EMPLOYMENT TRANSITION AGREEMENT
Exhibit 10.1
This Agreement (this “Agreement”) is effective as of the Effective Date (as defined below), by
and between Cash America Pawn L.P., a Texas limited partnership (“Company”); and Xxxxx X. Xxxx, an
individual whose principal place of residence is Colleyville, Texas (“Employee”). Cash America
International, Inc. (“CAI”) is also a party to this Agreement for the limited purpose of amending
that certain Cash America International, Inc. Amended and Restated Restricted Stock Unit Award
Agreement, dated November 13, 2006, between Employee and CAI, governing an award of 17,773
restricted stock units (the “RSUs”) to Employee that was made on December 22, 2003 (the “0000 XXX
Agreement”).
STATEMENT OF BACKGROUND
| A. | Company employs Employee as its Executive Vice President — Pawn Operations. |
| B. | Company has announced its plan to reorganize its operating structure, and part of such reorganization will eliminate Employee’s position such that his duties will be transitioned, and spread among, other employees. |
| C. | Company therefore has informed Employee that his full-time employment with the Company will end effective as of September 21, 2007 (the “Separation Date”), and he will remain a part-time employee on call through December 31, 2009 (the “Termination Date”); and from the Effective Date until the Separation Date, Employee’s responsibilities will include assisting Company with the transition of its organizational structure (including the transition of his primary duties to the Company’s new President of its Stores Division) and such other duties assigned to Employee during said period. |
| D. | Therefore, to make a smooth transition to a new organizational structure, Company wishes to retain Employee through the Separation Date with the primary duties to assist with that transition process, and Employee wishes to serve in that capacity; and Company wishes to retain Employee through the Termination Date on an on-call basis, all pursuant to the terms of this Agreement. |
| E. | Employee and CAI also wish to amend the 0000 XXX Agreement to reflect the terms of Employee’s separation arrangement under this Agreement and to comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended. |
STATEMENT OF AGREEMENT
In consideration of the mutual promises contained in this Agreement and other good and
valuable consideration, the sufficiency of which hereby is acknowledged, Company and Employee agree
as follows:
1. Employment Status. Company agrees to continue to employ Employee through the
Separation Date on a full-time basis, and Employee agrees to perform the duties and
responsibilities through said date, all as set forth in this Agreement. Company agrees to continue
to employ Employee from the Separation Date through the Termination Date on a part-time, on-call
basis, and Employee agrees to perform the duties and responsibilities through said date, all as set
forth in this Agreement. As of the Separation Date, Employee will cease serving as an
officer of Cash America International, Inc. and any of its subsidiaries, will return to
Company all Company property in his possession, and will provide Company with whatever resignations
from positions and committees or other documentation Company may request in connection therewith.
2. Term. The term of Employee’s employment under this Agreement (the “Term”) will
commence as of the Effective Date and, unless terminated sooner pursuant to the terms of Section 5
or revoked as of the Effective Date pursuant to the terms of Section 9(e), will terminate on the
Termination Date.
3. Duties And Authority Of Employee.
(a) Responsibilities. Through the Termination Date, Employee will provide the services
necessary or helpful to assist Company in its transition to a new organizational structure,
all as directed by the Company’s Chief Executive Officer (the “CEO”). During the period
beginning on the Effective Date and ending on the Separation Date, Employee will devote his
full-time services to accomplish these responsibilities. During the period from the
Separation Date through the Termination Date, Employee will generally be available on an
on-call basis. Employee’s level of services each week after the Separation Date will not
exceed 20 percent of the average level of weekly services he performed over the 36-month
period preceding the Separation Date (see Section 5(c) below).
(b) Standards. Employee will fulfill his duties and responsibilities as described in
this Agreement in a reasonable and appropriate manner in light of Company’s policies and
practices and applicable laws and regulations. Employee’s office will be based within a two
hour drive time of Company’s field support center located in Fort Worth, Texas.
(c) Avoidance of Conflicts. During the Term, Employee will not engage in any outside
business activity detrimental to Company’s interests. This subsection is not intended to
prevent Employee’s participation in customary and reasonable civic activities and personal
financial matters.
4. Compensation and Benefits. Subject to the terms of this Agreement, Company will
pay Employee, and Employee accepts as full compensation for all services to be rendered to Company
pursuant to this Agreement, the compensation and benefits described below in this Section.
(a) Annual Base Salary. During the period beginning on the Effective Date and ending
on the Separation Date, Employee will be paid base salary at an annual rate of $278,600
(“Annual Base Salary”), less applicable withholdings required by law or, if greater,
authorized by Employee. Company will pay Employee’s Annual Base Salary in accordance with
Company’s standard payroll practices and policies as in effect from time-to-time for
salaried employees.
