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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 1, 2024
NICHOLAS FINANCIAL, INC.
(Exact name of registrant as specified in its Charter)
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Delaware |
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0-26680 |
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59-2506879 |
(State or Other Jurisdiction of Incorporation or Organization) |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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26133 US Highway 19 North, Suite 300 Clearwater, Florida |
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33763-2017 |
(Address of Principal Executive Offices) |
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(Zip Code) |
(727) 726-0763
(Registrant’s telephone number, Including area code)
Not applicable
(Former name, former address and former fiscal year, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock |
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NICK |
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NASDAQ |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On June 6, 2024, Irina Nashtatik resigned as the Chief Financial Officer of Nicholas Financial, Inc. (the “Company”). Prior to Ms. Nashtatik’s resignation, the Company entered into an amendment to Ms. Nashtatik’s existing employment agreement. Among other things, the amendment extended the term of the agreement, increased the base salary and deleted several restrictive covenants. The foregoing description of the amendment is qualified in its entirety by reference to the amendment, which is filed with this Current Report on Form 8-K as Exhibit 10.1.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As reported under Item 1.01 above, on June 6, 2024 Irina Nashtatik resigned as the Company’s Chief Financial Officer. She will remain with the Company until July 12, 2024, after which she is expected to remain as a consultant to the Company until December 31, 2024 to assist with the transition. She will be paid $75,000 for her availability as a consultant. Ms. Nashtatik is resigning for personal reasons and there were no disagreements between Ms. Nashtatik and the Company. Her departure is not related to the operations, policies or practices of the Company or any issues regarding accounting policies or practices.
The Company separately appointed Charles Krebs as the Company’s Chief Financial Officer, effective June 19, 2024.
Mr. Krebs, age 41 , has extensive accounting and financial experience. Prior to joining the Company, Mr. Krebs worked in a variety of treasury and finance roles at Peter Kiewit Sons, Inc., a multi-billion dollar international engineering and construction company, most recently as Sr. Manager of Treasury where he was in charge of Kiewit’s Treasury Operations. While at Kiewit, Mr. Krebs' responsibilities included corporate cash management, cash forecasting, currency & commodity risk mitigation, and investment performance and compliance. Mr. Krebs holds a Bachelor’s degree in Finance from Hillsdale College.
Mr. Krebs will receive an initial annual base salary of $190,000, which will increase to $200,000 in the second year. Mr. Krebs will also receive an annual bonus, subject to change at the sole discretion of the Company, which will be no less than twenty percent (20%) of his then-current base salary with fifty percent (50%) of the bonus awarded in Company shares.
If Mr. Krebs is terminated without cause (as defined in the agreement), the Company will pay him severance equal to the full value of his remaining base pay for the remainder of the term plus the current cash value of the minimum bonus amounts outlined for the term. The full value of any and all shares and/or options that are unvested will be paid to Mr. Krebs as cash, and all such unvested shares and/or options will immediately revert to the Company.
In addition, Mr. Krebs is eligible to participate in the Company's standard benefit plans and programs. The foregoing description of the agreement is qualified in its entirety by reference to the agreement, which is filed with this Current Report on Form 8-K as Exhibit 10.2.
Item 9.01. Financial Statements and Exhibits
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(a) |
Not applicable |
(b) |
Not applicable |
(c) |
Not applicable |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, hereunto duly authorized.
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NICHOLAS FINANCIAL, INC. |
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(Registrant) |
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Date: May 12, 2024 |
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/s/ Mike Rost |
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Mike Rost |
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Chief Executive Officer |
EXHIBIT 10.1
AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (“Amendment”) is entered into with the intent it be effective as of May 1, 2024 (the “Amendment Effective Date”) by and between NICHOLAS FINANCIAL, INC. (“Company”) and IRINA NASHTATIK (“Employee”). This Amendment amends that certain Employment Agreement between Company and Employee with an effective date of July 21, 2022 (the “Agreement”). Capitalized terms used and not otherwise defined herein have the meanings set forth in the Agreement.
