AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.5
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), originally
effective as of January 3, 2007, is amended and restated on December 23, 2008,
by and between CompuCredit
Corporation, a Georgia corporation (“CompuCredit”), and Xxxxxxxxxxxx Xxxxxxxxxx, an
individual resident of the State of Georgia (“Employee”). This
Agreement amends, restates and supersedes the employment agreement between the
Company and the Employee that became effective as of the Effective Date (the
“Previous Employment Agreement”).
WHEREAS,
in consideration of, among other things, CompuCredit’s appointment of Employee to the position of President (Credit Cards), Employee
agreed to devote his full working time to the business efforts of CompuCredit;
and
WHEREAS,
the parties amended and restated all prior employment agreements or
arrangements, in their entirety to set forth the terms and conditions of
Employee’s continued employment with CompuCredit into the Previous Employment
Agreement, effective as of January 3, 2007; and
WHEREAS,
the Company and the Executive now desire to amend and restate the Previous
Employment Agreement to reflect the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended, and the final regulations issued
thereunder.
NOW,
THEREFORE, for and in consideration of the Employee’s employment with
CompuCredit and the premises and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, CompuCredit and Employee hereby agree as
follows:
1. Relationship
Re-established. Upon the terms and subject to the conditions
of this Agreement, CompuCredit hereby employs Employee to serve as the President
(Credit Cards), and, as such, Employee shall manage the Credit Card Line of
Business and be the primary executive within CompuCredit responsible for the
profitability and management of the Credit Card Line of Business and shall have
such other executive level powers and duties as shall be otherwise conferred on
him by CompuCredit’s Board of Directors or Chief Executive Officer consistent
with those generally associated with that position (collectively, the
“Services”). For the purpose of this Agreement, “Credit Card Line of
Business” shall mean CompuCredit’s commercial enterprise of extending unsecured
revolving loans to customers. Employee shall perform the Services at
the direction of CompuCredit’s Chief Executive Officer. Employee
hereby agrees to devote 100% of his business time, attention, energy and skill
exclusively to performing his obligations and duties hereunder and to engage in
no business activities other than the performance of his obligations and duties
hereunder, except for those specific activities as the Chief Executive Officer
or Board of Directors of CompuCredit shall approve in advance in writing;
provided, however, that nothing herein contained shall restrict or prevent
Employee from personally and for his own account owning and dealing in stocks,
bonds, securities, real estate, commodities, or other investment properties for
his own benefit or the benefit of his family. Further, nothing herein
contained shall restrict or prevent Employee from serving on the Board of
Directors of a non-profit entity or any entity that the Chief Executive Officer
approves of in writing. Employee shall perform his obligations and
duties hereunder diligently, faithfully and to the best of his abilities and, in
doing so, shall comply with applicable CompuCredit policies and
procedures. If there is any conflict between such policies and
procedures and this Agreement, this Agreement shall control.
2. Term;
Termination.
2.1 Term of
Employment. The term of Employee’s employment under this
Agreement commenced on January 1, 2007 and shall continue for an initial term
(the “Initial Term”) of five years from that date, unless sooner terminated in
accordance with Section 2.2. Upon expiration of the Initial Term,
Employee’s term of employment shall be automatically extended month by month
upon the same terms and conditions contained herein until terminated in
accordance with Section 2.2. The period of time Employee is employed
by CompuCredit shall be collectively referred to as the “Term.”
2.2 Termination of
Employment.
(a) This
Agreement shall automatically and immediately terminate upon the death of
Employee.
(b) Either
party may terminate this Agreement upon the Complete Disability of Employee.
"Complete Disability", as used herein, shall mean the inability of Employee by
reason of any physical or mental impairment to perform fully and effectively, as
determined in the reasonable judgment of a competent physician selected in good
faith by CompuCredit, the Services on a full time basis for an aggregate of 90
days in any period of 180 consecutive days.
