Employment Agreement - Wade Cook Financial Corp. and Wade B. Cook
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") effective as of this 30th
day of June, 2000, by and between Wade Cook Financial Corporation, a Nevada
corporation ("WCFC"), and Wade B. Cook, an individual ("Cook")(collectively, the
"Parties").
1. Employment. WCFC hereby employs Cook to serve as WCFC's President and
Chief Executive Officer. Cook hereby accepts such employment and agrees to
perform such duties and services as are reasonably related thereto, including,
but not limited to, the following duties: 1.1 Oversight of executive management;
1.2 Oversight of operations;
1.3 Oversight of marketing;
1.4 Oversight of the majority WCFC's wholly owned subsidiaries; and
1.5 Serve as president and treasurer of the majority of WCFC's wholly
owned subsidiaries.
During the term of this Agreement, Cook shall devote the substantial portion of
his business time, attention and energy exclusively to the business and affairs
of WCFC and the performance of his duties hereunder.
2. Term. Cook employment hereunder shall begin on July 1, 2000 for a term
of three years.
3. Compensation. For all services rendered by Cook under this Agreement:
3.1 Base Salary. WCFC agrees to pay Cook a base salary of Three
Hundred and Twenty-Five Thousand and No/100ths Dollars
($325,000.00) per annum in equal semi-monthly installments.
Payment of all compensation hereunder shall be made in accordance
with the relevant policies of WCFC in effect from time to time,
including normal payroll practices, and shall be subject to all
applicable employment and withholding taxes.
3.2 Stock Incentive. Cook may be entitled to stock incentives,
including, but not limited to, options, warrants, and phantom
options, in such amounts and at such times as determined by WCFC
Board of Directors (the "Board"), in its discretion, based on
WCFC's performance.
3.3 Bonus. Cook may be entitled to bonus compensation in such amounts
and at such times as determined by the Board, in its discretion,
based on WCFC's performance.
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3.4 Salary in the Event of Disability. If Cook becomes physically or
mentally disabled to the extent that he cannot perform the majority of
his usual duties for a period of 90 consecutive days, in the Board's
opinion, WCFC may terminate this Agreement. Upon such termination,
Cook shall be entitled to all accrued but unpaid Base Salary and
vacation, less the amount of any disability insurance payments
received by Cook under policies purchased by WCFC, if any, until
termination of this Agreement.
4. Office Facilities. Cook shall be furnished with such office, facilities,
services, supplies, and assistants as are suitable and adequate for the
performance of his duties hereunder.
5. Expenses. Upon submission of itemized expense statements in the manner
specified by WCFC, Cook shall be entitled to reimbursement for reasonable
business and travel expenses duly incurred by Cook in the performance of his
duties hereunder, in accordance with WCFC's current policies, as approved by the
Board.
6. Benefits. Cook shall be entitled to all rights and benefits for which he
is eligible under any bonus, pension, 401K, profit sharing, group insurance,
death benefit, or other benefit plan, which WCFC may provide for its employees
generally. WCFC will also obtain a One Million No/100ths Dollar ($1,000,000.00)
life insurance policy on Cook, provided, however, that the cost for such policy
does not exceed Seven Thousand Five Hundred and No/100ths Dollars ($7,500). At a
minimum, Cook shall receive medical, dental and vision insurance for him, his
spouse and children.
7. Vacation. Cook shall be entitled to six weeks of vacation each year of
full employment, exclusive of legal holidays, as long as the scheduling of
Cook's vacation does not interfere with WCFC's normal business operations.
8. Covenant Not to Compete. Cook agrees that during the term of his
employment with WCFC, and for a period of 60 months thereafter, Cook will not
engage in any employment, business, or activity that is in any way competitive
with the business or proposed business of WCFC and/or its subsidiaries in the
United States, and he will not assist any other person or organization in doing
so. The provisions of this paragraph shall apply both during normal working
hours and at all other times including, but not limited to, nights, weekends and
vacation time while he is employed by WCFC.
9. Ownership, Confidentiality and Assignment. At all times, both during
Cook's employment by WCFC and after his termination for any reason, he will keep
in strict confidence and trust, and will not use or disclose any Proprietary
Information, as defined below, or anything relating to it without the WCFC's
prior written consent, except as may be necessary and appropriate in the
ordinary course of his employment as the case may be. For purposes of this
Agreement, "Proprietary Information" is information that was or will be
developed, created or discovered by Cook or others for and on behalf of the WCFC
and/or its subsidiaries, or that became or will become known by Cook as a result
of his employment by WCFC and/or its subsidiaries, or was or is conveyed to WCFC
by others, and has commercial value in the WCFC's business. The Parties
acknowledge and agree that Proprietary Information includes, but is not limited
to, information about formulas, formats, technology, ideas, know-how, processes,
trade secrets, computer programs, designs, data, techniques, improvements,
inventions (whether patentable or not), works of authorship, business and
product development plans, marketing plans, models, financial information, the
salaries and terms of compensation of the WCFC's or its related subsidiaries
employees or independent contractors, customers and customer lists, and other
information concerning WCFC and/or its subsidiaries, whether or not in written
or other tangible form and whether or not designated as confidential, which is
treated by WCFC and/or its subsidiaries as confidential.
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10. Indemnification. Cook shall be fully indemnified by WCFC as an officer
as provided for under the Bylaws and Articles of Incorporation for WCFC.