In consideration of the mutual covenants and agreements of the parties herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and Employee agree that the Agreement is hereby amended as follows:
1.Section 2 (“TERM”). Effective as of the Amendment Effective Date, all of the provisions of Section 2 (“TERM”) of the Agreement are hereby deleted in their entirety and replaced with the following new provisions for Section 2:
“The employment of the Employee under the Agreement commenced on or around July 1, 2022, and the employment of the Employee will continue until December 31, 2024 (“Amended Employment Term”). By mutual written consent, Company and Employee may extend the Amended Employment Term (an “Extension”). For the planning purposes of Company and Employee, it is the intent of each party to decide and notify the other party in writing by August 31, 2024 if an Extension will be entered into by Company and Employee. For purposes of clarification only, the Amended Employment Term will not automatically extend and will only extend if Company and Employee mutually agree in writing to an Extension. Notwithstanding anything to the contrary herein, this Agreement may be terminated in accordance with Section 5 hereof (with the exception of the obligations of the parties hereunder that shall survive any such termination). Expiration of this Agreement will not affect the rights or obligations of the parties hereunder arising out of, or relating to, circumstances occurring prior to the expiration of this Agreement, which rights and obligations will survive the expiration of this Agreement.”
2.Section 3 (“COMPENSATION”). (i) Section 3(a) (“Annual Base Salary”) is hereby deleted in its entirety and replaced with the following:
“(a) Amendment Employment Term Base Salary. The Employee shall receive, and the Company shall pay, a base salary of $240,000 from the Amendment Effective Date to December 31, 2024 (the “Amendment Employment Term Base Salary”). The Amendment Employment Term Base Salary may be increased by the Company’s Board of Directors in its sole discretion. The Amendment Employment Term Base Salary shall be payable in equal installments in accordance with the policy then prevailing for the Company’s employees. The Employee also shall be entitled, during the Amended Employment Term, to participate in and receive payments from all incentive compensation plans as may be adopted by the Company and as are made available to other employees of the Company.”
(ii) Section 3(b) (“Bonus”) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(b) Amendment Employment Term Bonus. The Employee shall receive, and the Company shall pay, a bonus in the range of TWENTY-FIVE THOUSAND DOLLARS ($25,000) to SEVENTY-FIVE THOUSAND DOLLARS ($75,000) on or before December 31, 2024 (the “Amendment Employment Term Bonus”). The final amount of the Amendment Employment Term Bonus shall be determined by the Company’s Board of Directors in its sole discretion. For purposes of clarification only, if the Agreement is terminated voluntarily by Employee prior to December 31, 2024, Employee shall not receive the Amendment Employment Term Bonus.”
3.Section 4 (“NONCOMPETITION, NON-DISCLOSURE AND STOCK OWNERSHIP REQUIREMENTS”). Sections 4(b) (i), (ii), (iii) and Section 4(d) of the Agreement are hereby deleted in their entirety. For purposes of clarification only, the removal of these noncompete provisions are intended to allow Employee to perform similar services for a separate company after the expiration or termination of this Agreement; however, Employee accepts, acknowledges and agrees that Employee shall devote her best efforts and substantially all of her business time, skill, labor and attention to the performance of her duties for Company during the Amended Employment Term (including any Extensions to such Amended Employment Term), and none of the other obligations of Employee are limited by the removal of the noncompete provisions detailed herein.
4.Section 5 (“TERMINATION”). Section 5(e) (“Voluntary Termination by Employee”) is hereby deleted in its entirety and replaced with the following:
“The Employee agrees to provide the Company with at least twenty (20) calendar days’ (“Termination Notice Period”) prior written notice of her intent to terminate employment voluntarily. Failure to provide such notice terminates the Employee’s entitlement to payment of accrued, unused benefits, if any. However, the Company reserves the right to terminate the Employee before the end of the Termination Notice Period, provided that the Company pays the Employee the salary that she would have received from the date of the last payroll payment to the end of the Termination Notice Period. Such salary shall be paid in accordance with the Company’s normal payroll procedures applicable to Amendment Employment Term Base Salary. The Company and the Employee may also terminate the Employee’s employment by mutual agreement documented in writing before the end of the Termination Notice Period, in which case the Employee’s entitlement to payment of Amendment Employment Term Base Salary and accrued, unused benefits, if any, is terminated on the date of the written mutual agreement. During the Termination Notice Period, the Employee agrees to make a good faith effort to perform the duties described hereunder. If, during the Term, the Employee voluntarily terminates her employment with the Company, the Company’s obligations, including payment obligations, under this Agreement shall cease, except that the Company shall pay the Employee the salary that she would have received from the date of the last payroll payment to the end of the Termination Notice Period in accordance with the Company’s normal payroll procedures applicable to Base Salary.” Section 5(f) (“Regular Severance Payments”) of the Agreement is hereby deleted in its entirety.