(c) In
addition to any other rights or remedies available to CompuCredit, CompuCredit
may, in its sole discretion, terminate Employee’s employment for Cause effective
immediately upon delivery of written notice to Employee. In this
Agreement, “Cause” means the reasonable, good faith determination of a majority
of the members of CompuCredit’s Board of Directors that:
(i) (A) Employee
has committed an act constituting fraud, deceit or intentional material
misrepresentation with respect to CompuCredit or any client, customer or
supplier of CompuCredit; (B) Employee has embezzled funds or assets from
CompuCredit or any client or customer of CompuCredit; (C) Employee has engaged
in willful misconduct or gross negligence in the performance of the Services;
(D) Employee has failed to comply in a material way with any of the terms of
Section 1 or Section 9 hereof;
(ii) Employee
has breached or defaulted in the performance of any other material provision of
this Agreement and has not cured such breach or default to CompuCredit’s
reasonable satisfaction within thirty (30) days after receiving notice thereof;
or
(iii) Employee’s
conduct is materially detrimental to the reputation of CompuCredit which
Employee has not cured (if such conduct is curable in Employer’s reasonable
opinion) to CompuCredit’s reasonable satisfaction within ten (10) days after
receiving notice thereof.
(d) In
addition to any other rights or remedies available to Employee, Employee may, in
his sole discretion, terminate Employee’s employment for Good Reason effective
immediately upon delivery of written notice to CompuCredit. In this
Agreement, “Good Reason” shall mean the occurrence of any one of the following
events:
(i) Employee’s
status or role within CompuCredit is demoted in any of the following
ways:
(A) a
material diminution in the scope and nature of Employee’s duties and
responsibilities or the assignment of duties and responsibilities inconsistent
with those generally associated with the position of primary executive of the
Credit Card Line of Business;
(B) Employee
no longer reports directly to the Chief Executive Officer or President of
CompuCredit; or
(C) a
reduction by CompuCredit of Employee’s base annual salary, incentive
compensation opportunity or a material reduction of Employee’s benefits (taken
as a whole) as in effect immediately prior to such reduction except as part of a
general reduction of compensation of the senior management of CompuCredit based
upon CompuCredit’s financial performance.
(ii) the
failure of a successor of CompuCredit to assume in writing this Agreement
contemporaneously to becoming a successor of CompuCredit;
(iii) CompuCredit
has materially breached or defaulted in the performance of any material
provision of this Agreement and has not cured such breach or default to
Employee’s reasonable satisfaction within thirty (30) days after receiving
notice thereof; or
(iv) CompuCredit
or its successor transfers Employee to a location more than 50 miles outside the
Atlanta, Georgia city limits.
(e) The date
on which Employee’s employment expires or terminates for any reason is referred
to herein as the “Termination Date.”
3. Compensation.
(a) During
the Term, CompuCredit shall pay Employee as compensation for the Services an
annual salary of $700,000. Such compensation shall be payable in
substantially equal bi-weekly installments or in such other installments or at
such other intervals as may be the policy of CompuCredit from time to time, but
no less frequently than monthly, and shall be subject to such deductions and
withholdings as are required by law or policies of CompuCredit in effect from
time to time.
(b) Executive’s
target bonus for each fiscal year during the Initial Term will be as
follows:
|
2007
|
$1,850,000
|
|
2008
|
$2,150,000
|
|
2009
|
$2,400,000
|
|
2010
|
$2,800,000
|
|
2011
|
$3,200,000
|
Prior to
March 15 of each fiscal year of CompuCredit during the Initial Term, CompuCredit
and Executive will agree upon performance goals for Executive’s target bonus for
such fiscal year, although all performance goals shall be subject to approval by
the Committee (as defined in CompuCredit’s 2004 Restricted Stock Plan or the
successor thereto (the “Stock Plan”)). Based upon the achievement of
the performance goals, Executive may earn all, part or none of the target
bonus. Subject to Section 11, any bonus that is earned shall be paid
in shares of Restricted Stock (as defined in the Stock Plan). The
number of shares of Restricted Stock paid shall be determined as soon as
practicable following the filing of CompuCredit’s Form 10-K with the Securities
and Exchange Commission for the relevant fiscal year and shall be based upon the
Fair Market Value (as defined in the Stock Plan) of CompuCredit’s common stock
at the end of the fiscal year. Shares of Restricted Stock shall be
deemed “awarded” as of the first day of the year following a fiscal year with
respect to which they are earned even though the precise number may not be
determinable at that time. Subject to the provisions of Sections 3(c)
to (f) and 11, any Restricted Stock that is awarded shall vest on March 15,
2012, provided that Executive has from the date hereof until March 15, 2012
remained in the full-time employment of CompuCredit. In the event
that Executive has not remained in the full-time employment of CompuCredit until
March 15, 2012, the Restricted Stock (or any substitute therefor) shall not vest
and shall be forfeited, except as otherwise provided herein. Each
grant of Restricted Stock shall be evidenced by a written agreement in
CompuCredit’s customary form, modified as necessary to reflect the provisions of
this Agreement. The actual bonus award will be determined as the
product of target bonus specified above multiplied by the ratio of CompuCredit’s
credit card line of business actual financial performance divided by the agreed
upon performance goal (the “Ratio”). For each fiscal year, the Ratio
must be a minimum of 70% in order for the Employee to receive a bonus for such
fiscal year. The Ratio shall be capped at 100%.
