EMPLOYMENT AGREEMENT
This Agreement is effective as of August 16, 1999, by and between World
Acceptance Corporation (the "Company"), a South Carolina corporation and Xxxxxxx
X. Xxxxx (the "Executive").
The Company has determined that it would be in its best interests to
retain the services of the Executive for the Period of Employment (as defined in
Section III 3.1 below) and upon the terms provided in this Agreement. The
Executive is willing to serve in the employ of the Company on a full time basis
for said Period of Employment and upon such other terms and conditions as
provided in this Agreement.
In consideration of the mutual covenants and promises contained in this
Agreement, the parties hereby agree as follows:
SECTION I
EMPLOYMENT
The Company agrees to employ the Executive and the Executive agrees to
be employed by the Company, for the Period of Employment as defined in Section
III 3.1 below, and based upon the terms and conditions provided in the
Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
The Executive agrees to serve as the Company's PRESIDENT AND CHIEF
OPERATING OFFICER and to be responsible for the general affairs of the Company,
reporting only to the Chairman and Chief Executive Officer during the Period of
Employment, as defined in Section III 3.1 below. The Executive also agrees to
serve, if elected, during the Period of Employment as defined in Section III 3.1
below as an Officer of any subsidiary, affiliate, or parent corporation
("Affiliates") of the Company which the Board feels is appropriate.
SECTION III
TERMS AND DUTIES
3.1 PERIOD OF EMPLOYMENT
-1-
For purposes of this Agreement, the Period of Employment will commence
on August 16, 1999, and shall continue for a period of three (3) years, subject
to extension or termination as provided in this Agreement. At the end of the
initial three-year period commencing from the effective date of this Agreement,
the Company shall review the performance of the Executive, and this Agreement
shall be deemed to be approved and extended automatically for an additional one
(1) year period on the same terms and conditions, unless either the Company or
the Executive gives contrary written notice to the other no less than ninety
(90) days prior to the date on which this Agreement would otherwise be extended.
3.2 DUTIES
During the Period of Employment and except for illness, incapacity, and
reasonable vacation and holiday periods, the Executive shall devote all of his
business time, attention, and skill exclusively to the business and affairs of
the Company and its Affiliates. The Executive will not engage in any other
business activity, and will perform faithfully the duties which may be assigned
to him from time to time by the Chief Executive Officer of the Company.
Notwithstanding the above, nothing in this Agreement shall preclude the
Executive from devoting time during reasonable periods required for:
3.2.I. Serving, with prior approval of the Chief Executive Officer
of the Company, as a Director or member of a committee or
organization involving no actual or potential conflict of
interest with the Company;
3.2.II Delivering lectures and fulfilling speaking engagements;
3.2.III. Engaging in charitable and community activities; or
3.2.IV. Investing his personal assets in investments or business
entities in such form or manner that will not violate this
Agreement or require services on the part of the Executive
in the operation of affairs of the business entities in
which those investments are made. These activities will be
allowed as long as they do not materially affect or
interfere with the performance of the Executive's duties and
obligations to the Company.
SECTION IV
COMPENSATION, BENEFITS, AND PERQUISITES
For all services rendered by the Executive in any capacity during the
Period of Employment, including services as an Executive, Officer, or Committee
Member, the Executive shall be compensated as follows:
4.1 BASE SALARY
-2-
The Company shall pay the Executive a fixed base salary ("Base Salary")
at such annual rate as the Compensation Committee deems appropriate; provided,
however, that the fixed Base Salary may not be less than $175,000.00 per year.
Increases in Base Salary, once granted by the Committee, shall not be subject to
reduction. Base Salary shall be payable according to the customary payroll
practices of the Company. In no event shall Base Salary be payable less
frequently than once per calendar month.
4.2 ANNUAL INCENTIVE AWARDS
The Company may pay the Executive annual cash incentive compensation
payments provided that such annual incentive compensation payments are based on
certain pre-established performance criteria. At the beginning of each fiscal
year, the Board or Committee will establish appropriate criteria for making such
payments following the end of such fiscal year. The terms and conditions of such
incentive awards are set out more fully in the Company's "Executive Incentive
Plan" Plan Document. For purposes of this agreement the Annual Incentive Plan
payment amount for the fiscal year ending March 31, 2000, will be the actual
amount earned calculated on a full year basis or $120,000.00 whichever is
greater. Thereafter such payments will be made in accordance with actual earned
amounts per the Executive Annual Incentive Plan.
4.3 OTHER COMPENSATION/BENEFITS
The Compensation Committee may from time to time grant such other
compensation, stock options, or other long-term benefits as it may deem
appropriate commensurate with the executive's position, duties, and performance.
