the Executive by the Companies. Until the
employment of the Executive is actually terminated, the
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Executive shall be entitled to receive his Basic Salary or New Basic Salary and
any other remuneration and benefits as provided for herein including, but not
limited to, a prorated portion of Incentive Bonus Compensation, if any.
ARTICLE VII: TERMINATION.
This Agreement:
A. may be terminated at any time by mutual agreement between the
Executive and the Companies;
B. shall terminate immediately upon the death of the Executive,
provided however, notwithstanding any provision to the contrary in this
Agreement, the Executive's estate shall be entitled to receive the prorated
portion of Incentive Bonus Compensation, if any, and the Basic Salary or New
Basic Salary due the Executive for a period of six (6) months following the
date the death of the Executive occurred;
C. may be terminated by either the Companies or the Executive due
to the disability of the Executive pursuant to Article VI hereof;
D. may be terminated upon a good faith determination by a
majority vote of the Board of SFC or WSC that the termination of this Agreement
is necessary by reason of a final determination by the Director of Insurance of
the State of South Dakota (or by any other insurance department having
jurisdiction over SFC or WSC or any subsidiary or affiliate) that the Executive
must be removed or disqualified from acting as an officer of SFC or WSC; or
E. may be terminated by the Companies at any time for "cause"
determined by a majority vote of the Boards of SFC or WSC upon the giving of
notice to the Executive in accordance with Article V of this Agreement setting
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forth the basis of such termination. For the purposes of this Agreement, the
term "cause" shall be limited to:
(a) the engaging of the Executive in conduct materially injurious
to the Companies unless the Executive engaged in such conduct (i) in
good faith and reasonably believed such conduct to be in or not opposed to
the best interests of the Company(s) or (ii) at the request or direction of
the Board of Directors of the Company(s);
(b) continued and wilful inattention and neglect by the Executive
of the material duties to be performed by him, (other than by reason of
illness or engaging in activities otherwise permitted or required under
this Agreement) and which inattention and neglect, after compliance with
the provisions of Article V hereof, does not cease within thirty (30) days
after written notice thereof specifying the details of such conduct is
given to the Executive; and
(c) the conviction of the Executive of a felony under state or
federal law.
Notwithstanding the foregoing, no termination of this Agreement shall
diminish or effect in any way NUC's obligation to repurchase and/or register
shares of common stock (and any other securities of the Companies received with
respect thereto) pursuant to Article IV hereof.
ARTICLE VIII: EFFECTIVE OR DEEMED TERMINATION.
A. Termination by Executive for Good Reason. The Executive's
obligation to render services hereunder may be terminated by the Executive if
the Executive's "circumstances of employment shall have changed" (as
hereinafter defined), such termination to be known also as "termination for
good reason". In such event the
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Executive shall specify by written notice to NUC and/or the Companies the event
or reason relied on for such termination, and if such event or reason shall not
have been cured within 30 days thereafter, the Executive's employment hereunder
shall be deemed terminated ("Effective Termination Date").
B. The Executive's "circumstances of employment shall have
changed" shall mean and include, but shall not necessarily be limited to, any
of the following:
1. Notice by the Board of the Directors of the Companies
to the Executive of termination of his employment, this Agreement or
the Employment Period for any reason whatsoever, other than pursuant
to Articles VI or VII;
2. failure of NUC and/or the Companies to nominate and
vote for the Executive and his designee in the positions all as
provided in Article 11, Section B above;
3. reduction in the Basic Salary or New Basic Salary
then being paid to the Executive by the Companies, or withdrawal from
him of fringe benefits or perquisites (including participation in
current or future stock option or stock appreciation plans) provided
to him under this Agreement or otherwise available to other senior
corporate officers of the Companies;
4. a change in the Executive's place of employment
without his written consent as above described in Article II, Section
C.1 above, or requirements or demands of the Executive to perform
services which would make the continuance of his principal residence
and home life in Sioux Falls, South Dakota unreasonably difficult or
inconvenient for him, and/or which would materially restrict or reduce
the Executive's participation in Continuing Activities;
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5. the termination or discharge of a material number of
employees (5% of the employees located in the Sioux Falls, S.D.