(c) Notwithstanding
anything to the contrary herein, if Employee’s employment is terminated by
CompuCredit for Cause or by Employee without Good Reason (except in the case of
death or Complete Disability of Employee), CompuCredit shall be released of its
obligation to pay further compensation or benefits to Employee as set forth in
this Agreement and any Restricted Stock or restricted stock units that have not
vested shall be forfeited and not vest; provided, however, that Employee shall
be entitled to receive any salary already earned under Section 3(a) as set forth
above.
(d) Notwithstanding
anything to the contrary herein, if Employee’s employment terminates as a result
of the Complete Disability of Employee, CompuCredit shall be released of its
obligation to pay further compensation or benefits to Employee as set forth in
this Agreement and any Restricted Stock or restricted stock units that have not
yet been awarded shall be forfeited and not vest; provided, however, that
Employee shall be deemed to be One Hundred Percent (100%) vested in all
Restricted Stock or restricted stock units that have been awarded prior to the
commencement of the Complete Disability of Employee, provided, further, subject to
Section 21 below, that Employee shall be entitled to receive his salary under
Section 3(a) above for a period of three (3) months following the determination
of Complete Disability of the Employee payable in substantially equal bi-weekly
installments or in such other installments or other intervals as may be the
policy of CompuCredit on the Termination Date, but no less frequently than
monthly, as set forth above.
(e) Notwithstanding
anything to the contrary herein, if Employee’s employment terminates as a result
of the death of Employee, CompuCredit shall be released of its obligation to pay
further compensation or benefits to Employee as set forth in this Agreement and
any Restricted Stock or restricted stock units that have not yet been awarded
shall be forfeited and not vest; provided, however, that
Employee shall be deemed to be One Hundred Percent (100%) vested in all
Restricted Stock and restricted stock units that have been awarded prior to the
death of Employee, provided, further, that
Employee’s estate shall be entitled to receive any salary already earned under
Section 3(a) as set forth above.
(f) Notwithstanding
anything to the contrary herein, if CompuCredit terminates Employee’s employment
for any reason other than for Cause or if Employee terminates this Agreement or
resigns for Good Reason, subject to Section 21 below, Employee shall be entitled
to receive (i) his then current base salary for the lesser of the remainder of
the Initial Term or twenty-four (24) months from the Termination Date payable
during such time in substantially equal bi-weekly installments or in such other
installments or other intervals as may be the policy of CompuCredit on the
Termination Date, but no less frequently than monthly, and (ii) Restricted
Stock/restricted stock units prorated for the period served for that calendar
year in which such termination occurs within thirty (30) days of the Termination
Date. The Employee shall not be obligated in any way to mitigate
CompuCredit’s obligations to him under this Section and any amounts earned by
Employee subsequent to his termination of employment shall not serve as an
offset to the severance payments due him by CompuCredit under this
Section. Further, Employee shall be deemed to be One Hundred Percent
(100%) vested in all Restricted Stock and restricted stock units previously
awarded to Executive; provided, however, that any
Restricted Stock or restricted stock units that have not yet been granted as of
the Termination Date shall be forfeited and not vest, except as provided in the
first sentence of this Section 3(f). Payments under this Section are
in addition to and not in lieu of any benefits under the other benefit programs
of CompuCredit. Without limiting the foregoing, to the extent
permitted by law, CompuCredit shall continue the medical, disability and life
insurance benefits which Executive was receiving at the time of termination
monthly for a period of twenty-four (24) months after the Termination Date or,
if earlier, until Employee has commenced employment elsewhere and becomes
eligible for participation in the medical, disability and life insurance
programs, if any, of his successor employer. Coverage under
CompuCredit’s medical, disability and life insurance programs shall cease with
respect to each such program as Employee becomes eligible for the medical,
disability and life insurance programs, if any, of his successor
employer. CompuCredit shall thereafter have no other obligation or
liability to Employee under this Agreement.
