EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered in
between Freedom Financial Group, Inc., a Delaware corporation (hereinafter
“Company”) and Xxxxxx X. Xxxxxxxxxxxx of Springfield, Missouri, (hereinafter
“Employee”) and on this 16th day of December, 2008, agree as
follows:
WITNESSETH:
WHEREAS, Employee is presently
President of Company;
WHEREAS, Employee is presently
employed under an Employment Agreement dated the 16th day of
August, 2007, and ending January 9, 2009;
WHEREAS, Company and Employee
desire to enter into a new agreement for employment of Employee for a period
beginning on December 1, 2008, and ending November 30, 2011, and thereby
rescinding the Employment Agreement dated August 16, 2007;
NOW, THEREFORE, in
consideration of the covenants and agreements as hereinafter set forth, the
parties agree as follows:
1. Employment. Subject
to the terms and conditions of this Agreement, effective as of December 1, 2008,
the date of this Agreement, the Company hereby employs Employee to perform the
duties described in Section 4 hereof.
2. Term of
the Agreement. The term of this Agreement is for a period
beginning on December 1, 2008 (the “Effective Date”) and ending November 30,
2011, subject to earlier termination as provided herein. Employee
agrees that this Agreement supersedes and replaces his Employment Agreement
dated August 16, 2007, as amended, and extended.
3. Compensation
of Employee:
(a) Base Compensation:
Employee will be paid an annual base salary of $200,000.00 a year, payable
in equal bi-weekly payments which shall be made on the same day and date as
other employees of Company are paid, and prorated for any partial pay
period. Annual compensation of $200,000.00 is gross
compensation. Employee’s base salary is subject to annual review by
the Board of Directors of the Company. Company will deduct therefrom
the normal and usual deductions for taxes, insurance and deductions of a similar
nature.
(b) Incentive
Compensation: In addition to Base
Compensation, Employee will be entitled to receive the incentive compensation
provided in the Management Compensation Plan adopted effective April 9, 2008, as
amended.
4. Duties of
Employee. Employee shall, during the term hereof, have the
title of President of the Company, and shall perform such duties as and have
such authority as are customary and usual for such position. Without
limiting the generality of the foregoing:
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(a) Full Time. Employee
shall devote Employee’s full working time during regular and normal business
hours to the business of the Company and shall, in accordance with professional
standards generally observed by senior management of the Company, seek to
maximize the financial success of the Company’s business and to optimize the
goodwill and reputation of the Company within its industry and with its
customers. Nothing contained herein shall be construed to prohibit
Employee from engaging in other businesses so long as such business does not
compete with the business of the Company or conflict with the Employee’s duties
hereunder;
(b) Reporting. Employee
shall report to the Board of Directors of the Company.
5. Expenses. Employee
will be authorized to incur reasonable and necessary expenses in connection with
the discharge of Employee’s duties and in promoting the business of the
Company. The Company, according to its usual practices, will
reimburse Employee for all such reasonable and necessary expenses upon
presentation of a properly itemized account of such expenditures, setting forth
the business reasons for such expenditures.
6. Other
Benefits. Employee shall be
entitled to pension, profit sharing and fringe benefits, such as
hospitalization, medical, life and other insurance benefits, sick pay and
short-term disability, and paid time off including vacation, as are provided for
other management employees of the Company and approved by the Board of Directors
of the Company (the “Fringe Benefits”). Employee acknowledges that
the Company shall have the right to change the Fringe Benefits from time to
time, and such changes shall not be deemed a termination of employment by the
Company.
7. Termination
by the Company Due to Death, Disability, Cause or Other.
(a) Death,
Disability. In the event of Employee’s death during the Term,
this Agreement and the employment of Employee hereunder shall terminate
automatically as of the date of death, except that Sections 9, 10, 11, 12, 13,
14, 15, and 16 shall survive such termination. In the event of
Employee’s Disability (as hereinafter defined) for ninety (90) consecutive
calendar days or one hundred and twenty (120) calendar days in the aggregate
during any consecutive twelve (12) months of the Term, the Company shall have
the right, by written notice to Employee, to terminate this Agreement and the
employment of Employee hereunder as of the date of such notice, except that
Sections 9, 10, 11, 12, 13, 14, 15, and 16 shall survive such
termination. “Disability” for the purposes of this Agreement shall
mean Employee’s physical or mental disability so as to render Employee incapable
of carrying out substantially all of Employee’s duties under this
Agreement. In the event of termination pursuant to this subsection
(a), the Company shall not be under any further obligation to Employee hereunder
except to pay Employee (or Employee’s estate) within thirty (30) days of such
termination (i) salary, declared bonuses and benefits (including paid time off
pay) accrued and payable up to the date of termination, (ii) reimbursement for
expenses accrued and payable under Section 5 hereof through the date of
termination.