5.Section 12 (“NOTICE”). Section 12 (“Notice”) of the Agreement is hereby amended and revised to change the notice address of the Company to the following:
“Nicholas Financial, Inc.
Attention: Anthony D. Scioli, Esquire
Kutak Rock LLP
1650 Farnam Street
Omaha, NE 68102”
6.Miscellaneous. All other terms and conditions of the Agreement remain unchanged and in full force and effect. This Amendment and the Agreement constitute the entire understanding between Company and Employee with respect to the subject matter hereof and supersede all negotiations, representations, and prior discussions and preliminary agreements between Company and Employee relating to the same subject matter. In the event of any conflict, ambiguity or inconsistency between this Amendment and the Agreement, this Amendment shall govern and control. As amended by this Amendment, the Agreement remains in full force and effect. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed a single document. Signatures delivered electronically shall have the same force and effect as original signatures.
IN WITNESS WHEREOF, the parties have executed this Amendment with the intent it be effective as of the Amendment Effective Date.
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NICHOLAS FINANCIAL, INC. |
IRINA NASHTATIK |
By: /s/ Mike Rost Name: Mike Rost Title: Chief Executive Officer Date: 06/06/2024 |
By: /s/ Irina Nashtatik Name: Irina Nashtatik Title: Chief Financial Officer Date: 06/06/2024 |
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EXHIBIT 10.2
Employment Agreement
This Agreement is made and effective as of June 19, 2024 (the “Effective Date”) by and between NICHOLAS FINANCIAL, INC., a Delaware company (“Employer” or “Company”) and CHARLES KREBS (“Employee”) and supersedes any prior employment-related agreements or oral representations between Employer and Employee unless otherwise incorporated into this Agreement by reference. Unless the context otherwise requires, all references to a designated section refer to the designated provision of this Agreement.
For and in consideration of the mutual promises and covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Employer and Employee agree as follows:
1.Term. Employee’s employment hereunder shall begin on the Effective Date and end two (2) years from the Effective Date, unless otherwise terminated pursuant to the terms and conditions of this Agreement (the “Term”).
2.Position. During the Term, Employee shall serve as the chief financial officer with all the usual, customary and commensurate authority and duties such a position requires, as well as any other duties assigned to Employee. Employee acknowledges that Employee’s title and duties may change at any time during the Term of this Agreement. Employee shall remain subject to the overall authority of Employer’s board of directors (“Board”) and chief executive officer (“Principal”). Employee shall comply at all times with all rules, handbooks, policies and codes of conduct of Employer, whether written or unwritten, which may change from time to time at the sole and absolute discretion of Employer. Nothing in any of Employer’s rules, handbooks, policies or codes of conduct shall be construed to create employment for a specific time or to create any rights in favor of Employee that are contrary to the provisions of this Agreement.
3.Best Efforts and Duty of Loyalty. Employee shall use Employee’s best efforts to promote the interests, prospects and condition (financial and otherwise) and welfare of Employer and shall perform Employee’s duties and responsibilities to the best of Employee’s ability in a diligent, trustworthy, businesslike and efficient manner. Employee shall not engage in any consulting or other employment activities for any direct or indirect remuneration without the written approval of Employer. Employee will perform his duties in a manner consistent with generally accepted business and industry practices.
4.Authority. Employee does not have authority to commit the Company or the Principal, or any entity owned or controlled by the Company or the Principal, to any investment, business opportunity, or project.
5.Compensation. During the first twelve (12) months of the Term, Employer agrees to pay Employee for Employee’s services a base salary at the gross rate prior to all taxes and
other withholdings of one hundred and ninety thousand dollars ($190,000) (“Year 1 Base Salary”). From months thirteen (13) to twenty-four (24) of the Term, Employer agrees to pay Employee for Employee’s services a base salary at the gross rate prior to all taxes and other withholdings of two hundred thousand dollars ($200,000) (“Year 2 Base Salary”) The Year 1 Base Salary and the Year 2 Base Salary will be subject to periodic review and may be adjusted upward from time to time under direction of the Board and/or the Principal, in the Board and/or the Principal’s sole and absolute discretion, considering factors including, but not limited to, Employee’s performance, financial needs of the Company, compensation of similar employees of similarly sized and located companies, and other pertinent factors. The Base Salary shall be payable in accordance with Employer’s customary payroll practices applicable to its Employees.
