EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (this "
Agreement") is entered into this 1st day of April 2009 and is by and
between Xxxxxxxxxxx X. Xxxxxxx (“Executive”) and Ideal
Financial Solutions, Inc., a Nevada corporation (“Employer”). Executive
and Employer are collectively referred to herein sometimes as the “Parties.”
R
E C I T A L S:
WHEREAS, Employer’s board of
directors (the “Board”)
desires to employ Executive in an executive capacity and the Executive desires
to be employed in such capacity.
NOW THEREFORE, in
consideration of the mutual covenants and conditions hereinafter set forth and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
ARTICLE
I
Term
1.1 Employment. Employer employs
Executive and Executive accepts employment under the terms and conditions of
this Agreement. Executive shall provide the services required hereunder at
Employer’s corporate office.
1.2 Term. The term of this
Agreement is perpetual and Employee may be terminated only as provided for
herein.
ARTICLE
II
Compensation
2.1 Compensation. For all services
rendered by Executive, Employer shall pay Executive the salary of $150,000 per
year, commencing on April 1, 2009. If Employer is unable to pay the
full amount of compensation hereunder, it shall accrue the same and pay it to
Employee when it is fiscally able to pay the same. Employer shall deduct
federal, state withholding taxes and all other applicable and required
taxes.
The
Parties agree that Executive’s compensation will not exceed $120,000 per annum
until Employer achieves profitability for one month or is otherwise sufficiently
capitalized so that it is fiscally able to pay such salary. To
compensate for Employer’s financial inability to pay Executive’s full salary at
the time this Agreement is executed, Executive will receive an option to
purchase 15,000 shares of Employer’s common stock for each two-week pay period
of reduced salary (the “Interim
Option Plan”). Once profitability for one month or capitalization is
achieved Executive’s will begin to receive his agreed upon
salary. The Interim Option Plan will terminate once Executive begins
to receive his full salary hereunder.
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A. Salary
Adjustment. Employer and Executive agree to review Employee’s salary
bi-annually to determine whether an adjustment should be made or not; and agree
to review the same bi-annually.
2.2 Automobile
Allowance. Executive shall
be entitled to a net (after tax) automobile allowance of $400 per month,
commencing when the Board determines that Employer is financially able to pay
such allowance. Unpaid car allowance shall not accrue. Employer shall also pay
Executive’s cell phone, automobile insurance and reasonable maintenance, also
commencing when the Board determines that Employer is financially able to pay
such allowances.
2.3 Bonus
Pools. Executive
will be entitled to participate in any and all executive bonus pools (whether
comprised of cash, stock or cash and stock) that Employer offers to its
executives.
2.4 Executive
Benefits. In
addition to the foregoing, Executive shall be entitled to the following
benefits:
A. Expenses. Executive may
incur reasonable expenses for promoting Employer's business, including expenses
for entertainment, travel and similar items. Employer will reimburse
Executive for all such reasonable expenses upon Executive's presentation of an
itemized account of such expenditures.
B. Vacations. Executive shall
be entitled each year to fifteen (20) days per year plus all holidays recognized
by Employer.
C. Health
and Life Insurance.
Executive and his family shall be entitled to receive health and life
insurance benefits. Employer shall pay all premiums associated with such
insurance benefits.
ARTICLE
III
Duties of
Executive
3.1 Duties. Executive is
engaged as Employer’s President and shall have authority over decision-making
and managerial duties regarding all Employer’s business
operations pertaining thereto according to business plans and strategies
provided by Employer, reporting only to the Chief Executive Officer or the Board
of Directors. The precise services of Executive may be extended or amended by
mutual agreement of Employer and Executive from time to time.
3.2 Extent of
Services. Executive shall
devote so much of his productive time, ability and attention to the financial
business of the Company as is necessary to fulfill his duties, and shall perform
all such duties in a professional, ethical and businesslike
manner. Executive will not, either during the term of this Agreement
and for a period of twelve (12) months thereafter, directly or indirectly engage
in any other business, either as an Executive, employer, consultant, principal,
officer, director, advisor, or in any other business capacity, which is
competitive with the business of the Company, without the express written
consent of the Company.
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3.3 Engaging
in Other Employment. Executive hereby
agrees to undertake the responsibilities for and devote his productive time,
abilities, and attention to the business of Employer during the term of this
Agreement.
3.4 Regulations. Executive agrees
to comply with all federal, state and local laws, ordinances, and regulations in
the conduct of his business on behalf of Employer.
3.5 Executive
as a Shareholder of Employer. Employer
recognizes that Executive is a shareholder of Employer. Executive may
be issued shares of common stock of Employer in the future as a result of a
purchase or bonus (“Executive’s
Shares”). Employee is also a member of Employer’s board of
directors.
3.6 Accountability. Executive shall
be directly responsible solely to Employer’s Board of Directors.
ARTICLE
IV
Duties of
Employer
4.1 Payment
of Compensation and Provision of Benefits. During the term
hereof, Employer agrees to pay all compensation, benefits, allowances and
vacation due Executive as set forth herein.
4.2 Working
Facilities. Employer shall
provide offices, accounting help and such other facilities and services as are
suitable to his position and appropriate for the performance of his
duties.
ARTICLE
V
Disability; Death During
Employment
5.1 Disability. If Executive is
unable to perform his services by reason of illness or incapacity for a period
of more than one (1) month, the compensation thereafter payable to him during
the continued period of such illness or incapacity for a period not to exceed
sic (6) months shall be sixty percent (60%) of Executive’s then existing salary.