(b) 2007 Bonus. Employee will be eligible to receive any incentive pay paid out under
the Cash America 2007 Short-Term Incentive Plan, with such amount payable pursuant to the
terms and customary operations of that plan. Employee will not be
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eligible to receive any incentive pay under the Cash America 2008 Short Term Incentive
Plan or the Cash America 2009 Short Term Incentive Plan.
(c) Broad-Based Benefits. During the period beginning on the Effective Date and ending
on the Separation Date, Employee will be eligible to participate in all group retirement,
health, welfare and similar broad-based benefit plans, programs and arrangements generally
available to similarly-situated Company Executive Vice Presidents.
5. Termination. Employee’s employment with Company may be terminated as follows:
(a) Termination With Just Cause.
(i) Company may immediately terminate Employee’s employment hereunder for Just
Cause (as defined below) at any time upon delivery of written notice to Employee.
(ii) For purposes of this Agreement, the phrase “Just Cause” means: (A)
Employee’s material fraud, gross malfeasance, gross negligence, or willful
misconduct done in bad faith, with respect to Company’s business affairs; (B)
Employee’s refusal or repeated failure to follow Company’s established reasonable
and lawful policies; (C) Employee’s material breach of this Agreement; or (D)
Employee’s conviction of a felony or crime involving moral turpitude. A termination
of Employee for Just Cause based on clause (A), (B) or (C) of the preceding sentence
will take effect 10 days after Employee receives from Company written notice of its
intent to terminate Employee’s employment and Company’s description of the alleged
cause, unless Employee, in the opinion of the Company’s senior human resources
officer, during such 10-day period, makes significant progress toward remedying (and
as soon as practicable thereafter, substantially completes the remedy of) the events
or circumstances constituting Just Cause.
(iii) If Employee’s employment hereunder is terminated by Company for Just
Cause, Company will be required to pay to Employee only his Annual Base Salary
earned through the date of termination, and, to the extent required under the terms
of any benefit plan or this Agreement, the vested portion of any benefit under such
plan earned through the date of termination.
(b) Death. Employee’s employment hereunder will be terminated on the date of his
death. If Employee’s employment is terminated due to death, Company will be required to pay
to Employee’s estate, in addition to the amounts payable under Company’s life insurance
plans, if any, only his Annual Base Salary earned through the date of termination, and, to
the extent required under the terms of any benefit plan or this Agreement, the vested
portion of any benefit under such plan. Employee’s estate will not by operation of this
provision forfeit any rights in which Employee is vested at the time of Employee’s death.
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(c) Termination At End of Term. Unless terminated earlier as provided above in this
Section 5, Employee’s employment with Company and all positions held with all related
entities shall be terminated at the end of the Term. However, Employee’s employment with
the Company shall be strictly on-call during the period from the Separation Date to the
Termination Date, such that he shall have an involuntary separation from service for
purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”),
on the Separation Date. Upon such separation from service as of the Separation Date, and
subject to Employee’s timely execution (without revocation) of a release agreement
(substantially in the form attached to this Agreement as Exhibit A; the “Separation Date
Release”), Employee shall be entitled to severance pay and benefits as set forth in
subsections (d), (e), (f) and (g) below, subject to Section 10.
(d) Continued Pay and Benefits. Employee shall be entitled to receive continued pay
and benefits pursuant to the following terms:
(i) For the period beginning on the Separation Date and ending on December 31,
2007, Employee shall continue to receive his full base salary and automobile
allowance, and shall continue to be eligible for financial planning reimbursements
in accordance with the Company’s policy. In addition, if Employee elects conversion
coverage under the Company’s group life insurance plan, the Company will pay
Employee an additional amount equal to the premiums for such coverage through
December 31, 2007. As of the Separation Date, Employee shall cease participation in
the Company’s group life and disability plans, the Cash America International, Inc.
Nonqualified Savings Plan (the “NSP”) and the Cash America International, Inc.
401(k) Savings Plan (the “401(k) Plan”), and the Company shall cease paying for
Employee’s membership in the Fort Worth Club. All other compensation and benefits
will be governed by the terms of the applicable plans, programs, policies and
arrangements. The amounts and benefits provided under this subsection shall be paid
or provided in accordance with the terms of any applicable plans, practices and
policies as in effect from time-to-time for active salaried employees, and each
payment shall be considered a separate payment for purposes of Section 409A.
