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Exhibit
10.1
EXECUTION
COPY
CHIEF EXECUTIVE OFFICER
EMPLOYMENT AGREEMENT
AGREEMENT effective
September 1, 2007, between FCStone, Group, Inc., and Paul G.
Anderson.
1. Employment. FCStone
Group, Inc., (hereinafter referred to as “Employer”)
employs Paul G. Anderson (hereinafter referred to as
“CEO”) as Chief Executive Officer of Employer, and CEO
accepts full-time employment, upon the terms and conditions set
forth in this Agreement. For purposes of this Agreement, while
Employer shall be the CEO’s employer of record, the term
“Employer” shall be defined as including
Employer’s subsidiaries as the context requires. The
agreements contained herein are in consideration of CEO’s
continued employment, and are in place of all previously
established agreements and understandings between the Employer, its
subsidiaries and CEO. Without limiting the generality of the
foregoing, this Agreement supersedes and replaces the “Chief
Executive Officer Employment Agreement” dated
September 1, 2005, between FCStone, LLC and Paul G.
Anderson.
2. Annual Review.
CEO’s performance shall be reviewed each year by the Board of
Directors of Employer (the “Board”), or by the
Compensation Committee of the Board (the “Compensation
Committee”). As part of the review, the Board shall review
CEO’s Base Salary and may approve an increase, but not a
decrease to CEO’s Base Salary. Such review shall be completed
and communicated to CEO between the end of Employer’s fiscal
year and the annual meeting of the Board.
3. Term of Employment. The
term of CEO’s employment under this Agreement
(“Term”) shall begin on September 1, 2007 and
shall end on August 31, 2012. During the Term,
Employer’s employment under this Agreement can be terminated
by Employer or CEO pursuant to Paragraphs 9 and 10,
respectively.
4. Compensation and
Benefits. As compensation for all services by CEO under
this Agreement, CEO shall be entitled to the following compensation
during the Term:
a. Base Salary.
CEO shall be paid an annualized Base Salary of $550,000, or as
increased by the Board from time to time. Base Salary, as adjusted
by the Board, shall be considered the new Base Salary for purposes
of this Agreement. CEO’s Base Salary shall be payable in
accordance with Employer’s regular payroll practices and
shall be subject to applicable required withholding and authorized
deductions. Execution of this Agreement by CEO shall constitute
written authorization for Employer to make the withholdings from
CEO’s compensation as provided by this Sub-paragraph
4(a).
b. Annual Bonus
Opportunity. Employer agrees that CEO shall be eligible to
receive an annual performance bonus (“Annual Bonus”)
from Employer with respect to each fiscal year of Employer that
ends during the Term, subject to the terms and conditions as set by
the Board or Compensation Committee. Prior to or within the first 3
months of each fiscal year, the Compensation Committee,
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in consultation with CEO, shall identify
the performance and other bonus eligibility criteria by which
CEO’s bonus eligibility shall be determined for that fiscal
year. The amount of any such Annual Bonus shall be determined by
the Board or the Compensation Committee in its discretion,
consistent with Employer’s performance, CEO’s
contribution to Employer’s performance and any other bonus
eligibility criteria set for that fiscal year. The parties agree
that the threshold bonus opportunity shall be set at 125% of Base
Salary, the annual target bonus opportunity shall be set at 200% of
Base Salary; and there shall be no cap on the amount of Annual
Bonus. The Annual Bonus, if any, shall be payable within 60 days of
the end of the fiscal year in which it was earned. In order to be
eligible to receive the Annual Bonus for a given fiscal year, CEO
must be employed on the last day of the fiscal year in which the
Annual Bonus was earned.
c. Long-Term Incentive
Awards. Employer further agrees that CEO shall be eligible
to receive annual long-term incentive (“LTI”)
compensation with respect to each fiscal year of Employer that ends
during the Term, subject to the terms and conditions as set by the
Board or Compensation Committee in the FCStone Group, Inc.