office of the Companies in any calendar year) of the Companies if (a)
the positions of such terminated or discharged employees are to be
filled by persons who are employed by any of NUC, EH or any of their
affiliates, or (b) such terminations are due to the relocation of the
employees' positions outside of the Sioux Falls, South Dakota area, or
(c) such terminations are not in connection with a general reduction
of the number of employees of WSC or SFC due to a significant economic
downturn in the Business of WSC and SFC; or (ii) the relocation of a
significant portion of the operations of the Business of the Companies
which are currently conducted in Sioux Falls, South Dakota to any
other location, provided, however, the foregoing shall not be deemed
to prevent the termination of an employee for cause due to such
employee's lack of performance;
6. a material increase in the time the Executive is
required to spend in travel for the Companies which requires overnight
stays away from Sioux Falls, South Dakota, other than quarterly
meetings of the Board of Directors of NUC;
7. failure of the Companies to make charitable donations
of at least $200,000 in each year of the term hereof to donees with
offices, facilities or programs located in South Dakota in accordance
with the past practice of the Companies; and
8. other material and adverse changes in the Executive's
conditions of employment imposed on him by NUC or the Companies or any
material breach by the Companies of the provisions of this Agreement,
after compliance with the provisions of Article V hereof.
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Obligations on Termination. In the event Executive's
employment under this Agreement terminates on or before , 1994,
for any reason other than "cause", death or the passing of the applicable
Expiration Date, the Executive shall be entitled to receive all payments and
other benefits provided to him under this Agreement (including, without
limitation, Basic or New Basic Salary and Incentive Bonus Compensation and
amounts pursuant to Article VI) for a period equal to the remaining term of the
Agreement up to , 1994. Executive shall also be entitled to
remove from personal office all computer equipment, all personal computer files
not essential to the business, all other personal files, books, memorabilia
related to Company/Kirby family history, and all other personal items.
ARTICLE IX: INDEMNIFICATION.
Each of NUC, SFC and WSC will indemnify, defend and hold harmless the
Executive (and his personal or legal representatives or other successors) to
the fullest extent permitted by the laws of their respective states and their
existing certificates of incorporation and by-laws, and the Executive shall be
entitled to the protection of all insurance policies which NUC and the
Companies may acquire and maintain generally for the benefit of their directors
and officers, against all costs, charges and expenses (including, but not
limited to, attorneys' fees and other legal expenses) whatsoever incurred or
sustained by the Executive or his personal or legal representatives in
connection with any action, suit or proceeding to which he (or his personal or
legal representatives or other successors) may be made a party by reason of
his being or having been a director, employee or officer of NUC, SFC or WSC
and their respective subsidiaries and affiliates. If the existing
certificates of incorporation and by-laws of NUC and the Companies do not
provide for indemnity
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of the Executive to the fullest extent permitted by the laws of their
respective states of domicile, NUC and the Companies will use their diligent
best efforts to amend such certificates of incorporation and/or by-laws so as
to provide maximum indemnification.
ARTICLE X: NO DUTY TO MITIGATE/NO REDUCTIONS.
A. The parties agree that the Executive shall not be under any
duty to mitigate damages under this Agreement and such defense shall not be
interposed in any legal proceedings among the parties. In furtherance
thereof, it is expressly agreed that if the Executive's employment is
terminated pursuant to this Agreement in a manner which results in the
Executive being entitled to additional payments or benefits hereunder, such
additional payments or benefits shall not be reduced by any amounts or benefits
he could have earned or by any payments or benefits actually earned or received
from parties other than the Companies.
ARTICLE XI: JURISDICTION AND VENUE.
Without limitation of the arbitration rights specified in Article XXII
below, the parties hereby irrevocably consent to the personal jurisdiction of
and the propriety of venue of arbitrators and in the courts located in the City
of Chicago, State of Illinois and of any federal court located in Chicago in
connection with any permitted action or proceeding arising out of or relating
to this Agreement, any document or instrument delivered pursuant to, in
connection with, or simultaneously with this Agreement, or a breach of this
Agreement or any such document or instrument.
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ARTICLE XII: LAW.
Subject to and without limitation of the provisions of Articles XI and
XXII hereof, this Agreement shall be governed by and construed in accordance
with the conflict laws of the State of Illinois
ARTICLE XIII: NOTICES.
All notices hereunder shall be in writing and shall be either (A) sent
by registered or certified mail, return receipt requested, or (B) overnight
delivery or courier, or (C) by "Fax", telex, telecopier or other
telecommunication device capable of creating a legible written record (and
promptly confirmed in writing), or (D) served by personal service. If intended
for NUC or the Companies, such notices shall be addressed to such party,
attention of its Chairman of the Board at either NUC's or the Companies' most
current address for their respective executive offices, or at such other
address of which NUC or the Companies shall have given notice to the Executive
in the manner herein provided with a copy to Sheli Z. Rosenberg, Rosenberg &
Liebentritt, P.C., 2 North Riverside Plaza, Chicago, Illinois; and if intended
for the Executive, shall be addressed him at 2021 Austin Drive, Sioux Falls,
South Dakota 57105 with a copy to Rudnick & Wolfe, 203 North LaSalle Street,
Chicago, Illinois, Attention: J. Marks and L. Robins, or at such other address
of which the Executive shall have given notice to NUC or the Companies in the
manner herein provided. Personal service of notices may be substituted for
mailing provided a written acknowledgement of such service is provided by the
recipient. For purposes of this Article XIII, notice shall be deemed received
upon actual receipt.
