EXHIBIT 10.6.4
EMPLOYMENT, CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
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THIS EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT ("Agreement")
is made and entered into as of the 1st day of May, 1998 by and between Check
into Cash, Inc., a Delaware corporation (hereinafter, the "Company"), and
Xxxxxxxxx Xxxxxxx (hereinafter, "Employee").
BACKGROUND
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The Company desires to engage Employee in the capacities set forth herein, in
accordance with the terms and conditions of this Agreement. Employee is willing
to serve as such in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date. This Agreement is effective as of May 1, 1998 (the
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"Effective Date").
2. Employment. Employee is hereby employed on the Effective Date as Vice
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President, Treasurer and Controller of the Company. Employee's responsibilities
under this Agreement shall be in accordance with the policies and objectives
established by the Chief Executive Officer and the Board of Directors of the
Company and shall be consistent with the responsibilities of similarly situated
employees of comparable companies in similar lines of business.
3. Term. Employment under this Agreement shall be at will. Either of
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Employee or the Company may terminate this Agreement at any time for any reason.
4. Extent of Service. During the employment period, and excluding any
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periods of vacation and sick leave to which Employee is entitled, Employee
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Employee to (i) devote reasonable
periods of time to charitable and community activities, and/or (ii) manage
personal business interests and investments, so long as such activities do not
interfere with the performance of Employee's responsibilities under this
Agreement.
5. Compensation and Benefits.
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(a) Base Salary. During the employment period, the Company will pay to
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Employee a base salary in the amount of $170,000 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent installments as
are customary under the Company's payroll practices from time to time. The
Board of Directors of the Company shall review Employee's Base Salary annually
and in its sole discretion, subject to approval of the Board of Directors of the
Company, may increase Employee's Base Salary from year to year. The annual
review of Employee's salary by the Board will consider, among other things,
Employee's own performance and the Company's performance.
(b) Bonuses. The Board of Directors in its sole discretion may, from time
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to time, declare and pay to Employee bonuses, whether in cash or otherwise.
(c) Incentive, Savings and Retirement Plans. During the employment
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period, Employee shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
similarly situated employees of the Company and its affiliated companies, and on
the same relative basis as such other similarly situated employees.
(d) Welfare Benefit Plans. During the employment period, Employee and
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Employee's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated employees of the Company and its affiliated
companies.
(e) Expenses. During the employment period, Employee shall be entitled to
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receive prompt reimbursement for all reasonable expenses incurred by Employee in
accordance with the policies, practices and procedures of the Company and its
affiliated companies to the extent applicable generally to other similarly
situated employees of the Company and its affiliated companies.
(f) Fringe Benefits. During the employment period, Employee shall be
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entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated employees of the Company and its affiliated companies.
(g) Severance. If the Company elects for any reason at any time to
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terminate Employee's employment under this Agreement, the Company shall pay to
Employee all amounts due as salaries and bonuses up to the effective date of the
termination, plus an amount equal to one year's Base Salary as severance pay.
6. Stock Option Grants. As additional consideration to enter into this
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Agreement, the Company has granted Employee options to purchase 7,650 shares of
the common stock of the Company, pursuant to an Option Agreement by and between
Employee and Company, dated as of the date of this Agreement.
7. Representations and Warranties. Employee hereby represents and warrants
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to the Company that Employee is not a party to, or otherwise subject to, any
covenant not to compete with any person or entity, other than Credit Bureau
Services, Inc., and Employee's execution of this Agreement and performance of
his obligations hereunder will not violate the terms or conditions of any
contract or obligation, written or oral, between Employee and any other person
or entity.
8. Restrictions on Conduct of Employee.
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(a) General. Employee and the Company understand and agree that the
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purpose of the provisions of this Section 8 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Employee's post-employment competition with the Company per se, nor is
it intended to impair or infringe upon Employee's right to work, earn a living,
or acquire and possess property from the fruits of his labor. Employee hereby
acknowledges that the post-employment restrictions set forth in this Section 8
are reasonable and that they do not, and will not, unduly impair his ability to
earn a living after the termination of this Agreement. Therefore, subject to
the limitations of reasonableness imposed by law upon the restrictions set forth
herein, Employee shall be subject to the restrictions set forth in this Section
8.
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(b) Definitions. The following capitalized terms used in this Section 8
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shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Affiliates" shall mean Check into Cash Holdings, Inc., Check into
Cash of California, Inc., Check into Cash of Illinois, LLC, Check into Cash of
Indiana, LLC, Check into Cash of Iowa, Inc., Check into Cash of Kentucky, LLC,
Check into Cash of Missouri, Inc., Check into Cash of Nebraska, Inc., Check into
Cash of North Carolina, Inc., Check into Cash of Ohio, LLC, Check into Cash of
Wisconsin, LLC, Credit Bureau Services, Inc., Creditcorp of Tennessee, Inc.,
Creditors Adjustment Bureau, Inc., Xxxxx Management Services, Inc., Xxxxx
Properties, LLC, Preferred One, LLC, and any other entities that may be formed
in the future under the control of the Company, any Affiliate or W. Xxxxx Xxxxx,
Jr.;
"Competitive Services" means any services provided by Company and the
Affiliates at the Determination Date, including, without limitation, the
business of cashing checks, deferring deposit of checks for specified periods of
time, and extending short-term, unsecured credit.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or the Affiliates or relating to its or
their business, including, without limitation, any confidential "know-how,"
customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies, price lists, market
studies, business plans, operational methods, marketing plans or strategies,
product development techniques or plans, computer software programs (including
object code and source code), data and documentation, data base technologies,
systems, structures and architectures, inventions and ideas, past, current and
planned research and development, compilations, devices, methods, techniques,
processes, financial information and data, business acquisition plans, new
personnel acquisition plans and any other information that would constitute a
Trade Secret (as defined herein).