Executive Long Term Incentive Plan in effect for the then current
fiscal year. Prior to or within the first 3 months of each fiscal
year, the Board or Compensation Committee, in consultation with
CEO, shall identify the performance and other eligibility criteria
by which CEO’s LTI award shall be determined for that fiscal
year. For fiscal year 2008, the Compensation Committee has agreed
to use the same criteria for LTI as used for the Annual Bonus in
Sub-paragraph 4(b) and has agreed that CEO’s LTI opportunity
shall be based on the following schedule (For further details, see
the FCStone Group, Inc. Executive Long Term Incentive Plan
Effective Fiscal Year 2008):
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| Annual
Threshold LTI Opportunity: |
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150% of
Base Salary |
| Annual
Target LTI Opportunity |
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300% of
Base Salary |
| Annual
Maximum LTI Opportunity: |
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600% of
Base Salary |
The Board or Compensation Committee, in
its discretion, shall decide whether the annual LTI will be awarded
in the form of a Full-Value Award, such as restricted stock, or in
the form of an Appreciation-Only Award, such as stock settled stock
appreciation rights, or as a combination of Full-Value Awards and
Appreciation-Only Awards. If the annual LTI award is an
equity-based award, then the calculation to determine the number of
shares underlying the Full-Value Award and/or the Appreciation-Only
Award shall be determined by calculating the “fair
value” of such award in accordance with Statement of
Financial Accounting Standards No. 123R. The LTI award, if
any, shall be awarded within 90 days of the end of the fiscal year
in which it was earned, and shall vest 25% on each of the first 4
anniversaries of the date of grant. If the LTI award is an
Appreciation-Only Award, the exercise price of such award shall be
the fair market value of a share of Employer’s common stock
on the date of grant. In order to be eligible to receive the LTI
award for a given fiscal year, CEO must be employed on the last day
of the fiscal year in which the LTI award was earned. The parties
agree that, with respect to CEO, this Sub-paragraph 4(c) replaces
and supersedes any previous long-term or short-term incentive
plans, programs or policies of Employer or its affiliates in which
CEO has been eligible in the past.
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d. Executive
Benefits. CEO will be eligible to participate in all
employee and executive pension and welfare benefit plans and
programs, fringe benefits and perquisites generally available to
Employer’s senior executives, as amended from time to time.
CEO will have access to the company aircraft for business travel as
stipulated by company policy and procedures. CEO will be entitled
to first-class air (to the extent that CEO is not using the company
aircraft) and ground travel and accommodations while traveling on
business for Employer.
e. Expenses.
CEO may incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and for promoting
Employer’s business, including expenses for entertainment,
travel and similar items. Subject to applicable tax and other laws,
Employer will reimburse CEO for all such reasonable expenses upon
CEO’s periodic presentation of an itemized account of such
expenditures, with substantiation, in accordance with
Employer’s regular policies as established from time to time.
In addition to the general reimbursable expenses pursuant to
Employer’s policies and practices, CEO also shall be entitled
to prompt reimbursement for the reasonable cost and value of
CEO’s personally owned property and facilities utilized for
entertainment on behalf of Employer, subject to applicable tax
laws.
f. Paid Time
Off. CEO shall be entitled to earn and carry-over Paid Time
Off (“PTO”) pursuant to Employer’s then-current
PTO policy, but in no event shall CEO be entitled to earn less than
20 days of PTO per year and carry over up to 10 days of unused PTO
to be used in the next calendar year. The scheduling of CEO’s
PTO shall be within the sole discretion of CEO, but shall be
scheduled to be consistent with and not conflict with CEO’s
duties.
g. Leaves of
Absence. CEO shall be granted leaves of absence for
sickness, medical conditions of CEO or members of his family, jury
duty, military training and other reasons deemed appropriate by
Employer, as governed by Employer’s then- current
policies.
5. Titles, Duties and
Responsibilities, Reporting. During the Term, CEO shall
serve as Employer’s President and Chief Executive Officer and
also shall serve as an officer of such other subsidiaries of
Employer as the Board shall direct. CEO shall be responsible for
the general management and operation of Employer and shall have
such other duties as may be from time to time reasonably and
lawfully assigned by the Board. CEO shall report solely and
directly to the Board. CEO further agrees to accept re-election and
to serve during all or any part of the Term as a director of
Employer without any compensation therefor other than that
specified in this Agreement, if re-elected to such position by the
shareholders of Employer. Employer shall re-nominate CEO to be a
director of the Board and shall use its best efforts to cause CEO
to be re-elected as a director, subject to approval as required by
Employer’s by-laws and governing Board rules and
regulations.
6. Scope of Service. CEO
shall devote substantially all of his entire time, attention and
energies to Employer’s business and shall not during the Term
be engaged in any other business activity whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage, without the written permission of the Board. However,
CEO may invest and manage his personal assets in such
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form or manner as will not require
CEO’s services in the operation of the affairs of the
companies in which such investments are made. Additionally, CEO may
participate in corporate, trade organization or charitable board
memberships that do not materially conflict with his employment
with Employer or materially interfere with his employment duties,
provided that CEO first discloses any such proposed memberships to
the Board.
