Paraclete Ministry Group, LLC
Name of the Agreement: EMPLOYMENT AGREEMENT
Effective Date: As of
Company: Paraclete Ministry Group, LLC, a Missouri Limited Liability Company
Starting Fee Rate:
A. Company is engaged in the business of providing counseling services to the general public;
B. Employee has education, training and/or work experience that is valuable to Company;
C. Company desires to utilize the education, training and/or work experience of Employee in Company’s business;
D. Employee desires to be trained in Confidential Business Information (as defined in DEFINITIONS) utilized by Company resulting in Company’s success in highly competitive markets;
E. Company will grant access to and train Employee in Confidential Business Information (as defined in DEFINITIONS), and Company will invest significant resources promoting Employee’s professional presence in Company’s Practice Markets (as defined in DEFINITIONS) representing a significant investment by Company and a legitimate business interest that Company wants to protect;
F. Company will utilize the services of Employee in Company’s business only if Employee enters into this Agreement.
ACCORDINGLY, Company and Employee agree as follows:
“Agreement” means this Employment Agreement and all Schedules, Exhibits, and amendments, as each is amended from time to time.
“Confidential Business Information” means assets, trade secrets, goodwill, specific methodologies utilized by Company, and other valuable information regarding various insights, techniques, and approaches to clients, referral sources, and short- and long-term marketing plans vital to the Company’s success.
“Effective Date” means the date the agreement is effective as stated in the preamble, irrespective of the actual date on which the parties execute the agreement.
“Practice Markets” means a 25 mile radius surrounding office locations.
“Work” means the Employee’s performance of the Employee’s duties as defined in an Exhibit identified as “Position Description” attached hereto and incorporated herein by reference, as amended from time to time.
“Term” has the meaning specified in Section 1.3
Performance and Considerations
1. Employment. Subject to the provisions of this Agreement, the Company shall hire the Employee, and the Employee shall Work for the Company for the Term.
2. Compensation and Benefits. Company and Employee have established what is believed to be fair guidelines for compensation and benefits, which has been set forth in an Exhibit identified as “Compensation and Benefits Schedule” attached hereto and incorporated herein by reference, and Company shall pay Employee as set forth in the “Compensation and Benefits Schedule”, as amended from time to time.
3. Term. This Agreement’s term begins on the Effective Date and continues for a period of three (3) years. It automatically renews for successive one-year terms, unless either party exercises its option to terminate this Agreement. (The initial three-year period and each successive one-year renewal, a “Term.”)
Representations and Warranties
Employee represents and warrants to Company the following as of the date of this Agreement:
1. Authority to Contract. Employee is authorized to enter into and perform its obligations under this agreement “Authority to Contract”.
2. Ability to Perform. Employee possesses the abilities, skills, and professional competencies necessary to perform Work. “Ability to Perform”.
3. Absence of Conflict. The execution of this Agreement and the performance of the obligations of the Employee hereunder will not breach or be in conflict with any other agreement to which the Employee is a party or is bound and that Employee is not now subject to any covenants against competition or similar covenants that would affect the performance of the Employee hereunder “Absence of Conflict”.
4. Conditions for Employment. If Employee’s Position Description includes or at any point comes to include providing counseling services, Employee shall:
4.1. Maintain professional liability insurance covering the conduct of Employee and naming Company as an additional insured party and shall deliver appropriate evidence to Company as proof that adequate insurance is in force issued by companies reasonably satisfactory to Company.
4.2. Maintain unencumbered, unqualified, and unconditional professional licensure with the state(s) in which Employee will practice as is necessary to perform professional counseling services.
Employee warrants to Company as follows:
1. Warranty. Employee will maintain at all times, the Authority to Contract, the Ability to Perform, the Absence of Conflict, and the Conditions for Employment, as defined in Sections 2 for the duration of the Agreement, including in the event of change in Employee’s position with the Company.
Covenants and Rights
1. Best Efforts. Employee shall put forth Employee’s best efforts to perform the Work. Employee shall not engage in any activity or business enterprise with similarity to Employee’s Work for Company, regardless of whether for pay or volunteer, without written consent of Company.
2. Performance Standards. Employee shall perform services for Company in accordance with the standards of practice set forth in an Exhibit identified as “Standards of Practice” and “Code of Ethics” attached hereto and incorporated herein by reference, as amended from time to time.
