Exhibit 10.6
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT made and entered into as of the 21 day of July,
1997, by and between DOLLAR FINANCIAL GROUP, INC., a New York corporation
("Employer"), and XXXXXXX XXXXXXX, a resident of the State of New Jersey
("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee and Employee desires to
accept employment by Employer upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, and intending to be legally bound hereby, it is
hereby agreed as follows:
1. Employment; Term. Employer agrees to employ Employee, and Employee
agrees to be so employed, in the capacity of Chief Financial Officer of Employer
for a term commencing on the date hereof and ending on the fourth anniversary of
the date hereof.
2. Time and Efforts; Place of Performance. Employee shall diligently
and conscientiously devote substantially his full business time and attention
and best efforts to the business of Employer and the discharge of his duties
hereunder. It is understood that Employee may serve as an outside director of
one or more not for profit corporations, without violating the terms hereof,
provided that such entities are not principally engaged in business directly
competitive with Employer.
3. Base Salary. In partial consideration of the services of Employee,
Employer shall pay or cause one or more of its subsidiary or affiliated
corporations to pay to Employee a salary at an annual rate of $165,000 (the
"Base Salary"), in equal installments in accordance with the past payroll
practices of Employer, but in no event less frequently than monthly. The Base
Salary may be adjusted upward annually in the discretion of the board of
directors of Employer, or the authorized committee thereof.
4. Incentive Compensation. As further compensation for the services of
Employee, Employer shall pay Employee annual cash bonuses determined as follows
and payable within sixty (60) days after June 30 of the relevant fiscal year:
(a) Subject to subparagraph 4(b), Employee shall be eligible
to receive a cash bonus in an amount equal to $25,000 with respect to the fiscal
year ending June 30, 1998, in an amount equal to $35,000 with respect to the
fiscal year ending June 30, 1999 and in an amount equal to $45,000 with respect
to the fiscal year ending June 30, 2000.
(b) The bonus due hereunder for a fiscal year shall be
conditioned upon the achievement by Employer of budgeted annual EBITDA (income
before income taxes, depreciation, amortization, interest expense, management
fees, and incentive compensation payments) for such fiscal year. EBITDA for a
fiscal year shall be computed from the audited financial statements of DFG
Holdings, Inc., a Delaware corporation ("Holdings"), and its subsidiaries for
such fiscal year.
(c) In connection with the calculation of the bonus payable to
Employee for a given fiscal year, the EBITDA of entities acquired during the
relevant fiscal year shall be included in the relevant fiscal year in the
relevant calculations from the date of acquisition, net of an appropriate
capital charge for additional equity capital employed.
(d) In the event Employee's employment is terminated by reason
of Cause (as herein defined), no bonus for the year in which termination or
resignation occurs shall be payable. If Employee's employment terminates for any
other reason, Employee's bonus for the year in which termination occurs shall be
calculated on the basis of the Employer's results for the full fiscal year in
which termination occurs, but his bonus shall be prorated based upon the number
of days in such fiscal year in which he was employed by Employer.
(e) Employer agrees to provide to Employee a car allowance in
the amount of $550 per month and to reimburse Employee for one-hundred percent
(100%) of Employee's cost of automobile insurance, maintenance and gasoline
charges of such automobile while Employee is in the employ of Employer under
this Agreement.
5. Stock Options.
(a) Employee is hereby granted non-qualified options to
purchase two hundred (200) shares of the common stock, without par value
("Shares"), of Holdings at an exercise price of $1,600 per Share (the
"Options"). The Options will be exercisable by payment of the exercise price in
cash or Shares owned by the Employee (at fair market value). The Options shall
have the following terms and provisions:
(i) Term of ten (10) years from July __, 1997;
provided, however, that in the event of termination of employment of the
Employee for any reason whatsoever (other than as set forth in Section 5(a)
(iii) below), the Options will terminate unless exercised within 60 days
following the date on which termination occurs.