4. Vacation. During
the Term of this Agreement, Employee shall be entitled to such number of weeks
of paid vacation in each calendar year of the Term as is provided in, and in
accordance with, CompuCredit’s policies in effect from time to time for
management employees, but no less than 5 weeks per calendar year.
5. Benefits. During
the Term of this Agreement, Employee and, as applicable, Employee’s family,
shall also have the right to participate in any employee benefit plans or other
fringe benefits adopted by CompuCredit for its officers and/or other key
management employees or as a part of CompuCredit’s regular compensation
structure for its employees, including plans (to the extent offered) providing
group hospitalization, medical, dental, accidental death and disability and
long-term disability income replacement insurance benefits and any retirement
income, capital accumulation, deferred compensation and incentive compensation
plans, but only if and to the extent provided from time to time in such
executive benefits plans and for so long as CompuCredit provides or offers such
benefit plans. Notwithstanding the foregoing, the Employee
acknowledges that the Restricted Stock that may be granted pursuant to Section 3
hereof, if actually granted, is in lieu of any options or other equity-based
compensation for which Employee may otherwise be eligible between January 1,
2007 and December 31, 2011.
6. Reimbursement for
Expenses. CompuCredit shall reimburse Employee for reasonable
out-of-pocket expenses incurred by Employee in connection with the performance
of the Services hereunder for travel, entertainment and other miscellaneous
expenses to the extent such expenses are consistent with CompuCredit’s
reimbursement policy as the same shall be in effect from time to
time. Reimbursement shall be made only against an itemized list of
such expenses submitted to CompuCredit by Employee within thirty (30) days after
being incurred, and, to the extent requested by CompuCredit, receipts and
invoices evidencing such expenses. In no event shall any such
reimbursement be made later than thirty (30) days after the period for
submitting such itemized list expires.
7. Confidentiality.
(a) Proprietary
Information. Employee acknowledges that as an employee of
CompuCredit, he may from time to time have access to and be provided with trade
secrets (as defined under applicable law), and other confidential, secret and
proprietary information including without limitation, financial statements or
information, technical or nontechnical data, formulae, compilations, programs,
methods, data, financial plans, models, product plans, marketing or sales
strategies, portfolio information, or lists of actual or potential borrowers,
loan program participants or other customers not generally available to the
public concerning any aspect of the products, services or businesses of
CompuCredit, its affiliates, or its and their officers, directors, employees,
advisers, agents or other personnel (collectively, “Proprietary
Information”). Employee agrees that he will not, directly or
indirectly, disclose, publish, disseminate or use any Proprietary Information
except in connection with the performance of the Services. If
disclosure of any Proprietary Information is required by law, a court or agency
of the government, then Employee may make such disclosure after providing
CompuCredit with reasonable notice, to the extent that providing such notice to
CompuCredit is legally permissible, so that CompuCredit may seek protective
relief.
(b) Notwithstanding
the provisions of Section 7(a) above, the following shall not be considered to
be Proprietary Information: (i) any information that was in the public domain
through no fault or act of Employee prior to the disclosure thereof to Employee;
(ii) any information that came to Employee during any employment prior to that
with CompuCredit; (iii) any information that comes into the public domain
through no fault or act of Employee; and (iv) any confidential business
information that is not a trade secret on and after the three (3) year
anniversary of the Termination Date; provided, however, that the
limited duration of the confidentiality obligation with regard to Proprietary
Information not constituting a trade secret shall not operate or be construed as
affording Employee any right or license thereafter to use Proprietary
Information, or as a waiver by CompuCredit of the rights and benefits otherwise
available to CompuCredit under the laws governing the protection and
enforceability of patents, trade secrets and other intellectual
property.
(c) Return of
Materials. On or before the Termination Date, or when
otherwise requested by CompuCredit, Employee will deliver promptly to
CompuCredit all Proprietary Information and all other files, customer lists,
management reports, drawings, memoranda, forms, financial data and reports and
other materials or documents and equipment provided to, or obtained or created
by Employee in connection with the Services (including all copies of the
foregoing, and including all notes, records and other materials of or relating
to CompuCredit or its customers) in his possession or control and shall destroy
all other Proprietary Information in his possession.