3. Indemnification. Employee agrees to indemnify Company for any damage, injury or loss which Company may suffer through Employee’s breach of this agreement.
4. Change of Position. Company may, at its sole discretion, change the position title and/or Position Description of Employee, whenever is necessary or beneficial to Company.
5. Assignment of Clients. Company shall, at its sole discretion, assign established or incoming clients to such counselor(s) as Company deems to be in the best interest of such clients.
6. Contractual Authority. Employee shall have no authority to bind Company to any contractual obligations.
Termination and Damages
1. Option to Terminate at End of Term. To exercise its option to terminate at the end of a Term, a party must deliver a written notice of termination or a written request for a proposed change to the other party that is received no later than ninety (90) days before the last day of the then existing Term.
1.1. If a written notice of termination is tendered by either party to the other, this Agreement shall terminate upon completion of the then current term.
1.2. If a written proposal for change is submitted by either party ninety (90) days prior to the end of the term, the other party shall respond in writing not less than thirty (30) days after receipt of said proposed change, either accepting the proposal, rejecting the proposal, or making a counterproposal. If time runs out on the then-current term at a time when the parties have not agreed upon changes in terms, this Agreement shall terminate on the last day of the current term and shall not renew.
2. Termination for Good Reason. Employee may terminate this Agreement for good reason if, at any time during the Term hereof, any of the following should occur:
2.1. The Employee becomes mentally or physically incapacitated and is unable to fulfill Employee’s duties.
2.2. Employee’s family member becomes incapacitated requiring Employee’s ongoing care to a degree it severely inhibits Employees ability to fulfill Employee’s duties.
3. Grounds for Termination. Company may, at its sole discretion, terminate this Agreement for cause if, at any time during the Term hereof, any of the following should occur:
3.1. Employee forfeits his/her license to practice.
3.2. Employee, at the determination of the Company, becomes mentally or physically incapacitated.
3.3. Employee breaches any obligations required hereunder.
3.4. Employee attempts to wrongfully terminate Agreement.
3.5. Employee’s actions or statements are deemed by Company to cause harm or loss of reputation to the Company.
4. Automatic Termination. This Agreement shall be automatically terminated if, at any time during the Term hereof, any of the following should occur:
4.1. Company should be required, for reasons beyond its control, to terminate operation.
4.2. The death of Employee.
5. Payments Following Termination. Payments earned by the Employee while not in breach of this Agreement shall be paid to Employee as scheduled or promptly after the end of the term, despite the fact that the Agreement has been terminated for a period of one year.
6. Damages for Wrongful Termination. Employee recognizes and acknowledges that Company will make a significant investment of resources into promoting Employee’s professional practice and assigning clients to Employee, which represents a legitimate business interest to Company, which, given the special nature of counseling services, cannot be easily replaced by hiring a new Employee, thus the wrongful termination of this Agreement would result in significant loss to Company. Accordingly Employee agrees:
6.1. Company is entitled to liquidation damages for lost revenue of not less than the greater of $100 or 35% of the average monthly gross sales of Employee, calculated by averaging the highest grossing three (3) months in the twelve (12) months preceding termination, per month remaining in the then-current Term, if Employee terminates this Agreement for reasons other than provided for in Section 4.2 Termination for Good Reason, or is terminated for cause, or breaches any obligations hereunder.
6.1.1.Employee shall pay liquidated damages under this Section to Company in either a lump sum within thirty (30) days of termination or in equal and consecutive monthly installments on or before the tenth (10th) day of each month following termination until fully satisfied, not to exceed 12 installments.
6.2. Employee shall be entitled to liquidation damages of $100 per month remaining in the then-current Term, if Company terminates Employee for reasons other than provided for in Section 4.3 Termination for Cause or Section 4.4 Automatic Termination.
6.2.1.Company shall pay liquidated damages under this Section, if any, to Employee in either a lump sum within thirty (30) days of termination or in equal and consecutive monthly installments on or before the tenth (10th) day of each month following termination until fully satisfied.
7. Works for Hire. All writings, inventions, creations, of Employee related to Employee’s Work shall be considered works for hire and remain the intellectual property of Company following termination of this Agreement and Company shall have the sole right to said works for hire.