6.Bonus. During Employee’s employment under this Agreement, Employee shall be eligible to receive cash bonuses, payable in accordance with Employer’s customary payroll practices applicable to its Employees, at the discretion of Employer. At the discretion of the Board and/or the Principal, Employee shall be eligible to receive shares of the Company (for purposes of clarification, some share awards may be subject to a vesting schedule with time and/or performance requirements), subject to execution of the applicable Company shareholder restriction agreements . Employee’s annual bonus, subject to change at the sole discretion of the Company, shall be no less than twenty percent (20%) of his then current base salary with fifty percent (50%) of the bonus awarded in Company shares (for purposes of clarification, Company shares awarded as part of the annual bonus shall be fully vested upon award).
7.Benefits. Employee shall be entitled to participate in all employee benefit plans, practices, and programs maintained by Employer, if any, and made available to similarly situated Employees. Employee’s participation in any such employee benefit plans shall be in accordance with the terms and conditions thereof and Employer’s policies and practices in effect from time to time. Employee benefits, and the terms and conditions thereof, may be modified or terminated from time to time by Employer without obtaining the prior consent of Employee or amending this Agreement, provided that Employer will provide Employee with notice of any changes consistent with other similarly situated Employees. The determination to maintain any benefit plans lies within the sole discretion of the Employer.
8.Termination by Company.
(a)General. Employee’s employment with Company is “at will” and Company shall have the right to terminate this Agreement with or without Cause, as defined in this Agreement, at any time during the Term by giving written notice to Employee. The termination shall become effective on the date specified in the notice.
(b)Cause Defined. “Cause” shall mean:
(i) gross negligence, gross incompetence or willful misconduct in the performance of Employee’s duties with respect to the Company or any of its affiliates;
(ii) neglect, malfeasance, nonfeasance, or other conduct of Employee in the performance of the services contemplated by this Agreement which, in the sole judgment of Company, causes Employee to fail to satisfy reasonable standards of performance which have been communicated in advance to Employee and which Employee fails to cure after being given a reasonable opportunity to cure (the period of time for such reasonable opportunity to cure shall not exceed thirty (30) calendar days unless otherwise determined by Company);
(iii) the failure by Employee to comply with Company policies, decisions and instructions, as determined in the sole judgment of Company;
(iv) any suspension or barring of Employee from performing his material duties hereunder by reason of any statute, law, ordinance, regulation, order, judgment, or decree;
(v) willfully engaging in conduct that is materially injurious to the Company or any of its affiliates;
(vi) the disclosure, without specific authorization from the Company, of confidential information of the Company or any of its affiliates that is materially injurious to any such entity;
(vii) an act of theft, fraud, embezzlement, misappropriation or willful breach of a fiduciary duty to the Company or any of its affiliates;
(viii) has been convicted of (or pleaded no contest to) a crime involving fraud, dishonesty or moral turpitude or any felony (or a crime of similar import in a foreign jurisdiction);
(ix) the written confession by Employee of a felony, serious misdemeanor, or any crime or offense involving misuse or misappropriation of money or other property;
(x) irreconcilable differences with the Company or its Principal and/or Board;
(xi) obstructive, destructive, demoralizing or unethical behavior or any other serious or persistent misconduct;
(xii) knowingly providing false or misleading information about Company or its affiliates to any person;
(xiii) physically harming, threatening to harm or harassing (including sexual harassment) any employee, officer, director, agent and/or customer of Company or its affiliates;
(xiv) any actual conflict of interest;
(xv) engaging in any act that is intended to harm, or may reasonably be expected to harm, the reputation and/or interests of Company;
(xvi) any breach of this Agreement, including but not limited to any breach of the Employee covenants set forth in paragraph 10 or the failure or cessation of the Employee representations set forth in paragraph 14 to be true, accurate and complete; or
(xvii) any unforeseen circumstance that amounts to a breach of duty, contractual or otherwise, that Employee owes to Company.