8. Transfer and Assignment to
CompuCredit.
(a) To the
greatest extent possible, any Work Product will be “work made for hire” (as
defined in the Copyright Act, 17 U.S.C.A. § 101 et seq., as amended)
and owned exclusively by CompuCredit. In this Agreement, “Work
Product” means work product, property, data, documentation, “know-how,”
concepts, plans, inventions, improvements, techniques, processes or information
of any kind, prepared, conceived, discovered, developed or created by Employee
while employed by CompuCredit Employee hereby unconditionally and irrevocably
transfers and assigns to CompuCredit all right, title and interest Employee has
or will have, by operation of law or otherwise, in or to any Work Product,
including, without limitation, all patents, copyrights, trademarks, service
marks, trade secrets and other intellectual property rights Employee agrees to
execute and deliver to CompuCredit any transfers or other instruments which
CompuCredit may deem necessary or appropriate to vest complete title and
ownership of any Work Product, and all rights therein, exclusively in
CompuCredit.
(b) Power of
Attorney. Employee hereby irrevocably constitutes and appoints
CompuCredit as his agent and attorney-in-fact, with full power of substitution,
in the name, place and stead of Employee, to execute and deliver any and all
assignments or other instruments described in Section 8(a) above that Employee
fails or refuses promptly to execute and deliver. The foregoing power
and agency are coupled with an interest and are irrevocable.
9. Covenant Against
Competition.
(a) Employee
acknowledges that the Proprietary Information that he has acquired and will
acquire, prior to and during the Term, includes and will include information
that could be used by Employee on behalf of a Competitor (as hereinafter
defined), its affiliates or others to the substantial detriment of
CompuCredit. Moreover, the parties recognize that Employee during the
course of his employment with CompuCredit will develop important relationships
with customers, suppliers and others having valuable business relationships with
CompuCredit. In view of the foregoing, Employee acknowledges and
agrees that the restrictive covenants contained in this Agreement are reasonably
necessary to protect CompuCredit’s legitimate business interests and
goodwill.
(b) Definitions.
(i) “Competitive Position”
- (A) the direct or indirect equity ownership (excluding ownership of less than
2% of the equity of an entity listed on a national U.S. exchange) or control of
all or any portion of a “Competitor” (as hereinafter defined), or (B) any
employment, consulting, partnership, advisory, directorship, agency, promotional
or independent contractor arrangement between Employee and any
Competitor.
(ii) “Competitor” - Any
entity that provides services substantially similar to the Company Services and
the revenues and assets from which represent more than 20% of the revenues or
assets of such entity.
(iii) “Customers” - All
persons within the Territory during the one-year period prior to the Termination
Date (A) to whom Employee offered or sold any of CompuCredit’s products or
services (including, without limitation, any opportunity to participate in any
loan program established by CompuCredit), (B) to whom were offered or sold any
of CompuCredit’s products or services or about whom Employee had Proprietary
Information, (C) who were approached by CompuCredit with regard to a product, or
(D) who were identified as potential customers by CompuCredit’s models or
processes.
(iv) “Company Services” -
(A) purchasing, holding, and selling credit card or auto, micro or home equity
loans (purchased, held or sold by CompuCredit), or portfolios thereof, or both,
(B) providing credit card or auto, micro or home equity loan servicing services
or (C) engaging in the business of making credit card or auto, micro or home
equity loans to consumers.
(v) “Territory” - The
United States, which is the territory within which customers and accounts of
CompuCredit will be located and where Employee will provide Services during the
term of his employment under this Agreement.
(c) Covenants of
Employee. In consideration of Employee’s employment by
CompuCredit upon the terms and conditions of this Agreement, and based on and
subject to the provisions set forth in Section 9(a) above, Employee agrees that,
during the Term and for a period of one (1) year from and after the termination
of Employee’s employment hereunder by CompuCredit for Cause or by the Employee
without Good Reason, Employee will not, without the prior written consent of
CompuCredit, directly or indirectly for or on behalf of any person other than
CompuCredit, as principal, agent or otherwise:
(i) take any
action in furtherance of a Competitive Position; or
(ii) solicit
Customers for the purpose of providing services competitive with any of the
Company Services; or
(iii) solicit
or induce (or attempt to do so) to leave employment with CompuCredit anyone who
is or was, during the last year of Employee’s relationship with CompuCredit, an
employee of CompuCredit or an affiliated entity.
