Exhibit 10.31
AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT ("Agreement") is made
as of September 17, 2002, between THE FINANCE COMPANY ("Finance" or "Employer"),
a wholly owned subsidiary of TFC Enterprises, Inc. ("TFCEI") and M. XXXXXXXX
XXXXXXX ("Employee").
RECITALS:
A. The parties entered into a Change of Control Agreement dated July 6,
2001 (the "Original Agreement") under the assumption that it is possible that at
some future date there may be a Change of Control in Finance.
B. It is the parties express agreement and understanding that the
provisions of this Agreement will not take effect unless there is a Change of
Control in Finance as defined in Section 13 of this Agreement.
C. The parties desire to amend and restate the Original Agreement, as
provided below.
AGREEMENT
1. Employment. Finance hereby employs Employee and Employee hereby accepts
employment, upon the terms and conditions set forth in this Agreement.
2. Term. Subject to the provisions for extension or earlier termination as
provided below, the term of this Agreement shall commence upon a "Change of
Control" (as defined in Section 13) and continue for three (3) years.
3. Compensation.
3.1 For all services rendered by Employee under this Agreement, Finance
shall pay Employee a base salary at the following rates per calendar year
commencing on the date of the Change of Control:
Calendar Year Yearly Salary
------------- -------------
2002 $ 102,200
2003 $ 107,300
2004 $ 112,700
2005 $ 118,350
Base salary shall be payable in equal semi-monthly installments (pro rated
for partial periods).
3.2 In addition to Employee's base salary, an Executive Profit Sharing
Plan at the rate of .125% of the net pre-tax earnings of Finance and its
subsidiaries during each calendar year of the duration of this Agreement shall
be paid Employee as hereinafter provided. A copy of the current Executive Profit
Sharing Plan is attached hereto as Attachment A and is incorporated by
reference. Finance and its successors and assigns agree to abide by this
Executive Profit Sharing Plan. The term "net pre-tax earnings" as used in this
Agreement shall mean the consolidated net pre-tax earnings of Finance and its
subsidiaries. In computing net pre-tax earnings, no deductions shall be taken or
allowances made for (i) federal or state income taxes paid or accrued, or for
(ii) Executive Profit Sharing Plans paid by Finance to Employee, as a Senior
Vice President of Finance, pursuant to this Agreement and to any other employees
who participate in the Executive Finance Profit Sharing Plan. Executive Profit
Sharing Plan due Employee during each year of the term of this Agreement shall
be finally determined as of, and shall accrue and become vested on, December 31,
of each year. The Executive Profit Sharing Plan provided in this Section 3.2
shall be payable as follows:
3.2.1 As soon as the annual audited financial statements prepared
by Finance's independent public
accountants are available, Employee's Executive Profit Sharing Plan for the
preceding fiscal year will be finally determined. Upon Finance's final
determination of Employee's Executive Profit Sharing Plan, it shall be paid
promptly to Employee. It is the parties express agreement that Employee is a
salaried exempt and executive employee and accordingly, the Employee's Executive
Profit Sharing Plan is not subject to the Fair Labor Standard Act and/or its
equivalent embodied in the Virginia Code at (S) 40.1-29.
3.2.2 In the event that Employee resigns at any time during the
life of this Agreement, Employee will not be entitled to any Executive Profit
Sharing Plan payments or any pro rated portion thereof not yet calculated.
3.3 Nothing in Sections 3.1 or 3.2 above is to be interpreted as
restricting or limiting the power of the Board of Directors to authorize and
direct giving any Finance employee, from time to time, such additional
compensation, Executive Profit Sharing Plans or other incentives as the Board
may deem appropriate.
4. Duties. Employee is engaged as Senior Vice President of Finance.
Employee shall retain the "same or equivalent employment." "Same or equivalent
employment" shall mean employment with the same or equivalent position,
employment benefits, pay and other terms and conditions of employment. Factors
to consider may include whether there are substantially similar duties and
responsibilities, which must entail substantially equivalent skill, effort,
responsibility and authority; the same type of appointment work schedule, status
and tenure; the same employment benefits made available to the Employee (e.g.
life insurance, health benefits, retirement coverage, and leave accrual). If
Employee is elected or appointed an officer or director of TFCEI and/or its
subsidiaries, Employee will serve in such capacity without further compensation
except out-of-pocket expenses not otherwise reimbursed by Finance.
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5. Extent of Services. Employee shall devote Employee's full time, best
efforts, attention and energies to the business of Finance and its affiliates,
and shall not, without prior consent of Finance's CEO, Board of Directors, or
Finance's successor, directly or indirectly engage in any other business
activity which materially interferes with Employee's performance of Employee's
duties hereunder. This shall not be construed as preventing Employee from
investing Employee's assets in such form or manner as will not require
substantial time on the part of Employee in the affairs of the entities in which
such investments are made, will not detract from the operation of Finance and
are not reasonably expected to cause conflicts of interest to arise.