(ii) Vesting in equal monthly increments over four
(4) years, commencing with the month of August 1997. All Options shall become
immediately vested upon the occurrence of any of the following: termination of
Employee's employment without Cause; Change of Control (as herein defined) of
Holdings; sale of equity securities of Holdings in a public offering; sale by
Holdings of substantially all the assets or stock of Employer; or death of
Employee during his employment hereunder or disability of Employee resulting in
termination of his employment with Employer.
(iii) In the event Employee's employment is
terminated by reason of Cause, all unexercised
Options shall immediately terminate.
Holdings and its stockholders are parties to that certain
Amended and Restated Shareholders Agreement dated as of August 8, 1996, as
amended (the "Shareholders Agreement"). All Shares issuable upon the exercise of
the Options shall be subject to the terms of the Shareholders Agreement, and
Employee shall execute and deliver such agreements and other documents as
requested by Holdings in connection therewith. The Options are personal to
Employee and are non-transferable, except that upon Employee's death, the
Options shall be transferable to his personal representative.
(b) Holdings agrees that it will not claim a deduction for
federal income tax purposes resulting from the grant (but not the exercise) of
the Options to the Employee.
(c) The exercise price, and the number of shares subject to
the Options, are subject to equitable adjustment to take into account stock
dividends, stock splits, recapitalizations and other dilutive events, all as
reasonably determined in good faith by the board of directors of Holdings.
6. Benefits. Employee shall be eligible to participate in all fringe
benefit programs of Employer offered from time to time to its senior management
employees (including, without limitation, auto allowance, life insurance,
disability insurance, dental and medical coverage, profit sharing, pension,
401(k), and vacation).
7. Expenses. Employer will reimburse Employee for all reasonable,
ordinary and necessary expenses (including travel) incurred by him in carrying
out his duties under this Agreement. Employer acknowledges the business value to
the Employer of such expenditures. Employee shall present Employer from time to
time with an itemized statement of such expenses in such form as Employer may
request.
8. Termination.
(a) Employee's employment under this Agreement may be
terminated without further obligation or liability by Employer at any time for
Cause (defined, for purposes of this Agreement, as (i) willful misconduct, (ii)
dishonesty, or (iii) a final non-appealable adjudication in a criminal or civil
proceeding that Employee has committed a criminal act).
(b) Employer may terminate Employee's employment hereunder at
any time without Cause, including upon the occurrence of the disability (as
defined in Employer's long-term disability policy) of Employee, upon 30 days'
written notice to Employee, provided that Employer shall pay to Employee a
severance benefit (the "Severance Benefit"), as follows: (i) if Employee is
terminated during the first twelve (12) months of the term of this Agreement
(the "First Year"), Employer shall pay to Employee an amount equal to one
hundred percent (100%) of Employee's Base Salary as then in effect, payable in
12 equal consecutive monthly installments on the first day of each month,
commencing with the month after the month in which termination occurs; and (ii)
if Employee is terminated during the term of this Agreement after the First
Year, Employer shall pay to Employee an amount equal to fifty percent (50%) of
Employee's annual Base Salary as then in effect, payable in 12 equal consecutive
monthly installments on the first day of each month, commencing with the month
after the month in which termination occurs. Payment of the Severance Benefit
shall be Employee's sole remedy in the event of the Employer's termination of
this Agreement for any reason. Employee will cooperate in order to allow
Employer to purchase disability insurance regarding Employee in order to fund
its obligation hereunder.
(c) In the event Employee shall be indicted for a crime not
involving Employer or any of its subsidiaries, subject to giving Employee a full
opportunity to make a presentation to the Board of Directors, Employer shall
have the right to terminate the employment of Employee pursuant to this
paragraph (c). If it does so, it shall continue to pay Employee's Base Salary
until the first to occur of (i) conviction of the felony or a lesser included
offense or a plea of nolo contendere by Employee, or (ii) Employee's acquittal.