"Determination Date" means the date of termination of Employee's
employment with the Company for any reason whatsoever or any earlier date
(during the employment period) of an alleged breach of the Restrictive Covenants
by Employee.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Employees" means persons who were employed by the Company
or the Affiliates at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the employment period and a period extending
two (2) years from the date of termination of Employee's employment under this
Agreement; provided, however, in the event the Confidential Information
constitutes a Trade Secret, the Restricted Period shall be five (5) years.
"Restrictive Covenants" means the restrictive covenants contained in
Section 8(c) hereof.
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"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret" under the common law or statutory law of the State
of Tennessee.
(c) Restrictive Covenants.
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(i) Restriction on Disclosure and Use of Confidential Information.
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Employee understands and agrees that the Confidential Information constitutes a
valuable asset of the Company and its Affiliates, and may not be converted to
Employee's own use. Accordingly, Employee hereby agrees that Employee shall
not, directly or indirectly, at any time during the Restricted Period reveal,
divulge, or disclose to any Person not expressly authorized by the Company any
Confidential Information, and Employee shall not, directly or indirectly, at any
time during the Restricted Period use or make use of any Confidential
Information in connection with any business activity other than that of the
Company.
(ii) Nonsolicitation of Protected Employees. Employee understands and
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agrees that the relationship between the Company and its Affiliates and each of
its Protected Employees constitutes a valuable asset of the Company and its
Affiliates and may not be converted to Employee's own use. Accordingly,
Employee hereby agrees that during the Restricted Period Employee shall not
directly or indirectly on Employee's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company.
(iii) Noncompetition with the Company. During the Restricted Period,
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Employee, unless acting in accordance with the Company's prior written consent,
will not directly provide any Competitive Services to, and will not, directly or
indirectly, (i) own, manage, operate, join, control, finance or participate in
the ownership, management, operation, control or financing of, or (ii) be
connected as a Principal or Representative or otherwise with, or (iii) permit
Employee's name to be used by or in connection with, any Person engaged in
providing Competitive Services to any Person conducting business activities
within a ten (10) mile radius of any store location from which the Company or
any Affiliate is or was engaged in the provision of the Competitive Services on
the Determination Date, including any store location for which a lease had been
entered into by the Company or any Affiliate on or before the Determination Date
but was not then operational; provided, however, that the provisions of this
Agreement shall not be deemed to prohibit the ownership by Employee of any
securities of the Company or its affiliated entities or not more than five
percent (5%) of any class of securities of any corporation having a class of
securities registered pursuant to the Securities Exchange Act of 1934, as
amended. The provisions of this Section 8(c)(iii) shall not apply in the event
that the employee is terminated by the Company.
(d) Exceptions from Disclosure Restrictions. Anything herein to the
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contrary notwithstanding, Employee shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Employee or
his agent; (b) becomes available to Employee in a manner that is not in
contravention of applicable law from a source (other than the Company or its
Affiliates or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its Affiliates or by a confidentiality or other similar agreement;
(c) was known to Employee on a non-confidential basis and not in contravention
of applicable law or a confidentiality or other similar agreement before its
disclosure to Employee by the Company or its Affiliates or one of its or their
officers, employees, agents or representatives; or (d) is required to be
disclosed by law, court order or other legal process; provided, however, that in
the event disclosure is required by law, court order or other legal process,
Employee shall provide the Company with prompt notice of such
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requirement so that the Company may seek an appropriate protective order prior
to any such required disclosure by Employee.
(e) Enforcement of Restrictive Covenants.
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(i) Rights and Remedies Upon Breach. In the event Employee breaches,
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or threatens to commit a breach of, any of the provisions of the Restrictive
Covenants, the Company shall have the following rights and remedies, which shall
be independent of any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Employee from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company or an Affiliate and that money damages would not provide an adequate
remedy to the Company or the Affiliate; and
B. the right and remedy to require Employee to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Employee as the result of
any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Employee acknowledges and agrees that
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the Restrictive Covenants are reasonable and valid in time and scope and in all
other respects. If any court determines that any of the Restrictive Covenants,
or any part thereof, are invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
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the Restrictive Covenants, the prevailing party in such action shall be entitled
to be paid any and all costs and expenses incurred by him or it in enforcing or
establishing his or its rights thereunder, including, without limitation,
reasonable attorneys' fees, whether suit be brought or not, and whether or not
incurred in trial, bankruptcy or appellate proceedings.
9. Assignment and Successors.
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(a) Employee. This Agreement is personal to Employee and without the
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prior written consent of the Company shall not be assignable by Employee
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Employee's
legal representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
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binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or
assets of the Company (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in
this Agreement, "the Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law or
otherwise.
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10. Miscellaneous.
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(a) Waiver. Failure of either party to insist, in one or more instances,
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on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of
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this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
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limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement contains
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the entire agreement between the Company and Employee with respect to the
subject matter hereof, and it supersedes and invalidates any previous agreements
or contracts between them which relate to the subject matter hereof, including,
but not limited to that certain Employment, Confidentiality and Non-Competition
Agreement that was previously executed by and between Employee and the Company.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, the
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laws of the State of Tennessee and, without regard to Tennessee's conflict of
laws principles, shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
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required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: Check into Cash, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Attention: W. Xxxxx Xxxxx, Jr.,
Chairman and Chief Executive Officer
To Employee: Xxxxxxxxx Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
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modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Employment, Confidentiality and Non-Competition Agreement as of the date first
above written.
CHECK INTO CASH, INC.
By: /s/ W. Xxxxx Xxxxx, Jr.
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W. Xxxxx Xxxxx, Jr.
Chairman of the Board
and Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
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