(c)Termination by Company with Cause. In the event Employee is terminated for Cause, such termination shall be effective immediately upon notice from Company and Company shall pay Employee all accrued but unpaid Base Salary through the effective date of such termination with Cause, less payroll deductions and withholdings required by law. Any such payments shall be payable in accordance with normal payroll practices. Employee shall not be entitled to receive any further compensation, including bonus compensation, if terminated with Cause. Any and all shares and/or options that are unvested shall be forfeited, and all such unvested shares and/or options shall immediately revert to the Company.
(d)Termination by Company Without Cause. In the event Employee is terminated without Cause, such termination shall be effective as of the date specified by the Company in a written notice to Employee, and Company shall pay Employee’s accrued but unpaid Base Salary through the effective date of such termination without Cause, less payroll deductions and withholdings required by law. In addition, provided Employee signs and does not revoke as may be permitted by law a general release of claims in a form acceptable to Company, Company shall pay Employee severance pay equal to the full value of employee’s remaining base pay for the remainder of the Term plus the current cash value of the minimum bonus amounts outlined for the Term. The full value of any and all shares and/or options that are unvested shall be paid to the employee as cash, and all such unvested shares and/or options shall immediately revert to the Company.
(e)Termination by Death or Disability of Employee.
(i) General. In the event of Employee’s death during the Term, all obligations of the parties under this Agreement shall terminate immediately, and Company shall pay to Employee’s legal representatives all outstanding Base Salary through the date of death, less payroll deductions and withholdings required by law. Any and all shares and/or options that are unvested shall be forfeited, and all such unvested shares and/or options shall immediately revert to the Company.
(ii) Disability. Subject to applicable state and federal law, if Employee is unable to perform Employee’s duties due to mental, physical, or other disability for a period of ninety (90) days in any twelve (12) consecutive months, as determined in good faith by the Company, this Agreement may be terminated by Company, at its option, by
written notice to Employee, effective on the termination date specified in such notice, provided such termination date shall not be a date prior to the date of the notice of termination itself. Company shall pay to Employee all outstanding Base Salary through the termination date specified in the notice, less payroll deductions and withholdings required by law. Any and all shares and/or options that are unvested shall be forfeited, and all such unvested shares and/or options shall immediately revert to the Company.
(f)Disability Insurance. Any amounts paid to Employee pursuant to disability insurance policies provided and paid for by Company shall be offset against the amount of salary due from Company to Employee during the period of Employee’s disability. Notwithstanding the foregoing, nothing in this Section shall be construed as requiring Company to procure or maintain disability insurance for the benefit of Employee.
(g)Termination by Employee. Employee may terminate this Agreement at any time, with or without cause, by giving written notice to Company. Any such termination shall become effective on the date specified in such notice, provided that Company may elect to have such termination become effective on a date after, but not more than, fourteen (14) calendar days after the date of the notice. Company shall pay Employee all accrued but unpaid Base Salary, less payroll deductions and withholdings required by law, through the effective date of such termination. Any such payments shall be payable in accordance with normal payroll practices. Any and all shares and/or options that are unvested shall be forfeited, and all such unvested shares and/or options shall immediately revert to the Company.
(a)Competition During Employment Prohibited. During the term of Employee’s employment, Employee shall not, either alone or as a member of a partnership or association, or as an officer, director, advisor, consultant, agent, or employee of any other organization, be engaged in, concerned with or providing services to any business or individual in competition with the business of Employer or any of its active business segments. For this purpose, competition with the business of Employer includes pursuing investment opportunities for any individual or entity, other than Employer and Principal, including but not limited to financial services.
(b)Usurpation of Employer Opportunity Prohibited. During the Term of Employee’s employment and for a period of one year thereafter, Employee shall not take advantage of any Employer opportunity without first offering the opportunity with full disclosure of material facts to Employer and receiving notice that Employer has declined such opportunity. For this purpose, “Employer opportunity” means any opportunity to engage in a business activity: (1) of which Employee becomes aware (A) by virtue of Employee’s relationship with, or in connection with performing functions in the business of, or in using facilities or other resources of Employer, and (B) under circumstances that should reasonably lead Employee to believe that the person offering the opportunity expects it to be offered to Employer; or (2) which Employee knows is closely related to a business in which Employer is engaged or expected to engage;
(c)Confidentiality and Non‑Disclosure. Employee recognizes and acknowledges that Employer has developed and established valuable Confidential Information (as defined below) and business and professional contacts and that Employee will have access to and/or assist in the development or maintenance of such Confidential Information and business and professional contacts solely as a result of Employee’s employment with Employer. In consideration of the special and unique information and opportunities afforded to Employee as a result of employment with Employer, Employee agrees (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, to any entity or person other than those with need and authority to know and use the Confidential Information in connection with the business of Employer; and (iii) not to access or use any Confidential Information, and not to copy any resources containing any Confidential Information, or remove any such resources from the premises or control of Employer, except as required in the performance of Employee’s authorized employment duties to Employer. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. Employee shall promptly provide written notice of any such order to the Principal.