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(b) Cause. The Company
shall have the right to discharge Employee and terminate this Agreement for
Cause (as hereinafter defined) by written notice to Employee and this Agreement
shall be deemed terminated as of the date of such notice, except that Sections
9, 10, 11, 12, 13, 14, 15, and 16 shall survive such termination. For
the purpose of this Agreement, “Cause” shall mean (i) conviction of, or a plea
of nolo contendere to, a felony, (ii) substantial neglect, substantial
misconduct or substantial failure (including conflict of interest) in the
carrying out of Employee’s duties in accordance with Section 4 hereof, (iii) the
engaging by Employee in a material act or acts of dishonesty adversely affecting
the Company, any affiliate or any client of the Company, or (iv) habitual
drunkenness or the illegal use of drugs by Employee. In the event of
a termination pursuant to this subsection (b), the Company shall not be under
any further obligation to Employee hereunder, except to pay Employee within
thirty (30) days of such termination (i) salary, declared bonuses and benefits
(including paid time off pay) accrued and payable up to the date of termination,
and (ii) reimbursement for expenses accrued and payable under Section 5 hereof
through the date of termination.
(c) Termination by the Company Other Than
Due to Death, Disability or Cause. This Agreement and the
employment of Employee hereunder may be terminated by the Company other than
pursuant to subsection (a) or subsection (b) by giving thirty (30) days prior
written notice to the Employee at any time, and such termination shall be
effective as of the date of termination stated in such notice, except that
Sections 9, 10, 11, 12, 13, 14, 15, and 16 shall survive such
termination. In the event of a termination pursuant to this
subsection (c), the Company shall not be under any further obligation to
Employee hereunder, except to pay Employee within thirty (30)
days of such termination (i) salary, declared bonuses and benefits (including
paid time off pay) accrued and payable up to the date of termination, (ii)
reimbursement for expenses accrued and payable under Section 5 hereof through
the date of termination, and (iii) Severance Benefits as defined
below.
(d) Severance
Benefits. For purposes of this Agreement, “Severance Benefits”
shall mean (i) The sum of $ 5,000.00 a month (Severance Base Salary) for each
month that remains under the term of this agreement, which shall be payable to
Employee on the first day of each month beginning with the first month following
the month in which the employee was terminated; with the month in which the
employee is terminated being pro-rated; and (ii) continuation of all of
Employee’s Fringe Benefits, except vacation pay, for the remaining term of this
Agreement. To the extent any of the Fringe Benefits are not readily
available to the Employee following termination of employment, the monthly cost
thereof, except vacation pay, incurred by Company prior to
termination shall be paid to Employee at the same time as the Severance Base
Salary.
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8. Termination
by the Employee. The Employee shall have the right to
terminate Employee’s employment under this Agreement by giving ninety (90) days
prior written notice to the Company at any time, and such termination shall be
effective as of the date of termination stated in such notice, provided that the
Company may elect to accelerate the date of termination. Sections 9, 10, 11, 12,
13, 14, 15 and 16 shall survive such termination. In the event
Employee terminates employment under this Section 9, the Company shall not be
under any further obligation to Employee hereunder, except to promptly pay
Employee (a) salary, declared bonuses and benefits (including vacation pay)
accrued and payable up to the date of termination, and (b) reimbursement for
expenses accrued and payable under Section 5 hereof through the date of
termination.
9. Non-Disclosure. Employee
agrees that during and after the expiration of the Term, any confidential
information concerning the Company or its businesses, or customers of the
Company (including, without limitation, trade secrets, plans, processes,
customer lists, customer names and all other information relating to customers,
price lists, pricing policies, any and all financial information, employee
lists, prospect lists, contracts and compilations of information, records and
specifications) which comes to Employee in the course of Employee’s employment
and which is not (independent of disclosure by Employee) public knowledge or
general knowledge in the trade, shall remain confidential and, except as
required by legal process, may not be used or made available for any purpose
except as necessary in the performance of Employee’s duties
hereunder. Employee agrees that, upon termination of Employee’s
employment hereunder, Employee will promptly deliver to the Company all
materials constituting confidential information (including all copies thereof
that are in the possession of, or under the control of, the Employee), and
Employee will not make or retain any copies or extracts of such materials in any
form.
10. Governing
Law and Choice of Venue. This Agreement shall be governed by
and interpreted in accordance with the laws of the State of
Missouri. Unless arbitration is required, the parties hereto agree to
submit to the jurisdiction of the courts of Missouri for the purposes of
enforcement of this Agreement or any action that may arise relating to the
employment relationship or the enforcement of this Agreement between Employee
and Company. The parties further agree that any such action must be
brought in a court of competent jurisdiction sitting in the State of
Missouri.