6. Disclosure of Confidential Information and Consent Not to Compete.
Employee recognizes and acknowledges that the identities of Finance's customers,
business or financial contracts, agreements, techniques, practices, plans or
other "trade secrets," such as may exist from time to time, are a valuable,
special and unique asset of Finance's business.
6.1 Employee hereby agrees Employee will not, during or for a period of
two (2) years after the term of Employee's employment, disclose Finance's trade
secrets or any part thereof not of public record or generally known otherwise to
any unaffiliated person, firm, corporation, association or other entity without
Finance's prior consent unless such disclosure is required by law or
governmental regulation(s). Employee hereby further agrees that, during and for
a period of two (2) years after the term of this Agreement, Employee will not
use any of Finance's trade secrets, directly or indirectly, for Employee's or
any third party's benefit or use in any business endeavor not affiliated with
Finance. In the event of a breach or threatened breach by Employee of the
provisions of this Section, Finance shall be entitled to an injunction, without
the necessity of posting bond, restraining Employee from disclosing, in whole or
in part, Finance's trade secrets, or from utilizing them for Employee's benefit
or that of any unaffiliated person, firm, corporation, association or other
entity to whom such information, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing herein shall be construed as prohibiting
Finance from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages.
6.2 Employee agrees that subsequent termination of Employee's employment
for whatever reason, Employee will not directly or indirectly, individually or
as an owner, employee, partner, officer, director or stockholder, advisor,
consultant or independent contractor compete against Employer in the Employer's
market areas pursuant to the following schedule.
(a) Employee's covenant not-to-compete cannot exceed the remaining
time left in the Agreement's payout period. It is understood that at the end of
this Agreement, or payout period, Employee will not be subject to a covenant
not-to-compete.
6.2.1 For purposes of this Agreement, "compete" means to be employed
by or to provide services to any entity which is in the business of financing
sub-prime motor vehicles. The term "sub-prime" shall be governed by the industry
definition. For purposes of this Agreement, "market areas" means those areas set
out in Attachment B to this Agreement. Employee acknowledges that this Agreement
is reasonable based upon Employee's position with
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Employer, is not an unreasonable restraint, and will not affect Employee from
being employed in a job of equivalent pay and benefits.
6.3 Employee agrees that for a period of three (3) years from the
termination of employment, for whatever reason, Employee will not directly or
indirectly, individually or as owner, employee, officer, director or
stockholder, advisor, consultant, or independent contractor solicit any person
employed by Employer.
6.4 Employee and Employer agree that in case of a breach of the
provisions contained in Section 6 of this Agreement, damages will be difficult,
if not impossible, to ascertain. Accordingly, Employer and Employee, through a
process of arms length negotiation, have established a sum and liquidated
damages for each separate violation in the amount of $10,000. A violation for
purposes of this Agreement is each occurrence of Employee purchasing a contract
as defined in Paragraph 6.2.1. By signing this Agreement, Employee acknowledges
that this amount is not a penalty, that the amount is reasonable, and that
Employee is waiving any right to contest the reasonableness of the amount of
liquidated damages or that the liquidated damages are against public policy.
6.5 Employee agrees that if Employee violates the provisions of
Section 6 of this Agreement, that in addition to the relief authorized in this
Agreement, the Employer will also be entitled to actual damages to the extent
that the actual damages can be established and exceed the amount of liquidated
damages, any and all equitable relief, including an injunction without the
necessity of posting a bond, and the Employer's costs of litigation, including
attorney's fees and costs.
7. Expenses. Upon the presentation of an itemized accounting and the
submission of supporting vouchers, Employee shall be promptly reimbursed for all
reasonable and necessary expenses incurred by Employee in the promotion of the
business of Finance and its affiliates. Finance shall furnish Employee an
automobile for Employee's personal and business use and shall pay all reasonable
expenses for the operation and maintenance of said automobile. Gasoline for
personal use within a 50-mile radius of the Employee's home office will be paid
by Finance.
8. Benefits. Finance will continue to provide Employee any such other
benefits as Employee now has and that may be additionally approved for Finance's
employees generally or its senior executives. Finance agrees that it will
maintain Employee's health benefits, both employee cost and benefits, at its
current level or an equivalent level. A copy of the current health insurance
plan is attached hereto as Attachment C. Employee shall be entitled each year to
a vacation of four (4) weeks during which time Employee's compensation shall
continue in full. Said vacation may be taken incrementally unless otherwise
directed by the CEO.