Executive’s full compensation shall be reinstated upon his recovery. Notwithstanding anything to
the contrary,
Employer may terminate this Agreement at any time after Executive shall be
absent from his employment, for whatever cause, for a continuous period of more
than twelve (12) months, and the obligations of Employer shall thereupon
terminate. If it is determined, pursuant to the terms of this
Agreement, that Executive is disabled or incapacitated and cannot discharge the
duties and responsibilities contemplated hereunder, Employer shall have the
right to hire an Executive to replace him in whatever position he may have at
that time.
A. Disability
Insurance. In lieu of the
foregoing, Employer may obtain disability insurance for
Executive. Should this occur, paragraph 5.1 above shall be null and
void and the terms of said disability insurance shall govern, so long as the
terms in such policy are equal to or greater than the terms outlined in Section
5.1 above.
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ARTICLE
VI
Confidential Information;
Trade Secrets; Proprietary
Rights
6.1 Confidentiality. Executive
hereby acknowledges that he has received information regarding the business of
Employer, including but not limited to customer lists, product information,
business strategy, product and service pricing, executive agreements, all of
which are confidential information (the “Confidential
Information”). The Parties hereto recognize and acknowledge
that the Confidential Information is proprietary and integral to Employer’s
business and agrees to keep such Confidential Information confidential and not
disclose the same to any third person, corporation and/or entity for a period of
two (2) years subsequent to the termination of this Agreement or termination of
Executive as an Executive of Employer, whether such termination is with or
without cause.
ARTICLE
VII
Non-Competition
7.1 Non-Competition. During
Executive’s term of employment set forth in this Agreement, and for a period of
two (2) years thereafter, Executive will not directly or indirectly be an owner,
partner, director, manager, officer or Executive or otherwise render services or
be associated with any business that competes with Employer.
ARTICLE
VIII
Termination
8.1 Termination
With Cause.
Employer may terminate Executive with cause upon providing thirty (30) days’
advance written notice to Executive. Upon termination with cause, Executive
shall be entitled to cash compensation equal to three (3) month’s salary. For
purposes of this Agreement, termination “with cause” shall be for any of the
following:
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A.
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Any
breach of any material obligations owed to
Employer; or
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B.
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Conviction
of a felony or any act involving moral turpitude;
or
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C.
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Failure
to follows the directions of the CEO and/or Employer’s board of
directors.
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Upon
termination hereunder, Employee shall retain any and all of Employer’s stock he
holds at the time of termination.
8.2 Termination
Without Cause.
Employer may terminate Executive without cause upon providing thirty (30) days
advance written notice to Executive. Upon termination without cause by Employer,
Executive shall be entitled to cash compensation equal to six month’s
salary. In the event of termination without cause, all cash
compensation, as referred to above, shall be paid to Executive on a semi-monthly
basis. Upon termination hereunder, Employee shall retain any and all of
Employer’s stock he holds at the time of termination.
8.3 Termination
Upon Sale of Business. Notwithstanding
anything to the contrary, Employer may terminate this Agreement upon thirty (30)
days' written notice upon the
occurrence of any of the following events, which any one event will be treated
as a termination without cause for purposes of severance allowance pursuant to
this Agreement.
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A. The
sale by Employer of substantially all of its assets to a single purchaser
or a group of associated purchasers;
B. The
sale, exchange or other disposition, in one transaction, of more than fifty
percent (50%) of the outstanding common stock of the Employer;
C. A
decision by Employer to terminate its business and liquidate its assets; or the
merger or consolidation of Employer in a transaction in which the shareholders
of Employer receive more than fifty percent (50%) of the outstanding voting
shares of the new or continuing corporation.
D. Notwithstanding
the foregoing, should Employer agree to sell all or substantially all of its
assets, Employer shall purchase Executive’s Shares for an amount equal to the
greater of the Stock Purchase Price or the same price sold by shareholders of
Employer.
ARTICLE
IX
General
Provisions
9.1.
Waiver of
Breach. The waiver by
Employer of breach of any provisions of this Agreement by Executive shall not
operate or be construed as a waiver of any subsequent breach by
Executive.
9.2
Assignment. Executive
acknowledges that the services to be rendered by him are unique and
personal. Accordingly, Executive may not assign any of his rights
under this Agreement. The rights and obligations of Employer under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer.
9.3 Modification. This Agreement
may not be modified, changed or altered orally but only by an agreement in
writing signed by the party against an enforcement of any waiver, change,
modification, extension or discharge as sought.
9.4 Governing
Law. This Agreement
shall be governed by and construed under the laws of the State of
Utah.
9.5 Integration
Clause. This instrument
contains the entire agreement between the Parties hereto and supersedes any and
all prior written and/or oral agreements. This Agreement may be
altered or modified only in writing signed by the Parties hereto.
9.6 Notices. Any notice
required or desired to be given under this Agreement shall be deemed given if in
writing sent by certified mail to the Parties at each party’s last known
address.
9.7 Attorneys'
Fees. Should any party
seek the enforcement of any term of this Agreement, the prevailing party
thereunder shall be entitled to attorneys' fees and costs for the enforcement of
such term or provision.
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EMPLOYEE: XXXXXXXXXXX
X. XXXXXXX
/s/
Xxxxxxxxxxx
X. Xxxxxxx
EMPLOYER:
IDEAL FINANCIAL SOLUTIONS, INC.
By:
/s/
Xxxxxx
X. Xxxxxxx, CEO
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