The intent of such other compensation awards is to motivate the achievement of
longer range and strategic goals.
4.4 BENEFITS AND PERQUISITES
4.4.I SALARIED EMPLOYEE BENEFITS
Executive will be entitled to participate in all compensation
and employee benefit plans and programs and receive all benefits and
perquisites for which any salaried employee of the Company is eligible
under any plan or program now or later established by the Company for
salaried employees. The Executive will participate to the extent
permissible under the terms and provisions of such plans or programs.
Nothing in this Agreement will preclude the Company from amending or
terminating any of the plans or programs applicable to salaried
employees as long as such amendment or termination is applicable to all
similarly situated salaried employees.
4.4.II SUPPLEMENTAL BENEFITS
The Company also will provide long-term disability insurance
which provides a benefit to the Executive of 60% of the Executive's
Base Salary in effect at the time of disability.
In the event a group long-term disability benefit is provided
by the Company for which the Executive becomes eligible, the
Executive's long-term disability benefits under this Agreement will be
offset by the benefits payable under the group policy such that
-3-
combined long-term disability benefits payable under the two plans do
not exceed 60% of the Executive's then current Base Salary.
4.5 AUTOMOBILE
The Company will provide an automobile (including maintenance and
insurance expense) of a value commensurate with his position for use by the
Executive.
SECTION V
BUSINESS EXPENSES
The Company will reimburse the Executive for all reasonable travel,
entertainment, business, and other expenses incurred by the Executive in
connection with the performance of his duties and obligations under this
Agreement.
SECTION VI
DISABILITY
6.1 In the event of disability of the Executive during the Period of Employment,
the Company will continue to pay the Executive in accordance with the
compensation provisions of this Agreement during the period of his disability.
However, in the event the Executive is disabled for a continuous period of
ninety (90) days or more, the Company may terminate the employment of the
Executive pursuant to this Agreement, and make payments to the Executive under
the terms of the long-term disability provisions of this Agreement. In the event
the Company terminates the employment of the Executive pursuant to this Section
VI, the Company will have no further compensation obligations to the Executive,
except for earned but unpaid Base Salary.
6.2 During the period the Executive is receiving payments, either regular
compensation or disability payments as described in this Agreement, and as long
as he is physically and mentally able to do so, the Executive will furnish
information and assistance to the Company and from time to time will make
himself available to the Company to undertake assignments consistent with his
prior position with the Company and his physical and mental health. During the
disability period, the Executive is responsible for reporting directly to the
Chief Executive Officer. If the Company fails to make a payment or provide a
benefit required as part of the Agreement, the Executive's obligation to fulfill
information and assistance will end.
6.3 The term "disability" will have the same meaning as under the disability
benefits to be provided pursuant to this Agreement, or such group disability
plan as may be in effect for similarly situated employees at that time. In the
event the definition of disability is not consistent, the definition contained
in the plan document of such group plan shall control.
-4-
SECTION VII
DEATH
In the event of the death of the Executive during the Period of
Employment, the Company's obligation to make payments under this Agreement shall
cease as of the date of death, except for Base Salary through the end of the
Company's normal payroll period prorated to the date of death. The Executive's
designated beneficiary will be entitled to receive the proceeds of any life or
other insurance or other death benefit programs provided in this Agreement.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
Except as otherwise set forth in Sections VI, VII, and IX:
8.1 If the Executive's employment terminates due to either a Without Cause
Termination or a Constructive Discharge, as hereafter defined in this Agreement,
the Company will pay the Executive, or in the event of his death, his
beneficiary or beneficiaries, severance pay at the annual rate of 100% of his
Base Salary as in effect at the time of termination for the remaining period of
the original term of this agreement or the remaining period of any subsequent
renewal term. In addition, the Company will pay any earned but unpaid Base
Salary through the date of termination and any earned but unpaid annual
incentive compensation payments. All other benefits and perquisites provided for
in Section IV 4.4 of this Agreement will be continued for the remaining period
of the original term of the agreement or the remaining period of any subsequent
renewal term whichever is applicable.
If the Executive is entitled to receive cash compensation subject to
federal income taxation, or to deferred compensation which would be taxable if
not deferred, for other employment or a consulting position with another Company
during the above-described period, the payments described in this Agreement will
be reduced respectively to the extent that benefits of the kind required by this
Agreement are paid as a result of the other employment. In addition, the
benefits resulting from the other employment shall be deemed primary coverage
for the purposes of coordination of benefits.
8.2 If the Executive's employment terminates due to a Termination for Cause, as
hereafter defined, the Company will pay to the Executive the Base Salary as then
in effect through the date of termination. No other payments will be made and
the Company will not be obligated to provide any other benefits to or on behalf
of the Executive.