In the event of Employee's acquittal, Employee shall be entitled to his
Severance Benefit, commencing as of the date of such acquittal, but the amount
paid to him pursuant to this paragraph (c) shall be credited toward the
Severance Benefit. In the event of a conviction or plea of nolo contendere,
Employee shall immediately repay the amount paid pursuant to this paragraph (c),
and, if not immediately repaid and without limiting Employer's other remedies,
Employer shall have the right to offset said sum against monies due to the
Employee by reason of the purchase of Shares formerly owned by Employee and
purchased by Holdings.
(d) For purposes of this Agreement, a "Change of Control"
shall be deemed to have occurred if and when:
(i) WPG Corporate Development Associates IV, L.P.,
WPG Corporate Development Associates IV (Overseas), L.P., Pegasus Partners,
L.P., PAG Dollar Investors LLC and General Electric Capital Corporation,
collectively, shall cease to own equity securities having at least 51% of the
voting power of Holdings other than by reason of, or as a result of, a public
offering of Holdings' shares; provided, however, that shares of Holdings held by
(A) any liquidating trust for any of said parties, (B) the partners, members or
stockholders of any of said parties, (C) the partners, members or stockholders
of any of said parties in the event of the liquidation of such parties, or (D)
any venture capital or management buy out fund sponsored by Xxxxx, Xxxx & Xxxxx
shall not be deemed to constitute a Change of Control for the purpose of this
subparagraph (i);
(ii) Holdings becomes a subsidiary of another
unaffiliated corporation or shall be merged or consolidated into another
unaffiliated corporation; or
(iii) all or substantially all of Holdings' assets
shall have been sold to an unaffiliated party
or parties.
(e) In the event that Employee is terminated without Cause
during the First Year, Employee shall not be required to seek alternative
employment which would serve to mitigate the payment to him of any Severance
Benefit hereunder. In the event that Employee is terminated without Cause during
the term of this Agreement after the First Year, Employee shall be required to
undertake good faith efforts to seek alternative employment, and any
compensation earned or amounts paid to Employee in any such alternative
employment shall serve to mitigate Employer's severance obligations to Employee
hereunder.
9. Restrictive Covenant. In consideration of Holdings' grant of options
to Employee, and Employer's covenant to pay a Severance Benefit, and other
consideration, each as contained herein, without prior written consent of the
Board of Directors of Employer, Employee agrees that he will not for a period of
two (2) years following the termination of Employee's employment with Employer
for any reason whatsoever (or to such lesser extent and for such lesser period
as may be deemed enforceable by a court of competent jurisdiction, it being the
intention of the parties that this Section 9 shall be so enforced); (a) directly
or indirectly engage, in any state or territory of the United States in which at
such time Employer conducts or plans to conduct business, in any business
directly competitive with the business conducted by Employer at the time of
termination, either as employee, independent contractor, 5% or greater owner,
partner, lender or stockholder (provided that the foregoing shall not be
construed to prohibit ownership of less than 2% of the outstanding shares of any
public corporation); (b) solicit, canvass, or accept any business for any other
company, or business similar to any business of Employer, from any past,
present, or future (as defined below) customer of Employer; (c) directly or
indirectly induce or attempt to influence any present or future employee of
Employer to terminate his employment; or (d) directly or indirectly request any
present or future ("future," as used herein, shall mean at or prior to the time
of termination of employment) entities with which Employer has significant
business relationships to curtail or cancel their business with Employer. In
addition and without limiting the foregoing, upon the termination of the
Employee's employment by the Employer for any reason, whether before or after
the expiration of the term of this Agreement, Employee shall not at any time
directly or indirectly disclose to any person, firm or corporation any trade,
technical or technological secrets, any details of organization or business
affairs, or any names of past or present customers of Employer. For the purposes
of this Section 9, the term "Employer" shall be deemed to include Holdings,
Employer and all of Employer's subsidiaries.