9. Disability. If Employee is unable to perform Employee's duties hereunder
by reason of medical incapacity for a consecutive period of not more than three
(3) months, Employee shall be entitled to Employee's regular compensation
(including Executive Profit Sharing Plans and all other elements thereof) during
the period of such incapacity. In the event that such medical incapacity exceeds
three (3) consecutive months in duration, Employee's base salary and Executive
Profit Sharing Plan payable under this Agreement may, after the initial
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three (3) consecutive months period, be reduced by fifty percent (50%), provided
Employee's full base salary and Executive Profit Sharing Plan shall be
reinstated subject to the terms of this Agreement upon Employee's return to
employment and to the discharge of Employee's full duties hereunder.
Notwithstanding anything herein to the contrary, Finance may terminate this
Agreement at anytime after Employee shall be unable to perform Employee's
duties, for whatever cause, for a continuous period of more than six (6) months
or for a total of 190 business days during any rolling 18-month period, and all
obligations of Finance hereunder shall cease upon any such termination. In
addition, any such Executive Profit Sharing Plan actually paid to Employee
pursuant to Section 3.2 and this Section 9 shall be deemed to vest on the last
day of the month that is the sixth month in which Employee has suffered a
medical incapacity. It is expressly agreed by the parties that any amounts owed
to Employee in salary, Executive Profit Sharing Plans and benefits during the
disability period will be offset by any payments made to Employee under the
Finance's disability policy.
10. Termination
10.1. For Cause. Notwithstanding any other provision of this Agreement,
Finance reserves the right to terminate Employee's employment, without notice,
for cause and such termination shall not constitute a breach of this Agreement
by Finance. As used herein, any one or more of the following shall constitute
cause: (i) fraud, misappropriation, embezzlement or similar wrongful acts to or
against Finance or its affiliates; (ii) conviction of a felony or engaging in
conduct involving moral turpitude, provided such conviction or conduct is
reasonably expected to affect Finance's, TFCEI's or its subsidiaries' ability to
engage in their businesses or is reasonably expected to materially affect the
good name of Finance, TFCEI and/or its subsidiaries; (iii) unless medically
incapacitated, Employee is demonstrably unable, or Employee is grossly negligent
in the performance of Employee's office and such other duties as may be assigned
to Employee by Finance's CEO or Finance Board from time to time after Employee
has been provided with thirty (30) days written notice and an opportunity to
cure the problem(s) or; (iv) Employee's violation of any provision of this
Agreement. In the event of termination of this Agreement pursuant to provisions
(i), (ii) or (iv) of this subsection, Employee shall be entitled to only such
unpaid base salary as shall have accrued as of the date of Employee's
termination, together with any Executive Profit Sharing Plans that would become
payable on such date had Finance's fiscal year then terminated. If Employee is
terminated, pursuant to provision (iii) of this Subsection, in addition to
Employee's Executive Profit Sharing Plan payments, Employee will also be
entitled to a payment of an additional six (6) months salary and the payments of
COBRA for six (6) months. These payments shall be made to Employee at the time
Finance distributes payroll checks to its other Employees.
10.2. Not For Cause. Employee, pursuant to the terms of the Agreement,
may at any time upon the giving of 30-days notice be terminated not for cause.
If Employee is terminated not for cause, Employee shall be entitled to all
compensation, benefits and bonuses due under Section 3 of this Agreement for the
remainder of this Agreement. Such payments shall be paid to Employee as all
salary, bonuses and profit sharing are made to Finance's Employees.
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10.3. Constructive Discharge. If Employee is ready, willing and able to
work and Finance, for whatever reason, does not utilize the services of Employee
for substantially the same professional duties for a total period of ninety (90)
days, during the life of this Agreement or elects to transfer Employee outside
the Hampton Roads Virginia area and Employee is unable to transfer for any
reason, Employee will be entitled to all salary, Executive Profit Sharing Plans,
and benefits as provided in Section 10.2 of this Agreement.
10.4. Excise Tax Under Section 4999. Employee understands that the
payments Employee receives under this or other agreements, individually or
combined, may be subject to an excise tax pursuant to Section 4999 of the
Internal Revenue Code. Accordingly, if at any time, it is determined that any
payments to Employee under this Agreement would be subject to such excise tax,
the payments to Employee under this Agreement shall be reduced by any amount
sufficient to eliminate the excise tax but only if the result is to give the
Employee a larger after-tax return than if such payments were not reduced. The
Employee shall have the right to designate which payments shall be reduced.
11. Death During Employment.
11.1 If Employee dies during the term of Employee's employment,
Finance shall pay to Employee's estate the compensation (including Executive
Profit Sharing Plans) which would otherwise be accrued by Employee through the
end of the month in which Employee's death occurs. In addition, the Company will
pay Employee's estate the compensation and Executive Profit Sharing Plan
payments for an additional three-month period following Employee's death. The
Executive Profit Sharing Plan payable hereunder shall be payable through the
month of the Employee's death calculated on an unaudited basis.