8.3 If the Executive resigns from employment with the Company or gives notice of
non-renewal in accordance with Section III.3.1 hereof, the Company will pay his
Base Salary through the date of termination and any earned but unpaid annual
incentive compensation payments. No
-5-
other payments will be made and the Company will not be obligated to provide any
other benefits to or on behalf of the Executive.
8.4 Except as otherwise expressly provided in this Agreement and except for any
long-term incentive payments to which Executive may be entitled, upon
termination of the Executive's employment hereunder, the Company's obligation to
make payments or provide benefits under this Agreement will cease.
SECTION IX
DEFINITIONS
For this Agreement, the following terms have the following meanings:
9.1 Termination for Cause means termination of the Executive's employment by the
Company, by written notice to the Executive, specifying the event relied upon
for such termination, due to I. the Participant's gross misconduct in respect of
his duties for the Company, II. conviction for a felony or perpetration of a
common law fraud, III. failure to comply with applicable laws with respect to
the execution of the Company's business operations, IV. theft, fraud,
embezzlement, dishonesty or other conduct which has resulted or is likely to
result in material economic damage to the Company or any of its Affiliates, or
V. substantial dependence on or addiction to alcohol or use of drugs except
those legally prescribed by and administered pursuant to the directions of a
practitioner licensed to do so under the laws of the state or country of
licensure.
9.2 Constructive Discharge means termination of the Executive's employment by
the Executive due to a failure of the Company to fulfill its obligations under
this Agreement in any material respect, including any reduction of the
Executive's Base Salary, failure to appoint or reappoint the Executive to the
office of President and Chief Operating Officer or other material change by the
Company in the functions, duties, or responsibilities of the position which
would reduce the ranking or level, responsibility, importance, or scope of the
position. This would also include any assignment or reassignment by the Company
of the Executive to a place of employment other than the Company's present
headquarters in Greenville, South Carolina. The Executive will provide the
Company a written notice which describes the circumstances being relied on for
the Constructive Discharge with respect to the Agreement within ninety (90) days
after the event giving rise to the notice. The Company will have thirty (30)
days to remedy the situation prior to the Termination for Constructive
Discharge.
9.3 Without Cause Termination means termination of the Executive's employment by
the Company other than due to death or disability and other than Termination for
Cause and includes, without limitation, termination of the Executive's
employment by the Company's giving notice of non-renewal in accordance with
Section III.3.1 hereof.
-6-
SECTION X
OTHER DUTIES OF THE EXECUTIVE DURING AND
AFTER THE PERIOD OF EMPLOYMENT
During the Period of Employment and for 12 months thereafter:
10.1 The Executive will, with reasonable notice, furnish information as may be
in his possession and cooperate with the Company as may reasonably be requested
in connection with any claim or legal actions in which the Company is or may
become a party.
10.2 The Executive recognizes and acknowledges that all information pertaining
to the affairs, business, clients, customers, or other relationships of the
Company is confidential and is a unique and valuable asset of the Company.
Access to and knowledge of this information are essential to the performance of
the Executive's duties under this Agreement.
10.3 The Executive will not, except to the extent reasonably necessary in
performance of the duties under this Agreement or except as required by law,
give to any person, firm, company, corporation or governmental agency any
information concerning the affairs, business, clients, customers, or other
relationships of the Company. The Executive will not make use of this type of
information for his own purposes or for the benefit of any person or
organization other than the Company. The Executive will also use his best
efforts to prevent the disclosure of this information by others.
10.4 All records, memoranda, etc. relating to the business of the Company
whether made by the Executive or otherwise coming into his possession are
confidential and will remain the property of the Company.
10.5 The Executive will not use his status with the Company to obtain loans,
goods, or services from another organization on terms that would not be
available to him in the absence of his relationship with the Company.
10.6 The Executive will not make any statements or perform any acts intended to
advance the interest of any existing or prospective competitors of the Company
in any way that will injure the interest of the Company.
10.7 The Executive, without prior express written approval by the Board, will
not directly or indirectly own or hold any proprietary interest in, be employed
by, or receive compensation from any party engaged in the same business in the
same geographic areas where the Company or its affiliates conduct business. For
the purposes of this Agreement, proprietary interest means legal or equitable
ownership, whether through stock holdings or otherwise of an equity interest in
any privately owned business firm or entity or ownership of more than 5% of any
class of equity interest in a publicly-held corporation.
-7-
10.8 The Executive, without express written approval from the Board, will not
solicit any of the then current clients or employees of the Company or its
affiliates or discuss with any employee of the Company or its affiliates
information or operation of any business intended to compete with the Company.