10. Inventions. All inventions, discoveries, improvements, processes,
formulae and data relating to Employer's business (the "Inventions") that
Employee may make, conceive or learn during the term of his employment by the
Employer, or within six months following the termination of his employment for
any reason (whether before, during or after the term of this Agreement, whether
during working hours or otherwise), shall be the exclusive property of Employer.
Employee agrees to make prompt disclosure to the board of directors of Employer
of all such Inventions and to do so at Employer's expense all lawful things
necessary or useful to assist Employer in securing their full enjoyment and
protection. In the event of any breach or threatened breach of the provisions of
this Section 10 or the preceding Section 9, Employer may apply to any court of
competent jurisdiction to enjoin such breach. Any such remedy shall be in
addition to Employer's remedies at law under such circumstances.
11. Notices. Any notice given hereunder shall be in writing and
delivered or mailed by certified mail or overnight courier service (with proof
of delivery) and addressed to the appropriate party at the address set forth
below or at such other address as the party shall designate from time to time in
a notice; and if to Employer, with a copy to Wolf, Block, Xxxxxx and
Xxxxx-Xxxxx, Twelfth Floor Packard Building, 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, XX 00000-0000, Attention:
Xxxx X. Xxxxxxxx, Esquire.
Xxxxxxx Xxxxxxx Dollar Financial Group
0 Xxxxxxxx Xxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: President
12. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon Employer, its successors and assigns. Employee acknowledges that
these services are unique and personal. Accordingly, Employee may not assign any
of his rights or delegate any of his duties or obligations under this Agreement.
13. Waiver. Failure to insist in any one or more instances on strict
compliance with the terms of this Agreement shall not be deemed a waiver. Waiver
of a breach of any provision of this Agreement shall not be construed as a
waiver of any subsequent breach.
14. Governing Law; Disputes. This Agreement is made and delivered in,
and shall be construed in accordance with the substantive laws of, the
Commonwealth of Pennsylvania without regard to conflict of law principles. Any
claims, controversies, demands, disputes or differences between or among the
parties hereto arising out of, or by virtue of, or in connection with, or
otherwise relating to this Agreement shall be submitted to and settled by
arbitration conducted in Philadelphia, Pennsylvania before one or three
arbitrators, each of whom shall be knowledgeable in the field of employment law.
Such arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or by any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such an arbitrator may
be enforced in any court having jurisdiction thereof.
15. Severability. In the event that any provision of this Agreement
shall be determined to be invalid by a court of competent jurisdiction, such
determination shall in no way affect the validity or enforceability of any other
provisions hereof.
16. Entire Agreement; Miscellaneous. The parties acknowledge and agree
that they are not relying on any representations, oral or written, other than
those expressly contained herein. This Agreement supersedes all proposals, oral
or written, all negotiations, conversations, or discussions between the parties,
including without limitation the letter dated June 17, 1997 from Employer to
Employee and all course of dealing. All prior understandings and agreements
between the parties regarding employment matters are hereby merged in this
Agreement, which alone is the compete and exclusive statement of their
understanding as to employment. No waiver or modification of this Agreement
shall be valid unless the same shall be in writing and signed by the party
sought to be charged therewith. Time is of the essence in this Agreement and
each and every provision hereof. This is a personal services agreement; no
agency, partnership, joint venture or other joint relationship is created
hereby. The parties acknowledge that they each participated in drafting this
Agreement, and there shall be no presumption against any party on the ground
that such party was responsible for preparing this Agreement or any part hereof.
Paragraph headings are for convenience of reference only and are not intended to
create substantive rights or obligations.
IN WITHNESS WHEREOF, this Agreement has been duly executed by the
undersigned as of the day and year first above written.
DOLLAR FINANCIAL GROUP, INC.
By:
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Xxxxxxx Xxxxx
President
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Xxxxxxx Xxxxxxx
For purposes of Section 5 only:
DFG HOLDINGS, INC.
By:
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Xxxxxxx Xxxxx
President