(ii) During the period beginning January 1, 2008, and ending December 31, 2009,
Employee shall continue to receive his base salary in accordance with the Company’s
regular payroll procedures. The total amount due to Employee under this subsection
(ii) is $557,200, with $53,576.90 to be paid on regular payroll dates occurring on
or before March 15, 2008, and the remainder, $503,623.10, to be paid in equal
biweekly installments beginning on March 21, 2008 and every two weeks thereafter,
with the last payment occurring on December 25, 2009. Each payment under this
subsection shall be considered a separate payment for purposes of Section 409A.
(iii) During the period beginning January 1, 2008, and ending December 31,
2008, Employee shall continue to receive his automobile allowance in accordance with
the Company’s regular automobile allowance policy in effect on the Effective Date,
with each payment of such allowance considered a separate
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payment for purposes of Section 409A. The total amount due to Employee as an
automobile allowance for 2008 is $15,000, with $2,884.60 to be paid on regular
payroll dates occurring on or before March 15, 2008, and the remainder, $12,115.40,
to be paid in equal biweekly installments beginning on March 21, 2008 and every two
weeks thereafter, with the last payment occurring on December 26, 2008.
(iv) During the period beginning six months after the date of Employee’s
separation from service as defined in Section 409A, and ending December 31, 2008,
Employee shall be eligible to receive reimbursement of financial planning expenses
incurred during 2008 up to his maximum annual benefit level in effect as of the
Effective Date ($1,500), in accordance with the terms of the financial planning
expense reimbursement policy covering active Executive Vice Presidents as in effect
on the Effective Date. The right to benefits under this subsection shall not be
subject to liquidation or exchange for another benefit. No reimbursement payments
shall be made under this subsection after December 31, 2008.
Notwithstanding the foregoing, no payments in excess of $450,000 shall be made under
subsections (ii) and (iii) during the period after March 15, 2007 and before the date that
is six months after the date of Employee’s separation from service with the Company as
defined in Section 409A.
(e) Lump-Sum Payments.
(i) On or after January 1, 2008 and on or before March 15, 2008, Employee shall
receive a lump-sum cash payment of an amount equal to the combined company matching
contributions Employee would have received under the NSP and the 401(k) Plan if he
had been allowed to continue to participate in such plans during the period
beginning on the Separation Date and ending on December 31, 2008. For clarity, such
cash payment amount shall be calculated based on the NSP deferral election in effect
for Employee on the Effective Date and Employee’s base salary and, if applicable,
any short-term incentive payment for the 2007 year that is paid on or before March
1, 2008.
(ii) On or after January 1, 2008 and on or before March 15, 2008, the Company
will pay Employee an additional lump-sum cash payment equal to the amount of the
supplemental contribution Employee would have accrued under the Cash America
International, Inc. Supplemental Executive Retirement Plan if Employee had remained
an active participant in that plan through December 31, 2007 (i.e., 10.5% of base
salary and annual bonus paid during the 2007 calendar year).
(f) RSU Vesting and Payment. Except as explicitly provided in this subsection (f), the
terms of Employee’s restricted stock units shall continue to apply, including without
limitation the vesting and forfeiture provisions, such that restricted stock units shall
continue to vest while Employee’s employment continues during the Term. After the Effective
Date, Employee shall not be eligible to receive additional
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awards under any long-term incentive plan maintained by the Company. With respect to
the RSUs (as defined above) granted on December 22, 2003, subject to any applicable deferral
elections Employee may have made before the Effective Date (which the parties agree shall
not be superseded by this subsection (f)), the 0000 XXX Agreement shall be amended as
follows:
(i) The shares subject to the portion of such award that was vested on December
31, 2004 shall be distributed in accordance with the existing terms of the 0000 XXX
Agreement, which provides that such shares shall be distributed within a reasonable
time after the date on which Employee’s employment with the Company and all of its
subsidiaries and affiliates (as defined in the 0000 XXX Agreement) is terminated
other than for cause (as defined in the 0000 XXX Agreement).
(ii) The shares subject to the portion of such award that vested on or after
January 1, 2005 and before January 1, 2008, shall be distributed to Employee on the
six-month anniversary of the Separation Date.
(iii) The shares subject to each portion of such award that vests on or after
January 1, 2008, shall be distributed to Employee within 90 days after the vesting
date for such portion of the award.
(iv) The provisions of Sections 4(a)(ii), 4(b)(ii) and 4(b)(iii) of the 0000
XXX Agreement shall become inoperative on the Effective Date for purposes of
deferral and form of distribution elections that could otherwise have been made
under the 0000 XXX Agreement, such that the Employee shall not be permitted to make
an election on or after the Effective Date to defer the receipt of any shares
subject to the 0000 XXX Agreement or to receive distribution in the form of
installments.