Executive agrees that any obligation of the Company to make any
payments to the Executive under the terms of this Agreement or the Executive
Incentive Plan, will cease upon any violation of the preceding paragraphs.
The parties desire that the provisions of Section X be enforced to the
fullest extent permissible under the laws and public policies applied in the
jurisdictions in which enforcement is sought, and agree that the Company may
specifically enforce the terms hereof. If any portion of Section X is judged to
be invalid or unenforceable, Section X will be amended to conform to the legal
changes so that the remainder of the Agreement remains in effect.
SECTION XI
EFFECTS OF CHANGE OF CONTROL
11.1 In the event there is a Change of Control (as hereafter defined) of the
ownership of the Company, the Executive may at any time immediately resign upon
written notice to the Company. In this event, the Company will pay the
Executive's Base Salary through the date of termination.
11.2 In the event there is a Change of Control of the Company and the
Executive's employment is terminated within one year of such Change of Control
due to a Without Cause termination or Constructive Discharge, the Company will
pay the Executive severance pay at the annual rate equal to the highest Base
Salary of the Executive in effect at any time during the period beginning on the
date immediately preceding the occurrence of the Change of Control and ending on
the date the Executive's employment is terminated. Such severance payments shall
commence immediately after termination and shall be payable over a period of
twelve (12) calendar months, or the remaining term of the Agreement, whichever
period is greater. In addition, the Company will pay any earned but unpaid Base
Salary and annual incentive compensation payments prorated to the date of
termination. All other benefits and perquisites described in this Agreement will
be continued in accordance with the Agreement for twelve (12) calendar months
from the date of termination of employment.
11.3 Notwithstanding any of the above provisions to the contrary, in no event
shall the payment in connection with the Change in Control exceed 2.99 times the
Executive's "base period compensation" as that term is defined in section 280G
of the Internal Revenue Code. In the event such payments to the Executive on
account of a Change of Control would exceed 2.99 times the Executive's "base
period compensation" then such payments shall be reduced to the extent necessary
to avoid any penalty which may be imposed by virtue of section 280G.
11.4 A Change of Control shall be deemed to have occurred if I. a tender offer
shall be made and consummated resulting in a change in the ownership of 25% or
more of the outstanding
-8-
voting securities of the Company, II. the Company shall be merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 75% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the former
shareholders of the Company, other than affiliates (within the meaning of the
Securities Exchange Act of 1934) of any party to such merger or consolidation,
III. the Company shall sell substantially all of its assets to another
corporation which is not a wholly owned subsidiary, or IV. a person, within the
meaning of Section 3(a)(9) or of Section 13(d)(3) (as in effect on the date
hereof) of the Securities Exchange Act of 1934, as amended, shall acquire 25% or
more of the outstanding voting securities of the Company (whether directly,
indirectly, beneficially or of record). For purposes hereof, ownership of voting
securities shall take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof)
pursuant to the Securities Exchange Act of 1934, as amended.
SECTION XII
WITHHOLDING TAXES
The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city, or other taxes that shall be required
to be withheld pursuant to any law or governmental regulation.
SECTION XIII
EFFECTS OF PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company
and the Executive with respect to the subject matter and supersedes any prior
Employment Agreement between the Company and the Executive, except that this
Agreement shall not affect or operate to reduce any benefits or compensation
inuring to the Executive of a kind elsewhere provided and not expressly provided
in this Agreement.
SECTION XIV
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating
or merging into or with, or transferring all or substantially all of its assets
to another corporation or person which assumes this Agreement and all
obligations and undertakings of the Company hereunder. Upon such a
Consolidation, Merger, or Sale of Assets the term "the Company" as used will
mean the other corporation and this Agreement shall continue in full force and
effect.
-9-
SECTION XV
MODIFICATION
This Agreement may not be modified or amended except in writing signed
by both parties. No term or condition of this Agreement will be deemed to have
been waived except in writing by the party charged with waiver. A waiver shall
operate only as to the specific term or condition waived and will not constitute
a waiver for the future or act on anything other than that which is specifically
waived.
SECTION XVI
GOVERNING LAW
This Agreement has been executed and delivered in the STATE OF SOUTH
CAROLINA and its validity, interpretation, performance, and enforcement shall be
governed by the laws of that state.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed as of August 16, 1999, by its duly authorized officers and Executive
has hereunto set his/her hand.
WORLD ACCEPTANCE CORPORATION
By:
-----------------------------
Title: Chairman and CEO
--------------------------
--------------------------------
Xxxxxxx X. Xxxxx