7. Compliance with Laws,
Regulations, Rules and Policies. During the Term, CEO shall
perform CEO’s duties faithfully and diligently and in
compliance with all applicable laws, regulations, Employer
policies, handbooks, and manuals, and reasonable and lawful
direction from the Board. Such compliance with laws and regulations
shall include, but not be limited to, compliance with the Commodity
Exchange Act, the rules and regulations of the Commodity Futures
Trading Commission, and the rules and regulations of all exchanges
and clearing corporations on which Employer or other FCStone
companies transact business. CEO shall also comply with all
Employer policies respecting ethics, trading in Employer and
affiliated companies’ stock, and all applicable rules and
regulations of the Securities and Exchange Commission.
8. Indemnification. CEO
shall be entitled to indemnification by Employer in accordance with
the provisions of Employer’s by-laws and the implementing
Board resolutions as in effect on the date of this Agreement or, if
more favorable to CEO, the provisions of such by-laws as in effect
at the time indemnification is requested. During the Term and
during the 6 year period immediately following the Term, Employer
shall maintain a directors’ and officers’ insurance
policy (“D&O Policy”) at the same or greater levels
as the levels in the D&O policy in place on the date this
Agreement becomes effective.
9. Termination by
Employer. During the Term, Employer may terminate
CEO’s employment if any one or more of the following shall
occur:
(a) Death. CEO
shall die during the Term; provided, however, that CEO’s
legal representatives shall be entitled to receive
(1) CEO’s Base Salary and reimbursable business expenses
incurred up through the date of CEO’s death; (2) earned
but unpaid Annual Bonus, if any, due CEO under this Agreement;
(3) a pro-rata Annual Bonus based on actual bonus, determined
and paid out at the end of the fiscal year, with respect to the
fiscal year of Employer during which death occurs; and (4) any
other vested and accrued compensation and benefits due CEO under
this Agreement or other plan, policy, program, agreement or
arrangement of Employer. Upon CEO’s death, he shall become
fully vested in all LTI awards, stock awards options and similar
equity rights, and all such rights shall become immediately
exercisable and remain exercisable for one year from the date of
CEO’s death. Employer shall pay the group health insurance
continuation premiums for CEO’s eligible dependents to the
extent and for as long as they are eligible for continuation rights
under COBRA.
(b) Disability.
CEO shall become physically or mentally disabled, by meeting the
definition of disability under Employer’s Long-Term
Disability Insurance Policy (“LTD Policy”) or, if there
is no LTD Policy, as determined by a licensed physician
mutually
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selected by Employer and CEO that CEO is
unable substantially to perform his duties and responsibilities
hereunder for (1) a period of 180 consecutive days; or
(2) for shorter periods aggregating 180 days during any
twelve-month period (collectively referred to as the
“Disability Period.”). In the event that Employer and
CEO cannot agree on a licensed physician to make the disability
determination, each party shall select a licensed physician and the
two licensed physicians shall select a third licensed physician to
make the disability determination for purposes of this provision.
Employer shall continue to pay CEO his compensation, less any short
term disability (“STD) benefits or long-term disability
(“LTD”) benefits that CEO receives through
Employer’s STD or LTD policy or plan, benefits and
reimbursable business expenses up through the Disability Period.
The last day of the Disability Period shall be the date of
termination of CEO’s employment for purposes of this
Agreement. If Employer terminates CEO’s employment due to
disability, CEO shall receive (1) earned but unpaid Annual
Bonus, if any, due CEO under this Agreement; (2) a pro-rata
Annual Bonus based on actual bonus, determined and paid at the end
of the fiscal year, with respect to the fiscal year of Employer
during which disability occurs; and (3) any other vested and
accrued compensation and benefits due CEO under this Agreement or
other plan, policy, program, agreement or arrangement of Employer.
Upon CEO’s disability, he shall become fully vested in all
LTI awards, and stock awards options and similar equity right and
all such rights shall become immediately exercisable and remain
exercisable for one year from the date of CEO’s date of
termination. Employer also shall pay the group health insurance
continuation premiums for CEO’s eligible dependents to the
extent and for as long as they are eligible for continuation rights
under COBRA.
(c) For Cause.