11. Termination
11.1 For Cause. Notwithstanding anything herein to the contrary, the
WCFC may terminate Cook's employment, for cause, for anyone of
the following reasons: (i) conviction of a felony, any act
involving moral turpitude, or a misdemeanor where imprisonment is
imposed; (ii) commission of any act of theft, fraud, dishonesty,
or falsification of any employment or other records of WCFC;
(iii) improper disclosure of WCFC's confidential or proprietary
information; (iv) any action by Cook which has a detrimental
effect on WCFC's reputation or business; (v) Cook's failure or
inability to perform any reasonable assigned duties after written
notice from WCFC of, and a reasonable opportunity to cure, such
failure or inability; (vi) any breach of this Agreement, which
breach in not cured within 30 days following written notice of
such breach; (vii) a course of conduct amounting to gross
incompetence; (viii) chronic and unexcused absenteeism; (ix)
unlawful appropriation of a corporate opportunity; or (x)
misconduct in connection with the performance of any of Cook's
duties, including, without limitation, misappropriation of funds
or property of WCFC, securing or attempting to secure personally
any profit in connection with any transaction entered into on
behalf of WCFC, misrepresentation to WCFC, or any violation of
law or regulations on WCFC premises or to which WCFC is subject.
Upon termination of Cook's employment with WCFC for cause, WCFC
shall be under no further obligation to Cook, except to pay all
accrued but unpaid Base Salary and accrued vacation to the date
of termination thereof.
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11.2 Without Cause. If two-thirds (2/3) of the disinterested members of the
Board vote in favor to terminate Cook without cause, WCFC may
terminate Cook's employment hereunder, provided, however, that Cook
shall be entitled to severance pay in the amount equal to six months
of Cook's then Base Salary in addition to accrued but unpaid Base
Salary and accrued vacation, plus medical, dental and vision insurance
benefits, less deductions required by law. Such severance compensation
shall be paid if and only if Cook executes a valid an comprehensive
release of any and all claims that Cook may have against WCFC in a
form provided by WCFC's counsel and Cook executes and delivers such
form to WCFC within seven days of tender thereof.
11.3 Mutual Agreement. The Parties may mutually agree to terminate the
Cook's employment in writing between WCFC and Cook.
11.4 Resignation. Cook may resign by giving WCFC 30 days' written notice of
his intent to terminate this Agreement.
11.5 Cooperation. After notice of termination, Cook shall cooperate with
WCFC, as reasonably requested by WCFC, to effect a transition of
Cook's responsibilities and to ensure that WCFC is aware of all
matters being handled by Cook.
12. Assignment of Insurance. In the event this Agreement is terminated
other than by death, WCFC, upon the request of Cook, shall assign to Cook any
insurance policy owned by WCFC under which Cook is the insured and which by its
terms is assignable; provided that, if any such policy has a cash surrender
value, Cook shall pay the then cash surrender value of such policy to WCFC in
exchange for its assignment to him hereunder. Any conversion rights which Cook
may have under the terms of any such insurance policy shall survive any
termination of this Agreement.
13. General Provisions
13.1 Entire Agreement. This Agreement contains the entire agreement
among the Parties relating to the subject matter hereof and
supersedes any and all prior agreements or understandings,
written or oral, among the Parties related to the subject matter
hereof. No modification of this Agreement shall be valid unless
made in writing and signed by the Parties.
13.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington.
13.3 Binding Effect. Except as otherwise provided, this Agreement
shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns.
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13.4 Attorneys' Fees. In the event of a dispute among the Parties
hereto with respect to the interpretation or enforcement of this
Agreement, the substantially prevailing party shall be entitled
to collect its reasonable attorneys' fees and costs from the
nonprevailing party.
13.5 Counterparts. This Agreement may be executed simultaneously in
counterparts each of which shall be an original, but all of which
together shall constitute one and the same instrument.
13.6 Facsimile Transmission. Facsimile transmission of any signed
original document, and retransmission of any signed facsimile
transmission, shall be the same as transmission of an original.
At the request of any party hereto, the Parties will confirm
signatures transmitted by facsimile by signing an original
document.
13.7 Dispute Resolution. The Parties agree to first try to resolve any
dispute or controversy arising out of, in connection with, or
relating to this Agreement between them. If they are unable to do
so, the Parties then agree to seek mediation before a mediator
acceptable to each of the Parties. If mediation fails to resolve
the dispute or controversy, the Parties agree to submit the
dispute or controversy to binding arbitration conducted by an
arbitrator mutually selected by the Parties, or, in the event the
Parties cannot agree upon such an arbitrator, then by the
American Arbitration Association (the "AAA"). The arbitration
shall be conducted pursuant to the AAA's then-existing rules and
regulations and shall be held in Seattle, Washington. Any
decision so rendered in arbitration shall be binding and final on
all Parties. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES
NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
13.8 Notice. Any notice required or permitted hereunder shall be given
in writing either by personal delivery or by mail to the address
set forth below the Parties' respective signatures. The date upon
which any such notice is so personally delivered or, if such
notice is given by mail, the date upon which it is received by
the addressee shall be deemed to be the effective date of such
notice.
13.9 Waiver. The waiver by either party of any breach or failure to
enforce any of the terms and conditions of this Agreement at any
time shall not in any way affect, limit, or waive such party's
right thereafter to enforce and compel strict compliance with
every term and condition of this Agreement.
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13.10 Assistance in Litigation. Cook shall, during and after
termination of employment, upon reasonable notice, furnish such
information and proper assistance to WCFC in connection with any
litigation in which it or any of its subsidiaries or affiliates
is, or may become a party; provided, however, that such
assistance following termination shall be furnished at mutually
agreeable times and for mutually agreeable compensation.
EXECUTED as of the day and year first above written.
WADE COOK FINANCIAL CORPORATION
a Nevada corporation
By:
Its: ___________________________
-------------------------------- Wade B. Cook
Address: 14675 Interurban Avenue South Address:
Seattle, Washington 98168-4664
Telephone No. Telephone No.
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Facsimile No. Facsimile No.
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E-Mail Address: E-Mail Address:
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