(v) The last sentence of Section 4(b)(ii) of the 0000 XXX Agreement and the
second to last sentence of Section 4(b)(iii) of the 0000 XXX Agreement shall each be
deleted and replaced with the following: “Notwithstanding the foregoing, if Employee
dies before receiving distribution of vested shares described in subsection 4(b)(i),
such shares shall be distributed in a single lump sum within 90 days after the date
of the Employee’s death.”
(vi) Section 5(b) of the 0000 XXX Agreement shall be amended to read as
follows: “(b) Vesting and Payment of the Portion of the Award Vesting after
December 31, 2007. In the event of a Change in Control during the Term of the
Employment Transition Agreement by and among the Employee, the Company and Cash
America Pawn L.P., dated September 19, 2007, the undistributed portion of the Award
otherwise vesting on or after January 1, 2008, and on or before December 31, 2009,
shall automatically accelerate and become 100% vested, and the shares of Common
Stock evidencing such vested RSUs shall be delivered to Employee within 90 days
after the date of the Change in Control, notwithstanding any election made under
Section 4(b) or other provision in this Agreement to the contrary. For purposes of
this Section 5(b), a ‘Change in
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Control’ shall mean a change in the ownership of the Company, a change in
effective control of the Company, or a change in the ownership of a substantial
portion of the assets of the Company, all as defined in Treasury Regulations
Sections 1.409A-3(i)(5) (as in effect on the date hereof), using the default
provisions thereof.”
(g) Continued Medical Coverage.
(i) If Employee elects to continue health coverage under the group health plan
continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”) and/or under Company’s supplemental executive medical expense
reimbursement plan (“MERP”), then, while such coverage is in effect through the
18-month period beginning on the Separation Date, Employee’s premium for such
coverage shall be equal to the amounts (if any) that similarly-situated active
employees would pay for similar coverage under Company’s plans during that period.
The amount of each month’s premium discount under this subsection shall be
considered a separate payment for purposes of Section 409A.
(ii) On and after the 18-month period beginning on the Separation Date,
notwithstanding the expiration of Employee’s and/or Employee’s current spouse’s
period of continued health coverage under COBRA, Employee shall be entitled to
continue such Company health coverage options as he elected to continue during the
COBRA period, as well as MERP coverage, subject to such changes as may apply to
active employees from time to time, through the date he becomes eligible for
coverage under Medicare Part B, and his current spouse shall be entitled to continue
such health coverage options as she received during the COBRA period, as well as
MERP coverage, subject to such changes as may apply to active employees from time to
time, through the date she becomes eligible for coverage under Medicare Part B,
provided that Employee and/or his spouse continues to pay the same amount that
similarly-situated active employees would pay for similar coverage under Company’s
plans during that period, and provided, further, that upon the death or divorce of
Employee’s current spouse (but not upon Employee’s death), the spousal coverage
under this subsection shall cease. The amount of benefits provided pursuant to this
subsection during any calendar year shall not affect the benefits provided in any
other taxable year, provided that the limits on expenses that may be reimbursed
under the Company’s plans shall apply. The right to benefits under this subsection
shall not be subject to liquidation or exchange for another benefit.
All amounts of compensation under Section 5 shall be reduced by applicable withholdings
required by law or, if greater, authorized by employee. Employee acknowledges that, in
order to be entitled to the compensation and benefits described in Section 5, Employee must
sign, date and return the Separation Date Release within the time contemplated therein and
must not have revoked the Separation Date Release within the revocation period contemplated
therein.
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6. Confidential and Proprietary Information.
(a) Access. Employee acknowledges that, during the term of his employment hereunder,
he will be privy to (i) certain confidential and proprietary information of Company which
constitutes trade secrets under applicable law, and (ii) certain other confidential and
proprietary information of Company that may not constitute trade secrets.
(b) Nondisclosure. Employee agrees to not disclose to any third party, without the
prior written consent of the CEO or unless necessary to perform his duties and
responsibilities hereunder, the processes, machines, technical documentation, computer
programs, customer lists, identity of customers, business plans, marketing plans and
techniques, pricing data, financial data, marketing programs, customer files, financial
institution files, technical expertise and know how, and other confidential and proprietary
information and trade secrets (collectively, the “Property”), which have been or will be
provided to Employee by Company and are confidential and proprietary property of Company.