Employee understands and acknowledges that Employee’s obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon Employee first having access to such Confidential Information (whether before or after Employee begins employment by Employer) and shall continue during and after Employee’s employment by Employer until such time as such Confidential Information has become public knowledge other than as a result of Employee’s breach of this Agreement or breach by a third party and/or by those acting in concert with Employee or on Employee’s behalf.
(d)“Confidential Information” is information, in any format or medium, not generally known to the public or widely known within the industry, relating to Employer’s (and the affiliates of Employer’s) operations, whether current, past, or planned. Such Confidential Information includes, but is not limited to, all information relating directly or indirectly to: business processes, methods or policies; plans, research, services, or strategies; transactions or potential transactions; trade secrets; computer programs, software, applications, or design; supplier or vendor information; financial, accounting, legal, marketing, advertising or pricing information; and any names and addresses of customers or clients or any data on or relating to past, present or prospective customers or clients of Employer. Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. Failure to identify or to specifically mark any Confidential Information as confidential shall not affect its status as Confidential Information under this Agreement. Employee understands and agrees that Confidential Information includes information developed by Employee in the course of Employee’s employment by Employer as if
Employer furnished the same Confidential Information to Employee in the first instance. Confidential Information shall not include information that is generally available to and known by the public or widely known within the industry at the time of disclosure to or creation by Employee, provided that such disclosure is through no direct or indirect fault of Employee or persons acting on Employee’s behalf.
(e)Non‑Solicitation of Business Relationships. During the term of Employee’s employment, and for a period of one year thereafter, Employee shall not, either alone or as a member of a partnership or association, or as an officer, director, advisor, consultant, agent, or employee of any other organization, not, either individually or on behalf of any other individual or entity, directly or indirectly, (a) solicit, sell to, divert, serve, accept or receive business from, or (b) attempt to solicit, sell to, divert, serve, accept or receive business from any individual or entity with whom Employer maintained a business, investment, or financial interest in or with during Employee’s employment with Employer. Although Employee may have personal contact and do business with any such individual or entity in various ways and in a manner not specifically addressed by this Agreement, Employee will be deemed to have had personal contact and to have done business with such individual or entity if Employee personally solicited or had other personal interaction with the individual or entity by telephone, writing, or in person while Employee was performing his duties on behalf of Employer or for a period of one year thereafter.
(f)Return of Property. Employee agrees that, upon termination of employment, Employee will immediately surrender to Employer all Employer property in Employee’s possession or control, tangible or intangible, including, without limitation, Confidential Information in whatever embodiment or form, and all copies and other reproductions and extracts thereof, including those prepared by Employee.
(g)Non‑Solicitation of Employees. During the term of Employee’s employment, and for a period of one year thereafter, Employee shall not, either alone or as a member of a partnership or association, or as an officer, director, advisor, consultant, agent, or employee of any other organization, solicit or encourage any employee of Employer to leave employment with Employer or otherwise make an offer of employment to any such individual.
(h)Non‑Disparagement. During the term and following termination of Employee’s employment, Employee shall not criticize, ridicule or make any statement which disparages or is derogatory of Employer, the Board or the Principal in any communications with any third party or in any public statement.
(i)Restriction Period. The period of time during which the Employee is prohibited from engaging in such business practices pursuant to this Section 10 shall be extended by any length of time during which the Employee is in breach of such covenants.