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ARTICLE XIV: ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding among the parties
with respect to the matters referred to herein and no waiver or modification to
the terms hereof shall be valid unless in writing signed by the party to be
charged and only to the extent therein set forth. All prior and
contemporaneous agreements and understandings between the parties with respect
to the subject matter of this Agreement are superseded by this Agreement,
unless otherwise provided in any separate writing signed by the parties hereto.
ARTICLE XV: COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
ARTICLE XVI: SEVERABILITY.
If any provision in this Agreement is invalid, illegal or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
ARTICLE XVII: BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and any successor to NUC or the Companies whether by merger,
liquidation, sale of assets, reorganization or otherwise and to the heirs, and
personal or legal representatives of the Executive.
ARTICLE XVIII: WITHHOLDING.
NUC and the Companies shall be entitled to withhold from amounts
payable to the Executive hereunder such amount as may be required by applicable
law.
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ARTICLE XIX: ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the parties hereto, other than in
accordance with the provisions hereof, without the prior written consent of the
other applicable parties.
ARTICLE XX: EFFECT OF WAIVER.
The waiver of either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach thereof.
ARTICLE XXI: HEADINGS.
The headings contained in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
ARTICLE XXII: ARBITRATION.
If any dispute, claim or controversy shall arise between the parties
hereto as to any issue whatsoever, other than the determination of disability,
the same shall be referred to and settled by the following "arbitration"
procedure which may be requested upon the application of any interested party:
It is agreed the arbitration hearings, if any, shall be held solely in Chicago,
Illinois, and any such dispute, claim or controversy shall be referred to and
settled by such arbitration in accordance with the Commercial Arbitration Rules
("Rules") of the American Arbitration Association ("AAA") then in effect (which
Rules are incorporated herein by reference as through set forth at length
herein) and any decision or order or finding rendered by the arbitrator or
arbitrators ("arbitrators") appointed in accordance with such Rules shall be
final and conclusive upon the parties hereto and judgment upon the award,
finding or decision rendered may be entered in the Court of the forum, state or
federal, having jurisdiction, as provided In Article XI above. It is expressly
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agreed between the parties hereto that whether or not the Rules of the AAA
shall provide for a discovery procedure, such discovery procedure is hereby
granted and permitted in the said arbitration proceedings and the parties may
apply to the arbitrators for the enforcement of any form of discovery which
would be permitted by the laws of the State of Illinois and their award or
decision in respect of such discovery shall be final and binding.
The arbitrators, if they deem that the matter requires it, are
authorized to award to the party whose contention is sustained such sums as
they or a majority of them shall deem proper to compensate it or him for the
time and expense incident to the proceedings and, if the arbitration was
demanded without reasonable cause, then they may also award damages for delay,
if any. The arbitrators shall determine their own reasonable compensation in
accordance with such AAA Rules, and, unless otherwise provided by agreement,
shall assess the cost and charges of the proceedings equally to both parties
unless the arbitrators shall find an issue raised by either party was
unreasonable or frivolous and that therefore the costs of the arbitration or
any portion thereof shall be borne by the said party.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
NUCORP, INC., a Delaware corporation
By: Arthur A. Greenberg
- --------------------------- ----------------------------------
Witness Its Vice President
("NUC")
SUREWEST FINANCIAL CORP., a South
Dakota corporation
By: Dan L. Kirby
- --------------------------- -----------------------------------
Witness Its Vice President
("SFC")
WESTERN SURETY COMPANY, a South
Dakota corporation
By: Dan L. Kirby
- --------------------------- -----------------------------------
Witness Its Vice President
("WSC")
EQUITY HOLDINGS, an Illinois partner-
ship
By: Arthur A. Greenberg, Trustee
- --------------------------- -----------------------------------
Witness A duly authorized Partner or other
representative solely as to the
obligations under Article II B3
("EH")
JOE P. KIRBY
- --------------------------- --------------------------------------
Witness JOE P. KIRBY
(the "Executive")
SI ACQUISITION CORP., a Texas
corporation
By: Arthur A. Greenberg
- --------------------------- ----------------------------------
Witness Its Vice President
21