8. Return of Company’s Property. Upon termination of this Agreement for any reason including a non-renewal the then current term, all of Company’s property in the possession of Employee, including but not limited to Company’s confidential client charts and information, Confidential Business Information including data, programs, and records in whatever form and however preserved, whether digital or otherwise, computer equipment, passwords, access to company computers, software and programs, keys to the premises, and any and all other property of the Company shall immediately be returned by Employee to Company.
9. Confidentiality. Employee recognizes and acknowledges that Employee will, of a necessity, have access to private and confidential information concerning Company’s clients which has been entrusted to Company for diagnosis and treatment purposes. Accordingly, Employee agrees that Employee will never disclose the identity of Company’s clients nor any of the private and confidential information of such clients to any third party.
9.1. Employee further recognizes and acknowledges that Employee will, of a necessity, have access to private and Confidential Business Information to which Employee would not have access but for his employment relationship with Company. Employee agrees that such business information which is confidential, valuable, special, and unique to Company’s business and, for the purposes of this Agreement, constitutes Company’s trade secrets. Accordingly, Employee agrees that Employee will never disclose such confidential valuable, special, and unique business information to any third party.
9.2. In the event of a breach or threatened breach of the provisions of this Section by Employee, Company is entitled to an injunctive relief restraining and enjoining Employee from such conduct. The availability of injunctive relief shall in no manner limit or prohibit Company from pursuing any other remedies available to Company for such breach or threatened breach, including recovery of damages from Employee.
10. Non-Solicitation and Non-Compete. Employee recognizes and acknowledges Company will grant access to and train Employee in Confidential Business Information, and Company will invest significant resources promoting Employee’s professional presence in Company’s Practice Markets representing a significant investment by Company and a legitimate business interest that Company wants to protect. Accordingly, Employee agrees during the Term of this Agreement and for two (2) years immediately following the termination of this Agreement, regardless of who initiated the termination or under what conditions termination occurred:
10.1. Employee shall not solicit or service for Employee’s benefit, or for the benefit of any other person or entity, any of Company’s clients,
10.2. Employee shall not, directly or indirectly, engage in any business or activity similar to Work done for Company hereunder, for Employee’s benefit or for the benefit of any entity or person, either individually or in any other individual or representative capacity, including, without limitation, as employee, consultant, agent, stockholder, owner, director, partner, principal or member of any other agency, entity, or person anywhere within twenty-five (25) miles of any Practice Markets of Company, unless the Company expressly and in its sole discretion waives in writing Employee’s compliance with this provision;
10.3. provided, however, that nothing contained herein shall be construed to prevent Employee from investing in the stock of any corporation listed on a national securities exchange or traded in the over-the-counter market so long as Employee is not involved in the day to day business of such corporation and Employee does not own more than five percent (5%) of the stock of such corporation.
10.4. In the event of a breach or threatened breach of the provisions of this Section by Employee, Company is entitled to an injunction restraining Employee from any such conduct. The availability of injunctive relief shall in no manner limit or prohibit Company from pursuing any other remedies available to Company for such a breach or threatened breach, including the recovery of damages from Employee.
10.4.1. Notwithstanding any other provisions of this Agreement, Company is entitled to liquidated damages equal to 35% of gross revenues from any business activities derived from the service of clients in breach of the provisions of this Section.
10.4.2. Employee shall pay Company liquidated damages under this Section on the tenth (10th) day of the month following the receipt of said revenues.
10.4.3. Company shall be entitled to and Employee shall grant access to, at Company’s request, during regular business hours any and all financial records documenting receipts believed by Company to be in breach of the provisions of this Section.
10.5. If any of the restrictions on competitive or other activities contained in this provision shall for any reason be held by a court of competent jurisdiction to be excessively broad as to duration, geographic scope, activity or subject, such restrictions shall be construed so as thereafter to be limited or reduced to be enforceable to the extent compatible with the applicable law; it being understood and agreed that by execution of this Agreement, (a) the parties agree that such restrictions are reasonable and compatible with their respective rights and (b) the Employee acknowledges and agrees that the restrictions will not prevent Employee from obtaining gainful employment subsequent to the termination of employment.