11.2 Finance reserves the right to insure the life of Employee for all
or any part of the payments which it anticipates would be payable pursuant to
Section 11.1; however, no benefits payable to Employee's survivors or estate
under any group life insurance program provided by Finance shall be deemed to be
any part of the payments due under Section 11.1 above.
12. Arbitration. Any controversy or claim arising out of, or relating to
this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the rules then pertaining of the American Arbitration
Association or other alternative dispute resolution means the parties may then
agree upon9, and judgment upon the award rendered may be entered in any court
having jurisdiction hereof and the parties. In the event that Employee's
employment is finally determined to have been not for cause, constructive
discharge or without notice and an opportunity to cure as provided in Section
10.1(iii), Employee shall be paid any and all payments due and owing pursuant to
Section 10.1(iii), 10.2 or 10.3 as the case may be.
13. Change of Control. A "Change of Control" of TFCEI shall be deemed to
have occurred upon the happening of any of the following events:
13.1 The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial
ownership (within the meaning
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of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the
then outstanding shares of common stock of TFCEI or Finance or the combined
voting power of the then outstanding voting securities of TFCEI or Finance
entitled to vote generally in the election of directors, but excluding, for this
purpose, any such acquisition by TFCEI or any of its subsidiaries, or any
employee benefit plan (or related trust) of the Company, or any corporation with
respect to which, following such acquisition, more than 50% of, respectively,
the then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the common stock
and voting securities of TFCEI immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior to such
acquisition, of then outstanding shares of common stock of TFCEI or the combined
voting power of the then outstanding voting securities of TFCEI entitled to vote
generally in the election of directors, as the case may be;
13.2 Approval by TFCEIs' shareholders of a reorganization, merger or
consolidation of TFCEI, in each case, with respect to which all or substantially
all of the individuals and entities who were the respective beneficial owners of
the common stock and voting securities of TFCEI immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation, beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock or the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation, or of a complete
liquidation or dissolution of TFCEI or of the sale or other disposition of all
or substantially all of the assets of TFCEI.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and personally or electronically
delivered or if sent by certified mail to Employee's residence in the case of
Employee, or to its principal office in the case of Finance.
15. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by the waiving party.
16. Assignment. The rights and obligations of Employee under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of Finance; however, no assignment of rights, powers or benefits by
Employee shall be binding upon Finance without the consent of the Board of
Directors.
17. Affiliated Entities. Any business entity which is fifty-one percent
(51%) or more owned by Finance or TFCEI shall be deemed to be an "affiliate" for
purposes of this Agreement.
18. Entire Agreement. This Agreement contains the entire agreement of the
parties. It may not be changed orally but only an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought. Furthermore, this Agreement supercedes any
prior severance agreements between Employee and Finance.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
(Corporate Seal) THE FINANCE COMPANY
ATTEST:
By:_________________________________________
Xxxxxx X. Xxxxx, Chairman of the Board
____________________
EMPLOYEE
____________________________________________
M. Xxxxxxxx Xxxxxxx
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ATTACHMENT A
EXECUTIVE PROFIT SHARING PLAN
In addition to Employee's base salary, at a stipulated percentage of the
net pre-tax earnings of THE Finance Company (TFC) and its subsidiaries during
each fiscal year shall be paid Employee as hereinafter provided. Employee's
percentage will be determined, prior to the beginning of any fiscal year, by the
Chief Executive Officer of TFC. The term "net pre-tax earnings" shall mean the
consolidated net pre-tax earnings of TFC and its subsidiaries. In computing net
pre-tax earnings, no deductions shall be taken or allowances made for (i)
federal or state income taxes paid or accrued, or for (ii) Executive Profit
Sharing Plans paid by TFC to Employee, pursuant to this plan and to any other
Employees who participate in this plan. Executive Profit Sharing Plan payments
due Employee during any year shall be finally determined as of, December 31, of
each year. The Executive Profit Sharing Plan shall be payable as follows:
As soon as the annual audited financial statements prepared by TFC's
independent public accountants are available, Employee's Executive Profit
Sharing Plan for the preceding fiscal year will be finally determined. Upon
TFC's final determination of Employee's Executive Profit Sharing Plan, it shall
be paid promptly to Employee.
In the event Employee is no longer employed, for any reason, by TFC at the
time the final determination of the amount due Employee, Employee will not be
entitled to any Executive Profit Sharing Plan payments or any pro-rated portion
thereof.
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ATTACHMENT B
For purposes of Section 6.2.1 of this Agreement, the term "Market
Areas" is defined as the states in which Finance currently does business in and
any other states that Finance enters prior to the termination of Employee's
employment. Currently, Finance does business in the following states:
Arizona
California
Colorado
Florida
Georgia
Hawaii
Indiana
Kansas
Kentucky
Louisiana
Maine
Mississippi
North Carolina
Oklahoma
South Carolina
Texas
Xxxxxxxx
Xxxxxxxxxx
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