Chief Operating Officer Employment Agreement

Employment Agreement


THIS AGREEMENT is made as of December 15, 1998, by and between MOFC, INC., d/b/a CONSUMER ONE FINANCIAL ("Employer") and its successors and assigns, and KEITH H. LEWIS ("Employee"), who, in consideration of the mutual promises of the parties and other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties have agreed as follows:


1. Definitions. Whenever the following words or phrases are used in the Agreement, they shall have the meanings given in this Section, unless otherwise indicated.


(a) "Affiliate" means any Person owned by (greater than 10%), owning (greater than 10%), under common ownership with, controlling, controlled by, or under common control with, another Person, which includes subsidiary and parent organizations.


(b) "Compete" shall mean in any way being in contest with or rivalry with Employer, including directly or indirectly working with, being employed by, or having any interest or involvement in any other Person which is involved in selling, marketing or otherwise providing any of the services or products which are provided or performed as part of the Primary Business Operation of Employer during Employee's employment with Employer.


(c) "Customer" shall mean individual borrowers, mortgage brokers or other sources of referrals of business to Employer.


(d) "Loans" means all residential real property loans, regardless of lien position.


(e) "Primary Business Operation" shall mean wholesale and retail origination and sale of Loans.


(f) "Person" shall include both natural persons and entities.


(g) "Territory" shall mean the area encompassed in a 35 mile radius around any office of Employer or its Affiliates which are in the same Primary Business Operation.


2. Employment. Employer employs Employee for the position specified on Schedule A. Employee agrees to perform such duties and to comply with the general supervision and policies of Employer and the orders, advice, and direction of the Board of Directors in managing such offices.


3. Duties. Employee shall perform the duties customarily performed by one holding Employee's position in similar businesses, and such duties as may be assigned by this Agreement as specified in Schedule A attached to and incorporated herein, and such other duties as may be assigned from time to time by Employer. Employee shall make available to Employer all information of which Employee shall have any knowledge, and shall make all suggestions and recommendations that will be of benefit to Employer.


4. Best Efforts of Employee. Employee will at all times faithfully, industriously, and to the best of Employee's ability, perform all of Employee's duties, to the satisfaction of Employer.


5. Term and Renewal. This Agreement is for an initial term of three (3) years, renewable thereafter on a year to year basis. Either party must give ninety (90) days written notice if the contract is not going to be renewed. Upon failure to give such notice, this Agreement will automatically renew for an additional year on the same terms. This notice requirement shall continue for all subsequent renewal periods.


6. Compensation. Employer shall pay Employee in full payment for Employee's services, compensation in accordance with the Compensation Schedule attached to this Agreement as Schedule B and incorporated as part of this Agreement, which shall remain in effect until supplemented or replaced by a new Agreement between Employer and Employee.


7. Other Activities. Employee shall devote all business time, attention, knowledge, and skills solely to the business and interest of Employer, and Employer shall be entitled to all of the benefits, profits or other issues arising from or incident to all work, services, and advice of Employee. Employee shall not, during the term of this Agreement, be employed by or contract to provide services to any other person or engage in any other business or trade, nor shall Employee use or take for Employee's personal benefit any position which conflicts with or is contrary to any position which would be beneficial to Employer. Nothing in this Agreement, however, shall limit Employee's right to invest in publicly traded securities, to engage in any business with the written consent of Employer, or to engage in civic and charitable activities.


8. Benefits. Employee shall be entitled to benefits according to Employer's stated policy, as amended from time to time.


9. Termination. Employer may terminate this Agreement at any time without advance notice for cause. For the purpose of this Agreement "cause" is defined as: (i) a breach of this Agreement or any policy, rule, instruction, or order of Employer relating to the Business; (ii) any act or omission by Employee which involves moral turpitude, gross negligence, dishonesty, bad faith, fraud, conflict of interest, intentionally lying to Employer, taking action prohibited by Employer, or breach of fiduciary duty, or other act or omission which in the sole discretion of the Board of Directors or Executive committee of the Employer, could have an adverse impact on the Employer in any respect, including but not limited to its financial condition, assets, operations, earnings, reputation, employee relations or discipline; (iii) violation of any law or regulation; (iv) repeated neglect of duties; (v) failure to follow any lawful directive from the Chairman of the Board or Board of Directors related to the Business; or (vi) a material breach by Employee of a representation, warranty or covenant in the Share Purchase Agreement of even date herewith in which Employee sold his stock in MOFC, Inc., d/b/a Consumer One Financial to Approved Financial Corp. To the extent that any act or omission in the preceding clauses are capable of being remedied or cured (which determination will be made by Employer in its sole discretion), then a violation will not be grounds for immediate termination unless Employer first provides notice to Employee which includes (a) the act or failure to act of Employee giving rise to the proposed termination, (b) the corrective action which Employer reasonably believes would cure the violation, and (c) twenty (20) days from receipt of the notice to take such corrective action. Furthermore, this Agreement shall terminate immediately upon Employee's death or disability, but such termination shall not affect any previously vested right of Employee to receive disability payments in accordance with any applicable plan for a disability which arises while this Agreement is in effect.


10. Confidential and Proprietary Information. In the course of this employment, Employee will be exposed to certain confidential and proprietary information of Employer and its Customers. Employee shall not reproduce or remove from any premises any such information without the express written consent of Employer. Any such information acquired by Employee shall be promptly delivered to Employer if in tangible form, unless specific written consent is received from Employer. Employee shall not at any time or in any manner, disclose to any Person, nor in any way use to his benefit or that of any other person, any information concerning any matters affecting or relating to the business of Employer, including any of its Customers, the prices it obtains or at which it offers its products or services, or the sources of and/or prices it pays for any supplies, material, services or technical assistance, or any other information concerning the finances or business of Employer or any of its Customers, without regard to whether any of the foregoing matters would otherwise be considered confidential or trade secrets, the parties agreeing that these matters are important, material, and confidential and gravely affect the successful conduct of Employer's business and goodwill, and that any breach of the terms of this Section shall be a material breach of this Agreement and result in irreparable harm to Employer. Employee further agrees that upon termination or expiration of this Agreement for any reason, Employee shall immediately deliver to Employer any and all information, documents, agreements, data, work product, customer lists, notes, and the like of Employer or relating to Employer's business. The duties and restrictions on Employee in this Section shall survive the expiration or termination of this Agreement and remain in full force and effect for so long as Employer continues in business.


11. Covenant Not to Compete. In consideration of the employment of Employee or in the event Employee is entering into this Agreement after having been an employee, either with a prior contract or no contract, then in consideration of continued employment, the benefits of this Agreement and other good and valuable consideration, ...