11. Protected Entities. Sections 4.9 (regarding confidentiality) and 4.10 (regarding non-solicitation and non-compete) shall apply to Employee in regards to Company and all entities related to Company by shared ownership or governance.
1. Limitation to Claims. Employee agrees that any action or suit against Company arising out of any employment or termination of employment, including but not limited to claims arising under the State or Federal civil rights statutes, must be brought within one year of the event giving rise to the claim or be forever barred. Employee waives any statute of limitations to the contrary.
2. Dispute Resolution. If any dispute arises among the parties under or relating to this Agreement that the parties cannot resolve voluntarily among themselves, they shall seek to resolve the dispute:
2.1. Informal Mediation. First by consulting with mutually agreed upon informal mediators comprised of one (1) mediator chosen by Employee, one (1) mediator chosen by Company, and the District Superintendent of the Assemblies of God Southern Missouri District or a mutually agreed upon substitute.
2.2. Formal Mediation. If the parties cannot resolve the dispute with the help of informal mediators then they shall seek to resolve the dispute by formal mediation
2.2.1.Any formal mediation under this Section shall be governed by t the Commercial Mediation Procedures of the American Arbitration Association (the ”AAA”) as in effect on the date of commencement of the mediation
2.2.2.In any claim under or relating to this Agreement the claimant shall bear the burden of proving the claim and the claim shall be deemed to have been proven if supported by a preponderance of evidence.
2.2.3.Either party may initiate mediation under this Agreement by giving the other party written notice of mediation. This notice shall bear a current date and shall briefly state the matter or matters to be mediated.
2.2.4.Unless the parties agree otherwise at the time, within 10 business days after both parties have received notice the members shall agree upon a mediator, the site of the mediation and the method of administering the mediation. They shall commence mediation as promptly as reasonably possible after reaching agreement on these matters.
2.2.5.If within the above 10 business days, the parties cannot agree on any of the matters, then, unless the parties agree otherwise, the Company shall promptly give a written notice of the mediation to the AAA and the AAA shall administer the mediation.
2.2.6.Each party in any mediation shall bear the party’s mediation expenses.
2.3. Mandatory Arbitration. If any dispute arises among the parties under or relating to this Agreement that the parties cannot resolve voluntarily among themselves or by mediation, then, unless the parties agree otherwise at the time, they shall resolve the dispute by arbitration.
2.3.1.Any arbitration under this Section shall be governed by t the Commercial Mediation Procedures of the American Arbitration Association (the ”AAA”) as in effect on the date of commencement of the mediation
2.3.2.In any claim under or relating to this Agreement the claimant shall bear the burden of proving the claim and the claim shall be deemed to have been proven if supported by a preponderance of evidence.
2.3.3.Either party may initiate arbitration under this Agreement by giving the other party written notice of arbitration. This notice shall bear a current date and shall briefly state the matter or matters to be arbitrated.
2.3.4.Unless the parties agree otherwise at the time, within 10 business days after both parties have received notice the members shall agree upon an arbitrator, the site of the arbitration and the method of administering the arbitration. They shall commence arbitration as promptly as reasonably possible after reaching agreement on these matters.
2.3.5.If within the above 10 business days, the parties cannot agree on any of the matters, then, unless the parties agree otherwise, the Company shall promptly refer the matter or matters in the notice for administration by the office of the AAA located in the city of Springfield, Missouri; and the AAA shall select the arbitrator and the site of the arbitration in accordance with the Commercial Arbitration Rules and shall administer the arbitration.
2.3.6.Except as provided in Sections 184.108.40.206.1 and 2 each party in any arbitration shall bear the party’s arbitration expenses, including legal fees.
220.127.116.11. If an arbitrator determines that a party has initiated an arbitration under this Section 5.2.3 without a reasonable basis for doing so or that any claim, argument or other action of a party in the arbitration is unreasonable, the arbitrator shall to that extent asses against that party the expenses incurred by the other party in connection with the arbitration, including reasonable attorney’s fees and fees payable the arbitrator.
18.104.22.168. To the extent that an arbitrator determines that a member has failed to prevail in an arbitration under this Section 5.2.3, the arbitrator shall to that extent allocate to that member the costs of the arbitration, including reasonable attorney’s fees and fees payable to the arbitrator.