10.Acknowledgment of Reasonableness of Restrictions. Employee agrees to abide by the covenants contained in Section 10 in consideration of Employee’s employment, and to induce Employer to enter into this Agreement. Employee agrees that the restraints imposed under this Agreement are no greater than are reasonably necessary to preserve and protect the
legitimate business interests of Employer and Principal, in light of the nature of the business in which Employer and Principal are engaged. Employee further acknowledges and agrees that Employer’s business is highly dependent upon Employee’s services for its success, that Employer has entrusted many aspects of its business and Confidential Information to Employee, and that Employee is an essential employee performing a key role for Employer in which Employee will have influence over other employees and business partners of Employer, and, therefore, the restrictions set forth in Section 10 are reasonable and essential to protect Employer’s legitimate business interests. Employee further acknowledges and agrees that the enforcement of the restrictive covenants in Section 10 by Employer will not in any manner impose an undue hardship upon Employee or preclude Employee from becoming gainfully employed in such manner and to such extent as to provide a standard of living for Employee, the members of Employee’s family, and those dependent upon Employee of at least the sort and fashion to which Employee and they have become accustomed or may expect.
11.Specific Enforcement. Employee acknowledges that any breach of the covenants of Section 10 may result in irreparable injury and damage to Employer for which Employer may have no adequate remedy at law. Accordingly, Employee agrees that in the event of any such breach or any threat of breach:
(a)Employer shall, in addition to any other remedies or damages available to it at law or in equity, be entitled to immediate and permanent specific performance injunctive relief restraining such breach or threatened breach, without having to prove damages and without provision of any bond. In addition, Employer shall be entitled to all costs and expenses, including reasonable attorneys’ fees and costs in enforcing the covenants of Section 10.
(b)In the event of Employee’s violation of any restrictions in Section 10, the time period of the restrictions shall be extended by the period of time beginning when the violation commenced and ending when all activities constituting the violation shall have finally terminated in good faith to the reasonable satisfaction of Employer.
(c)In the event that any portion of the restrictive covenants contained in Section 10, whether related to time period, geographic area, the nature of the activities restricted or otherwise, shall be declared by a court of competent jurisdiction to exceed the maximum that such court deems reasonable and enforceable, then this Agreement shall be deemed to be modified, and the parties desire the court to enforce and give effect to the restrictive covenants to the maximum extent permitted by law.
The covenants of Section 10 and the remedies of Employer under this Section 12 shall survive any termination of this Agreement. Further, the existence of any claim or cause of action by Employee against Employer, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer of the covenants of Section 10.
12.Notification of Right to Disclose. Employee acknowledges receipt of notice that an individual may not be held criminally or civilly liable under any federal or state trade secret
law for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. In addition, Employee has been given notice that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Finally, Employee acknowledges receipt of notice that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
13.Employee’s Representations. Employee represents, warrants and covenants as follows to the best of his knowledge:
(a)Employee is not a party to, or subject to the terms of, any agreement, written or unwritten, with any person, firm or entity which would have the effect of prohibiting Employee from entering into this Agreement or from carrying out the terms of this Agreement.
(b)Employee has not taken, does not possess and does not have under Employee’s control any property that belongs to Employee’s former employer. Employee has not taken any trade secrets or other confidential information from Employee’s previous employer, and, even if Employee did have such trade secrets or confidential information, Employee agrees that Employee will not disclose those trade secrets and confidential information to Employer or use them in Employee’s employment.
(c)Employee has not accepted, nor agreed to accept, and will not solicit, receive, accept or agree to accept, directly or indirectly, from any person or entity other than Employer any consideration for Employee to mention, use or identify any product, service, material, trademark or brand name.
(d)EMPLOYEE FULLY UNDERSTANDS EVERY PROVISION OF THIS AGREEMENT AND HAS BEEN ADVISED OF EMPLOYEE’S RIGHT TO HAVE THIS AGREEMENT REVIEWED BY AN ATTORNEY OF EMPLOYEE’S CHOOSING AND HAS EITHER DONE SO OR HAS KNOWINGLY AND WILLINGLY DECIDED NOT TO DO SO.
14.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Employer, its successors and assigns and shall be binding upon Employee, Employee’s administrators, executors, legatees, heirs, and other legal representatives. Employer shall require any successor or assign to expressly assume and agree to perform this Agreement in the same manner and to the same extent that Employer would be required to perform it if no such succession or assignment had taken place. Except to the extent the context otherwise requires, the term the “Employer” as used herein shall include any such successors and assigns to Employer’s operations or assets.