(d) Employee
hereby represents and warrants to CompuCredit that he is not now a party to any
agreement, court order, decree or other restriction that restricts him from
using or disclosing to any party any information deemed to be proprietary or
confidential or deemed to be a trade secret, of which in any way restricts
Employee from engaging in or rendering any of the Services.
10. Restrictions Upon Sale of
Shares. In further consideration of the terms of employment
granted herein by CompuCredit to Employee, Employee hereby agrees that in
selling any CompuCredit shares of common stock during the Term, he will advise
CompuCredit in advance of such sales and will use reasonable efforts to effect
such sales so as to minimize any adverse consequences to transactions proposed
by CompuCredit that involve its common stock.
11. Certain Covenants If
CompuCredit Goes Private or There is a Change of Control or Diminution of Book
Value.
(a) If at any
time prior to March 15, 2012, CompuCredit becomes a “private” company (which,
for purposes hereof, means a company whose shares of common stock are no longer
traded on a national securities exchange and /or are owned beneficially by not
more than 100 shareholders) while still being controlled by a “permitted owner”
as defined below (any such occurrence, a “Going-private Transaction”), then (i)
one-half of the shares of Restricted Stock that had been awarded prior to the
Going-private Transaction shall immediately vest and shall correspondingly be
sold as part of the Going-private Transaction, and (ii) the remaining one-half
of the shares of Restricted Stock that had been awarded prior to the
Going-private Transaction shall be converted into “restricted stock units” on
the basis of one unit per share of Restricted Stock. Provided that
Executive has from the date hereof until March 15, 2012 remained in full-time
employment of CompuCredit, these restricted stock units shall vest on March 15,
2012, at which time CompuCredit immediately shall redeem the restricted stock
units based upon their fair market value as of the end of fiscal year
2011. In addition, notwithstanding the provisions of Section 3(b),
any bonuses that are earned subsequent to a Going-private Transaction shall be
paid in restricted stock units rather than Restricted Stock.
(b) If at any
time during the Initial Term a “change in control” of CompuCredit occurs, any
Restricted Stock and restricted stock units that prior thereto had been awarded
shall immediately vest and be redeemed by CompuCredit immediately and any future
bonuses provided for in Section 3(b) shall be paid in cash rather than in shares
of Restricted Stock. For these purposes, a “change in control” shall
mean the cumulative sale of more than 60% of the credit card portfolio (measured
by number of accounts or dollar receivables) to any entity, for any purpose
other than for securitization purposes, in any consecutive 12 month period or
the acquisition of 50% or more of the “beneficial ownership” of the voting
equity securities of CompuCredit (on a fully diluted as-converted basis) by any
person or “group” (with the terms “beneficial ownership” and “group” having the
meanings given to them for purposes of Schedule 13D under the Securities
Exchange Act of 1934, as amended) other than (i) Xxxxx X. Xxxxx, III, Xxxxx X.
Xxxxx, their spouses, their descendants and the spouses of their descendants,
(ii) trusts and other entities established generally for the benefit of Xxxxx X.
Xxxxx, III, Xxxxx X. Xxxxx, their spouses, their descendants and the spouses of
their descendants, and/or (iii) charitable trusts, foundations or similar
entities established by any of the foregoing.
(c) For the
purposes of Section 11(a) and 11(b), the fair market value of the restricted
stock units shall be computed by applying price-to-book ratio implicit in the
Going-private Transaction to the book value of CompuCredit for the fiscal year
for which the bonus is being computed and, in the case of redemption in 2012,
for fiscal year 2011, but in no event shall the fair market value on redemption
be less than the amount of the bonuses that generated the restricted stock
units. To the extent that any payment to redeem the restricted stock
units on a Going-private Transaction or in connection with a “change in control”
would not be permitted to be paid under Section 409A of the Code at the times
set forth in Section 11(a) and 11(b) above, the portion of the payment for the
restricted stock units that may not be made at such time shall instead be made
on March 15, 2012.