2.3.7.In deciding arbitration under this Section 5.2.3, the arbitrator shall apply the substantive law of the State of Missouri; however, matters relating to the enforceability of this Section 5.2.3 and to any award granted under this Section shall be governed by the Federal Arbitration Act.
2.4. Matters That Parties May Litigate. Notwithstanding any other provision of this Agreement, any party may bring suit in a court of competent jurisdiction to:
2.4.1.Petition a court for injunctive relief with respect to a matter arising under or relating to the Agreement;
2.4.2.Obtain judicial enforcement of an order granted by an arbitrator under Section 5.2.3; or
2.4.3.As otherwise permitted under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “Federal Arbitration Act”).
3. Applicable Law and Consent to Jurisdiction. Subject to Section 5.2.3 (relating to the Federal Arbitration Act), this Agreement was entered into in the State of Missouri and any disputes arising hereunder shall be governed by the laws of the State of Missouri. The parties agree to submit to the jurisdiction and venue of the Circuit Court of Greene County, Missouri, for resolution of any and all disputes arising under this Agreement.
4. Integration & Merger. This agreement contains the entire agreement among the parties concerning its subject matter, and it replaces all prior agreements among them, whether written or oral, concerning this subject matter.
5. Amendments. Company may amend this Agreement from time to time. This agreement shall only be modified by a written amendment signed by an authorized officer of Company.
6. Survival. Upon the expiration or termination of this Agreement, the obligations of the parties to each other shall come to an end, except that the provisions of Section 4.6 (regarding damages for wrongful termination), Section 4.9 (regarding confidentiality), and Section 4.10 (regarding non-solicitation and non-compete) shall survive.
7. Change of Ownership. This Agreement remains in force in the event Company has a change in ownership.
8. Assignment. This Agreement is personal to Employee and Employee may not assign or delegate any of the Employee’s rights or obligations hereunder. This Agreement shall inure to the benefit of Company, its successors, and assigns.
9. Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement shall not be construed as thereafter waiving any such terms or conditions, but the same shall continue and remain in full force and effects as if no such forbearance or waiver had occurred.
10. Effect of Partial Invalidity. The invalidity of any portion of this Agreement shall not be deemed to affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. In the event a court of competent jurisdiction determines that any portion of the non-solicitation and non-competitive portions of this agreement are too restrictive as written for the status of Missouri law then in effect, but would be valid if such provisions were less restrictive, the parties stipulate and agree for the court to modify the non-solicitation and non-competitive provisions to make them enforceable to the greatest extent permitted under the then current law.
11. Section Headings. The titles on the Sections of this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of, the provision of this Agreement.
12. Notices. Any notice provided for or required by this Agreement shall be hand-delivered to the person to whom such notice is addressed, or mailed to such person by registered mail, return receipt requested, addressed to Company at the following address:
2131 S EASTGATE AVE
SPRINGFIELD, MO 65809
And Employee at the following address:
13. Cost and Expenses Related to Enforcement of Agreement. Employee and Company agree that, in the event either party brings a suit at law or in equity to enforce this Agreement, or for any claim of breach or threatened breach from which the Offending party later retreats or ceases the conduct out of which the suit arose, including the non-solicitation or non-compete provisions of this Agreement, the prevailing party shall be entitled to reimbursement of all attorney’s fees, court costs, and suit monies expended in the enforcing said Agreement or for any claim of breach or threatened breach even if the alleged breaching party retreats or ceases the conduct out of which the suit arose.
To evidence the parties’ agreement to this Employment Agreement’s provisions, the parties have executed and delivered this agreement on , but as of the “effective date” set forth in the preamble.
Company: Paraclete Ministry Group, LLC
By: Josh Spurlock, Managing Member
EMPLOYEE ACKNOWLEDGES HE/SHE HAS READ AND UNDERSTANDS THIS
AGREEMENT, AND HAS BEEN GIVEN THE OPPORTUNITY TO CONFER WITH
LEGAL COUNSEL PRIOR TO SIGNING.
By: , Employee
Prepared by Josh Spurlock, MA, LPC In consultation with Law Offices of Rick E. Temple, LLC 1358 E. Kingsley, Ste. D Springfield, Missouri 65804
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Document Name: Employment Agreement
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