Employee further agrees not to use any Property to his personal benefit or the benefit of
any third party. Employee also agrees to return to Company all such Property which is
tangible upon the termination of his employment hereunder. Notwithstanding the foregoing,
the Property protected hereunder will not include any data or information that has been
disclosed to the public (except where such public disclosure has been made by Employee
without authorization), that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful means. The restrictions in this
Section are in addition to, and not in lieu of, any rights or remedies Company may have
available as a matter of law to prevent the disclosure of trade secrets and proprietary
information.
(c) Nondisclosure Period. Employee’s obligations under the nondisclosure provisions in
this Section 6, (i) will apply to confidential information that does not constitute trade
secrets during the term of Employee’s employment hereunder and for a period of 24 months
after the end of the Term, and (ii) will apply to trade secrets until such Property no
longer constitutes trade secrets.
7. Covenant Against Competition.
(a) General. Employee will not at any time during the Term, on Employee’s own behalf,
or on behalf of any other person or entity, directly or indirectly, as principal, officer,
director, partner or in any other senior management-level capacity, in any of the Business
Territories (as defined below), engage in any business in competition with the business
conducted as of the Separation Date by the Company or any parent, subsidiary or affiliate of
the Company, whether for his own account or otherwise, or solicit, canvass or accept any
business or transaction for or from any other company or business in competition with such
business of the Company in any of the Business Territories. For purposes hereof, the term
“Business Territories” means the geographical regions within the geographic borders of (i)
each State in the United States in which the Company and any parent, subsidiary or affiliate
of the Company is doing business, and (ii) Mexico, Canada and the United Kingdom.
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(b) Severability. It is the desire and intent of the parties that the provisions of
Section 7(a) shall be enforced to the fullest extent permissible under the laws and public
policies of the State of Texas. Accordingly, if any particular portion of subsection 7(a)
shall be adjudicated to be invalid or unenforceable, subsection 7(a) shall be deemed amended
to (i) reform the particular portion to provide for such maximum restrictions as will be
valid and enforceable, or if that is not possible, then (ii) delete therefrom the portion
thus adjudicated to be invalid or unenforceable.
8. Nondisparagement. Employee agrees that he will not make any untrue statement or
untrue criticism, written or oral, or take any other action that is detrimental or hostile to
Company or its affiliated companies or which disparages or criticizes Company’s or its affiliated
companies’ management or practices, damages their reputation or impairs normal operations.
9. General Release.
(a) Release. Employee agrees to forever, irrevocably and unconditionally, release and
discharge Company and other Released Parties (as defined below) from any and all claims, promises,
actions, causes of action and liabilities of any kind or nature, whether known or unknown, which
Employee now has or has ever had against Company or other Released Parties for anything, or related
in any way to anything, occurring on or before the date Employee signs this Agreement. This
release includes, without limitation, all known and unknown claims, promises, actions, causes of
action and liabilities, of any kind or nature resulting from or relating to Employee’s employment
with Company and its affiliates or the termination of that employment or Employee’s separation from
service from Company.
(b) Inclusions. This release includes, but is not limited to, any claims for back pay,
incentive compensation, reinstatement, personal injuries, breach of contract (express or implied)
or breach of any covenant of good faith and fair dealing (express or implied), or for recovery of
any losses or other damages to Employee or his property based on any claim which could have been
asserted under the Texas Commission on Human Rights Act and any similar statute in other states;
the Texas Payday Act, the Texas Labor Code and any similar statutes in other states; Title VII of
the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.; the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 621 et seq.; the
Americans with Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq.; the
Employee Retirement Income Security Act of 1974, 29 U.S.C. Section 1001 et seq.; or
any other federal, state or local statutory or common law. This release will not apply to any
claim for payments or benefits Employee may have under the terms of this Agreement, nor will this
release supersede or otherwise affect, to the extent applicable, any indemnification or executive
insurance protection rights or benefits that Employee may have, now or in the future, with regard
to his activities during his employment with Company as an employee, officer, director or committee
member for Company or any Released Party.
(c) Released Parties. As used in this Agreement, the “Released Parties” are Company and all
of its affiliates, related companies, partnerships or joint ventures, including but not limited to
direct and indirect parent and subsidiary companies, and their predecessors and successors; and,
with regard to each of those entities, except for Employee, all of its past and present employees,
officers, directors, stockholders, owners, representatives, assigns, attorneys,
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agents, insurers, employee benefit programs (and the trustees, administrators, fiduciaries and
insurers of these programs) and any other persons acting by, through, under or in concert with any
of the persons or entities listed in this subsection. Employee understands that this release
covers him and anyone who might have a claim through him or because of him, such as a past, current
or future spouse, his family, heirs, executors, representatives, agents and their successors and
assigns.