CEO acts, or fails to act, in a manner that provides Cause for
termination of employment. For purposes of this Agreement, the term
“Cause” means (i) any material breach by CEO of
any material term of this Agreement; (ii) the willful and
continued failure of CEO to perform his duties hereunder;
(iii) CEO willfully engages in acts of misconduct that
materially impact the goodwill or business of Employer;
(vi) CEO willfully breaches a fiduciary trust for personal
profit; or (v) CEO willfully violates any law, rule or
regulation; provided, however, that no termination under
(i) or (ii) above shall be effective unless the CEO does
not cure such refusal or failure to the Board’s good faith
satisfaction as soon as practicable after the Board gives the CEO
written notice identifying with specificity such breach or failure
(and, in any event, within 30 calendar days after receipt of such
written notice). No act or failure to act on the part of the CEO
shall be considered “willful” unless it is done, or
omitted to be done, by the CEO in bad faith or without reasonable
belief that his action or omission was in the best interest of
Employer.
Employer shall give CEO written notice
of its decision to terminate CEO’s employment for Cause and
shall state the date of termination within the notice. If Employer
terminates CEO’s employment for Cause, CEO only shall be
entitled to be paid for any unpaid Base Salary, reimbursable
business expenses and any vested and accrued compensation and
benefits due CEO under this Agreement or other plan, program,
policy, or agreement of Employer up through the date of termination
and shall be entitled to no further compensation and benefits after
the date of termination.
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(d) Change of
Control. In the event of a Change in Control (as defined in
the FCStone Group, Inc. Change in Control Severance Plan, as
amended from time to time (the “CIC Plan”), CEO’s
rights to payment upon Employer’s termination of CEO’s
employment for other than Cause (as that term is defined in the CIC
Plan), Disability, or Death or CEO’s termination of his
employment for Good Reason (as that term is defined in the CIC
Plan) in connection with a Change in Control shall be governed by
the terms of the CIC Plan. If during the Term, Employer terminates
or amends the CIC Plan in effect as of September 1, 2006, and
such action reduces or eliminates any or all of CEO’s
change-in-control benefits, then Employer shall provide CEO
immediately before the effective date of such action with either a
group or individual change-in-control agreement that provides
equivalent, on a benefit by benefit basis, change-in-control
benefits as provided under the CIC Plan.
(e) Without
Cause. If Employer terminates CEO’s employment for
any reason other than as described in Sub-paragraphs
9(a)-(d), the termination shall be deemed a termination
Without Cause. Employer shall give CEO written notice of its
decision to terminate CEO’s employment Without Cause and
shall state the date of termination within the notice. In that
event, CEO shall receive (1) any unpaid Base Salary and
reimbursable business expenses due up through the date of
termination; (2) earned but unpaid Annual Bonus, if any, due
CEO under this Agreement; (3) a pro-rata Annual Bonus based on
actual bonus, determined and paid at the end of the fiscal year,
with respect to the fiscal year of Employer during which the
termination occurs; (4) a lump-sum cash payment equal to 200%
of the sum of CEO’s current annual Base Salary and his prior
year Annual Bonus; and (5) any other vested and accrued
compensation and benefits due CEO under this Agreement or other
plan, policy, program, agreement or arrangement of Employer. Upon
CEO’s termination Without Cause, he shall become fully vested
in all LTI awards, stock awards, options and similar equity rights,
and all such rights shall become immediately exercisable and remain
exercisable for 2 years from the date of CEO’s termination.
In addition, Employer also shall pay retiree health insurance
premiums for CEO and his eligible dependents for 2 years. If
Employer’s retiree health insurance benefits is not equal to
or greater than Employer’s retiree health insurance benefits
in effect on the effective date of this Agreement, or if Employer
does not offer retiree health insurance benefits at the time of
termination of CEO or at any time during the 2-year period
immediately following the date of termination of CEO’s
employment, then Employer shall provide CEO and his eligible
dependents with alternative health insurance coverage equal to the
retiree health insurance coverage in effect on the effective date
of this Agreement for the 2-year period. (For example, if Employer
ceases to offer retiree health insurance benefits one year after
the date of the termination of CEO’s employment, then
Employer will provide CEO with alternative health insurance
coverage for the next year.)
10. Termination by CEO.
CEO may terminate his employment under this Agreement with or
without Good Reason on 30 days written notice to Employer.
Termination by CEO for “Good Reason” shall mean any of
the following occurring, without CEO’s prior written consent,
within the 90 day period immediately preceding CEO’s written
notice to Employer of his intent to terminate his employment
(i) the assignment to CEO of any duties materially
inconsistent with Paragraph 5, or any other action by the Board
that results in a diminution in the CEO’s posit
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