11. Severability. Each
of the sections contained in this Agreement shall be enforceable independently
of every other section in this Agreement, and the invalidity or unenforceability
of any section shall not invalidate or render unenforceable any other section
contained in this Agreement. Employee acknowledges that the restrictive
covenants contained in this Agreement are a condition of this Agreement and are
reasonable and valid in all respects. If any court determines that
any of the covenants contained herein, or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion.
12. Survival
of Certain Provisions. Any termination or expiration of this
Agreement or suspension or termination of Employee's employment by Company
notwithstanding, the provisions of this Agreement that are intended to continue
and survive shall so continue and survive. This Agreement and all rights
hereunder shall inure to the benefit of the parties hereto and to their
respective heirs, assigns, and legal representatives.
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13. Cumulative
Remedies and Fees. All rights and remedies of both parties
shall be cumulative and each party shall have the right to obtain specific
performance against the other for the enforcement of this
Agreement. Each party shall pay their own attorney fees and expenses
in any proceeding commenced under this Agreement.
14. Equitable
Relief. Employee acknowledges that, due to the unique nature
of the Confidential Information, Inventions, and Work Product, there may be no
adequate remedy at law for any breach of the obligations hereunder, and that any
such breach may allow Employee or third parties to unfairly compete with
Company. For that reason, it is mutually agreed that upon any such
breach or any threat thereof, Company shall be entitled to seek appropriate
equitable relief in addition to whatever remedies it might have at law in
connection with any breach or enforcement of Employee’s obligations hereunder or
the unauthorized use or release of any Confidential Information, Inventions, or
Work Product. Employee will notify Company in writing immediately
upon the occurrence of any such unauthorized release or other breach of which
Employee becomes aware.
15. Mediation
and Arbitration. The parties agree that any dispute or claim
arising out of or relating to this Agreement or any termination of the
Employee’s employment, shall be settled by mediation or by final and binding
arbitration in accordance with the Employment Arbitration Rules and Mediation
Procedures of the American Arbitration Association ("AAA"). Judgment
upon any award entered in the arbitration proceeding may be entered in any court
having jurisdiction thereof. Mediation and arbitration proceedings
shall be private and confidential. Any dispute regarding the
enforcement or interpretation of this Agreement shall be first submitted to
mediation, and, if mediation is unsuccessful, to arbitration. The
mediation and the arbitration shall be in accordance with the Employment
Arbitration Rules and Mediation Procedures of the AAA.
The arbitration shall take place in
Springfield, Missouri. All costs and expenses of the arbitration
(e.g. arbitrator's fee) shall be borne equally by the parties. Each
party shall pay their own attorney's fees and litigation expenses and all other
costs and expenses they incur arising out of or related to the
arbitration.
16. Prior
Agreements and Amendments. Employee hereby acknowledges
receipt of a signed counterpart of this Agreement and acknowledges that it is
Employee’s entire agreement with Company concerning the subject matter, thereby
canceling, terminating and superseding any previous oral or written
understandings or agreements with Company or any officer or representative of
Company. No amendment or modification of this Agreement shall be
valid or binding upon Company unless made in writing, approved by the Board of
Directors of the Company and signed by an officer of Company. No
amendment or modification of this Agreement shall be valid or binding upon
Employee unless made in writing and signed by him.
17. Waiver. Employee’s or
Company’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
Employee or Company may have hereunder shall not be deemed to be a waiver or
subsequent breach of such provision or right or any other provision or right of
this Agreement.
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18. Notices. Any notice
required by this Agreement or given in connection with it, shall be in writing
and shall be given to the appropriate party by personal delivery, or by
certified mail, postage prepaid, or recognized overnight delivery
service.
If to
Company:
Freedom
Financial Group, Inc.
0000 Xxxx
Xxx Xx.
Xxxxxxxxxxx,
XX 00000
If to
Employee:
Xxxxxx X.
Xxxxxxxxxxxx
_________________
_________________
WE
UNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
CAN BE ENFORCED BY THE PARTIES.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement under seal as of
the day and year first above written.
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COMPANY:
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FREEDOM
FINANCIAL GROUP, INC.
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a
Delaware corporation
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By:
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/s/Xxxxxx Xxxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxxx
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Title:
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Chairman
– Compensation Committee
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EMPLOYEE:
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/s/Xxxxxx X. Xxxxxxxxxxxx
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Xxxxxx
X.
Xxxxxxxxxxxx
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