(d) No Lawsuits. Employee has not filed or caused to be filed any lawsuit, complaint or
charge with respect to any claim Employee is releasing in this Agreement. Employee promises never
to file or pursue a lawsuit, complaint or charge based on any claim released by this Agreement,
except that Employee may participate in an investigation or proceeding conducted by an agency of
the United States Government or of any state. Employee also has not assigned or transferred any
claim he is releasing, nor has he purported or promised to do so.
(e) Release of Age Claims. Employee expressly and specifically waives any and all rights or
claims which Employee may have under the Age Discrimination in Employment Act of 1967, 29 U.S.C.
Section 621 et seq. (“ADEA”). Employee acknowledges that he was given a period of
at least 21 days in which to consider this Agreement, that this waiver is knowingly and voluntarily
made and Employee specifically agrees that: (i) this waiver is written in a manner that Employee
understands; (ii) this waiver specifically relates to rights and claims under the ADEA; (iii)
Employee does not waive any rights or claims that may arise after the date he signs this Agreement;
(iv) Employee is waiving these rights or claims in exchange for substantial consideration in excess
of anything of value to which Employee is otherwise entitled to receive; and (v) Employee has been
advised in writing, and given the opportunity, to consult with an attorney before signing this
Agreement. If Employee chooses to sign this Agreement before the 21 days have elapsed since this
Agreement was delivered to Employee, Employee agrees that he has done so knowingly and voluntarily
without coercion or duress of any kind. In addition, Employee may, and understands that he may,
reconsider and revoke this Agreement within 7 days after he signs it, such that this Agreement will
have no force or effect.
(f) Breach of Release. Employee agrees that, in the event of his actual or threatened breach
of this release, Company and its affiliates, in addition to all other rights and remedies available
to them at law or in equity, may recover damages from Employee, and will be entitled to an
injunction restraining Employee from breaching this release. Employee also agrees to pay the
reasonable attorneys’ fees and related damages Company or its affiliates may incur as a result of
Employee’s breaching this release. Employee understands that no provision in this release is to be
construed as a waiver or prohibition against Company pursuing any other legal or equitable remedy
for a breach of this release. Employee understands, however, that this paragraph will not apply to
any challenge of the validity of this release given under the ADEA.
10. Enforcement. Employee acknowledges that any breach of Sections 6, 7 or 8 of this
Agreement will result in irreparable damage and continuing injury to the Company that cannot
reasonably or adequately be compensated in damages in action at law. Therefore, in the event of
any breach or threatened breach of Sections 6, 7 or 8 of this Agreement by Employee, Employee
acknowledges and agrees that the Company shall be entitled, without limiting any other available
legal or equitable remedy (whether conferred by statute or otherwise), to an injunction to be
issued by any court of competent jurisdiction enjoining and restraining
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Employee from committing any violation or threatened violation of Sections 6, 7 or 8 of this
Agreement. The Company shall not be required to post any bond to obtain any such injunction.
Employee agrees that all remedies available to the Company by reason of a breach of any of the
foregoing provisions of this Agreement are cumulative and that none is exclusive and that all
remedies may be exercised concurrently or consecutively at the option of the Company, as the case
may be. The provisions of this Section 10 shall survive the termination of this Agreement and of
the relationship between the parties. In addition, without limiting any other remedies available
to the Company, if Employee violates the restrictions of Sections 6, 7, 8 or 9 of this Agreement,
all unpaid compensation and benefits otherwise payable under Section 5 shall be immediately
forfeited.
11. Miscellaneous.
(a) Assignment. This Agreement is for the personal services of Employee, and the
rights and obligations of Employee under this Agreement are not assignable or delegable in
whole or in part by Employee or Company without the prior written consent of the other
party.
(b) Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same
instrument.
(c) Headings; References. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections will, unless otherwise provided,
refer to sections hereof.
(d) Amendments and Waivers. Except as otherwise specified herein, this Agreement may
be amended, and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only with the
written consent of Company and Employee.
(e) Code Section 409A. To the extent that any amount payable to Employee by Company or
any Company plan would be subject to the additional 20% tax imposed under Section 409A, the
parties will negotiate in good faith an alternative arrangement that will comply with the
requirements of that section.
(f) No Third-Party Beneficiaries. Nothing herein, expressed or implied, is intended or
will be construed to confer upon or give to any person, firm, corporation or legal entity,
other than the parties hereto, any rights, remedies or other benefits under or by reason of
this Agreement.