This Agreement is for the personal services of Employee, being entered into by Employer in reliance on and in consideration of the personal skills, qualifications, experience and representations of Employee regarding such skill, qualifications and experience. Thus, neither this Agreement nor any right or interest hereunder shall be assignable or transferable by Employee, Employee’s administrators, executors, legatees, heirs, and other legal representatives, except by will or by the laws of descent and distribution. Any purported assignment or transfer shall be null and void and shall be cause for immediate dismissal of Employee and termination of this Agreement for cause.
15.Notices. Any notice to be given to a person hereunder shall be given by United States certified mail or by personal delivery (provided that within 24 hours a written copy of such transmission is deposited in United States certified mail or personally delivered), with return receipt by the addressee requested, and addressed, to Employer at its principal place of business, and to Employee at Employee’s address on the employment records of Employer, or at such other address most recently designated by that person for this purpose. Any notice shall be deemed given upon the date of receipt stated in the returned receipt or, if the address most recently specified by the addressee as provided above is not a valid address, the date of a returned receipt or other certification of the United States post office for such address certifying that the same is not a valid mailing address and that no forwarding address is known to such post office.
16.Amendment/Waiver. No amendment or waiver of any provision of this Agreement shall be implied by any failure of any party to enforce any remedy upon the violation of such provision, even if such violation is continued or repeated subsequently, and in no event shall any amendment or waiver of any provision of this Agreement be effective against any party hereto unless expressed in writing signed by that party. No express waiver shall affect any provision other than the one specified in such waiver, and that only for the time and in the manner specifically stated.
17.Construction. As used in this Agreement, the singular shall include the plural and any gender shall include all genders as the context requires. Unless the context otherwise requires, use of any form of the term “include” shall mean including without limitation; and use of the term “or” is not intended to be exclusive unless the context otherwise clearly requires.
18.Headings. The headings and captions are for convenience only and shall not be deemed to limit, construe, affect, or alter the meaning of the underlying provisions.
19.Severability. If any provision of this Agreement is or becomes invalid, illegal, or unenforceable in any jurisdiction for any reason, such invalidity, illegality, or unenforceability shall not affect the remainder of this Agreement, and the remainder of this Agreement shall be construed and enforced as if such invalid, illegal, or unenforceable portion were not contained herein.
20.Entire Agreement. This Agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitute a complete and exclusive statement of the terms of the agreement between the parties with respect to its
subject matter, except for any confidentiality, non-disclosure, non-disparagement, or similar agreements, which remain in full force and effect and are in addition to the covenants contained in this Agreement. No change, addition or amendment shall be made except by written agreement signed by all of the parties.
21.Counterparts/Electronic Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be one and the same instrument. Each party agrees that the electronic signatures of the parties included on this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.
22.Survival. Any provision of this Agreement that expressly, or by necessary implication, continues after termination of this Agreement, or Employee’s employment by Employer, shall survive the termination of this Agreement and Employee’s employment by Employer.
23.Governing Law/Jurisdiction/Venue. This Agreement shall be construed and enforced under and in accordance with the laws of the State of Nebraska without giving effect to the conflict of law principles thereof. All actions and proceedings to enforce the obligations of the parties under this Agreement shall be initiated in an appropriate state or federal court in Douglas County, Omaha, Nebraska to the exclusion of all other courts, and the parties consent to the jurisdiction and venue of any such court and waive any argument that venue in such forum is not convenient.
24.Code Section 409A Compliance. The intent of the parties is that payments and benefits under this Agreement comply with Section 409A of the Code, as amended, and the regulations and guidance promulgated thereunder (“Section 409A”), to the extent subject thereto, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate and distinct payment for purposes of Section 409A. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, Employee shall not be considered to have terminated employment with Company for purposes of any payments under this Agreement or any other arrangement between Employee and the Company which are subject to Section 409A until Employee would be considered to have incurred a “separation from service” from Company within the meaning of Section 409A. Company makes no representation that any or all of the payments described in this Agreement will be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to any such payment. Employee understands and agrees that Employee shall be solely responsible for the payment of any taxes, penalties, interest, or other expenses incurred under Section 409A.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement with the intent it be effective as of the Effective Date.
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NICHOLAS FINANCIAL, INC. By: /s/ Mike Rost Name: Mike Rost Title: Chief Executive Officer |
CHARLES KREBS By: /s/ Charles Krebs Name: Charles Krebs |
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