(g) Notices. All notices, communications and deliveries hereunder must be made in
writing signed by or on behalf of the party making the same and must be delivered personally
or sent by registered or certified mail (return receipt requested) or by any national
overnight courier service (with postage and other fees prepaid) as follows:
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| (i) | To Employee: | |||
| Xx. Xxxxx Xxxx | ||||
| 0000 Xxxxxxx Xxxxx | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| (ii) | To Company: | |||
| Xx. Xxxxxx Xxxxxxxx | ||||
| Cash America International, Inc. | ||||
| 0000 Xxxx 0xx Xxxxxx | ||||
| Xxxx Xxxxx, Xxxxx 00000 |
or to such other representative or at such other address of a party as such party hereto may
furnish to the other parties in writing. Any such notice, communication or delivery will be
deemed given or made (i) on the date of delivery if delivered in person (by courier service
or otherwise), or (ii) on the third business day after it is mailed by registered or
certified mail.
(h) Binding Effect. This Agreement will be for the benefit of, and will be binding
upon, Company and Employee and their respective heirs, personal representatives, legal
representatives, successors and assigns.
(i) Governing Law. This Agreement has been executed and delivered in the
State of Texas, and its validity, interpretation, performance and enforcement shall be
governed by the laws of such State. Subject to Paragraph (j) below, any action, suit or
other proceeding that may be initiated by Company or Employee against the other under or in
connection with this Agreement must be brought in a state or federal court in Tarrant
County, Texas. Subject to Paragraph (j) below, Company and Employee hereby consent to the
jurisdiction of such courts and hereby waive any defense of lack of personal jurisdiction or
venue of such courts.
(j) Arbitration. All disputes, claims and controversies of every kind and nature
arising out of or relating to this Agreement, or the interpretation or breach of this
Agreement, shall be resolved by arbitration under the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (the “Rules”), then in effect,
unless the Rules are inconsistent with this Agreement, in which case this Agreement shall
control. A single arbitrator who is selected by the parties (or who is appointed in
accordance with the Rules if the parties are unable to agree on an arbitrator) shall hear
all such disputes, claims or controversies. All hearings for any arbitration proceeding
instituted under this Paragraph (j) shall take place in Tarrant County, Texas. All
arbitrator’s fees, arbitration filing fees, and case service fees incurred as a result of
the arbitration shall be paid for by Company or, to the extent paid for by the Employee,
reimbursed to the Employee by Company. Any arbitration award or determination shall be
binding upon and enforceable upon all parties hereto.
12
IN WITNESS WHEREOF, the parties have executed this Agreement on this the 19th day
of September, 2007 (the “Effective Date”).
| Employee | Cash America Pawn L.P. | |||||
| By: Cash America Holding, Inc., its general partner |
||||||
/s/ Xxxxx X. Xxxx |
By: | /s/ Xxxxxx X. Xxxxxx | ||||
Xxxxx X. Xxxx
|
Xxxxxx X. Xxxxxx, President | |||||
The undersigned agrees to the provisions of this Amendment that amend the 0000 XXX Agreement
(See Section 5(f)).
| Cash America International, Inc. | ||||
By: |
/s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, President | ||||
13
EXHIBIT A
SEPARATION DATE RELEASE
I, Xxxxx X. Xxxx, am entering into this release (this “Release”) which was delivered to me on
___, 2007, pursuant to the terms of, and based on the consideration provided and described
in, the Employment Transition Agreement entered into by me and Cash America Pawn L.P. (the
“Company”) effective as of September 19, 2007 (the “Employment Transition Agreement”).
Notice and Acknowledgement.
I acknowledge that, before signing this Release, I was given a period of at least 21 days in
which to consider this Release. I understand this Release and am entering into it voluntarily. If
I choose to sign this Release before the 21 days have elapsed since this Release was delivered to
me, I agree that I have done so knowingly and voluntarily without coercion or duress of any kind.
I further acknowledge that the Company has encouraged me to discuss this Release with an attorney
before signing it and that I did so to the extent I deemed appropriate. In any event, before I
sign this Release, I will have thoroughly reviewed, carefully considered and understood its effect.
Also, after I have signed this Release, I have 7 days to reconsider and revoke it, but I must do
so within that 7-day period by providing written notice to the Company, attention General Counsel.
General Release.
Release. I agree to forever, irrevocably and unconditionally release and discharge the
Company and other Released Parties (as defined below) from any and all claims, promises, actions,
causes of action and liabilities of any kind or nature, whether known or unknown, which I now have
or have ever had against the Company or other Released Parties for anything, or related in any way
to anything, occurring on or before the date I sign this Release. This Release includes, without
limitation, all known and unknown claims, promises, actions, causes of action and liabilities, of
any kind or nature resulting from or relating to my employment with the Company or the termination
of that employment or my separation from service from Company.
Inclusions. This Release includes, but is not limited to, any claims for back pay,
bonuses, incentive compensation, reinstatement, personal injuries, breach of contract (express or
implied) or breach of any covenant of good faith and fair dealing (express or implied), or for
recovery of any losses or other damages to me or my property based on any claim which could have
been asserted under the Texas Commission on Human Rights Act and any similar statute in other
states; the Texas Payday Act, the Texas Labor Code and any similar statutes in other states; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.; the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621 et seq.; the Americans with Disabilities Act of 1990,
42 U.S.C. Section 12101 et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C.
Section 1001 et seq.; or any other federal, state or local statutory or common law. This Release
will not apply to any claim for payments or benefits I may have under the terms of the Employment
Transition Agreement, nor will this Release supersede or otherwise affect, to the extent
applicable, any indemnification or executive insurance protection rights or benefits
i
that I may have, now or in the future, with regard to my activities during my employment with the
Company as an employee, officer, director or committee member for the Company or any Released
Party.
Released Parties. As used in this Release, the “Released Parties” are the Company and all
of its affiliates, related companies, partnerships or joint ventures, including but not limited to
direct and indirect parent and subsidiary companies, and their predecessors and successors; and,
with regard to each of those entities, except for me, all of its past and present employees,
officers, directors, stockholders, owners, representatives, assigns, attorneys, agents, insurers,
employee benefit programs (and the trustees, administrators, fiduciaries and insurers of these
programs) and any other persons acting by, through, under or in concert with any of the persons or
entities listed in this paragraph. I understand that this Release covers me and anyone who might
have a claim through me or because of me, such as a past, current or future spouse, my family,
heirs, executors, representatives, agents and their successors and assigns.
No Lawsuits. I have not filed or caused to be filed any lawsuit, complaint or charge with
respect to any claim I am releasing in this Release. I promise never to file or pursue a lawsuit,
complaint or charge based on any claim released by this Release, except that I may participate in
an investigation or proceeding conducted by an agency of the United States Government or of any
state. I also have not assigned or transferred any claim I am releasing, nor have I purported to
do so.
Release of Age Claims.
I expressly and specifically waive any and all rights or claims which I may have under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 621 et seq. (“ADEA”). I acknowledge
that this waiver is knowingly and voluntarily made and specifically agree that: (i) this waiver is
written in a manner that I understand; (ii) this waiver specifically relates to rights and claims
under the ADEA; (iii) I do not waive any rights or claims that may arise after the date I sign this
Release; (iv) I am waiving these rights or claims in exchange for substantial consideration in
excess of anything of value to which I am otherwise entitled to receive; and (v) I have been
advised in writing, and given the opportunity, to consult with an attorney before signing this
Release.
Breach of Release.
I understand that this Release is an especially important reason why the Company offered me the
payments and benefits described in my Employment Transition Agreement. Therefore, I agree that if
I breach this Release then, along with all other rights and remedies available to the Company and
its affiliates at law or in equity, the Company also can stop all of the payments and benefits to
me immediately and can recover from me any payments and benefits that I already received. I agree
that, in the event of my actual or threatened breach of this Release, the Company and its
affiliates, in addition to all other rights and remedies available to them at law or in equity, may
recover damages from me, and will be entitled to an injunction restraining me from breaching this
Release. I also agree to pay the reasonable attorneys’ fees and related damages the Company or its
affiliates may incur as a result of my breaching this Release. I understand that no provision in
this Release is to be construed as a waiver or prohibition against the Company pursuing any other
legal or equitable remedy for a breach of this Release. I
ii
understand, however, that this paragraph will not apply to any challenge of the validity of this
Release given under the ADEA.
Miscellaneous Provisions.
I understand that this Release is final and binding. I have carefully read and fully understand
all of the provisions of this Release. This Release and the Employment Transition Agreement form
the entire agreement between the Company and me regarding my employment and the termination of my
employment with the Company. This Release may not be modified or canceled in any manner except by
a writing signed by both an authorized official of the Company and me. I acknowledge that the
Company has made no representation or promises to me, written or oral, other than those in this
Release or the Employment Transition Agreement. I acknowledge that it is not necessary that the
Company or other Released Parties sign this Release for it to become binding on me or to inure to
the benefit of the Company or other Released Parties.
Date
|
Xxxxx X. Xxxx |
iii