12. Indemnification. In
the event that the Employee is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a “claim” by reason of (or arising in part out of) an
“indemnifiable event,” CompuCredit shall indemnify Employee to the full extent
authorized or permitted by law as soon as practicable after written demand is
presented to CompuCredit, against any and all “expenses,” judgments, fines,
penalties, and amounts paid in settlement (including interest, assessments and
other charges paid or payable in connection with or in respect of such expenses,
judgments, fines or settlement) of such claim, provided that CompuCredit shall
be obligated to indemnify only for settlements that it has approved in advance,
which approval shall not be unreasonably withheld. For these
purposes, (i) a “claim” shall include any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation, whether instituted
by or in the right of CompuCredit or any other party, which Employee believes in
good faith might lead to the institution of any such action, suit or proceeding,
whether civil, administrative, investigative or other, arising in connection
with an indemnifiable event, (ii) “expenses” includes attorneys’ fees and all
other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in (including an
appeal), or preparing to defend, be a witness in or participate in any claim
relating to an indemnifiable event, provided that any attorney representing
Employee shall cooperate fully with CompuCredit and its attorneys in order to
minimize the duplication of expenses; and (iii) an “indemnifiable event” means
any event or occurrence related to the fact the Employee is or was an executive
officer of CompuCredit, or is or was serving at the request of CompuCredit as a
director, officer, or trustee of another corporation, trust or other enterprise,
or by anything done or not done by Employee in such capacity. Any
payment to be made hereunder shall be paid as soon as administratively
practicable but in no event later than the end of the year following the year in
which occurs the settlement or other event for which such indemnification is to
be provided.
13. Interpretation;
Severability. All rights and restrictions contained in this
Agreement may be exercised and shall be applicable and binding only to the
extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary so that they will not render this Agreement
illegal, invalid or unenforceable. It is understood and agreed that
the provisions hereof are severable; if such provisions shall be deemed invalid
or unenforceable as to any period of time, territory, or business activity, such
provisions shall be deemed limited to the extent necessary to render it valid
and enforceable, and the unenforceability of any provisions hereof shall not in
any event cause any other provision hereof to be unenforceable. No
provision of this Agreement shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
14. Relief. In
the event of any threatened or actual breach of the provisions of this Agreement
by either party, the other party shall be entitled to injunctive relief in
addition to any other remedies it may have at law or in equity.
15. Nonwaiver. Failure
of either party to insist, in one or more instances, 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 hereunder 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 or on behalf of both parties.
16. Notices. Any
notice or other communication required or permitted hereunder shall be deemed
sufficiently given if delivered by hand or sent by registered or certified mail,
return receipt requested, postage and fees prepaid, addressed to the party to be
notified as follows:
(a) If to
CompuCredit: CompuCredit
Corporation
000
Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attn: Xxxxx
X. Xxxxx
(b) If to
Employee: Xxxxxxxxxxxx
Xxxxxxxxxx
or in
each case to such other address as either party may from time to time designate
in writing to the other. Such notice or communication shall be deemed
to have been given as of the date so delivered or five (5) days after the date
so mailed.
17. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
18. Entire Agreement;
Amendment. This Agreement contains the sole and entire
agreement between the parties hereto with respect to CompuCredit’s employment of
Employee and supersedes all prior discussions and agreements between the parties
relating to such employment, and any such prior agreements shall, from and after
the date hereof, be null and void. Employee is a sophisticated
business person and has received such documents and other information as he has
deemed necessary to make his own independent judgment as to the merits of this
Agreement and the remuneration that he will receive as a result hereof; further,
it is hereby agreed by Employee that neither CompuCredit nor any affiliated
entities have made any representation to Employee other than those specifically
set forth in this Agreement. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of the parties
hereto. Furthermore, if any portion of this Agreement conflicts with
any future agreement signed between CompuCredit and Employee, this Agreement
shall control unless such future agreement clearly specifies that it is intended
to supercede all or a specific provision of this Agreement.
19. Parties
Benefited. This Agreement shall inure to the benefit of, and
be binding upon Employee, CompuCredit, and their respective heirs, legal
representatives, successors and assigns; provided that, as to Employee, this is
a personal service contract and Employee may not assign this Agreement or any
part hereof.
20. Tax
Consequences. CompuCredit shall have no obligation to Employee
with respect to any tax obligation Employee incurs as a result of or
attributable to this Agreement, including all supplemental agreements and
employee benefit plans, if any, in which Employee may hereafter participate, or
arising from any payments made or to be made hereunder or
thereunder.
21. Counterparts. This
Agreement may be executed in counterparts, each of which shall for all purposes
be deemed an original, and all of such counterparts shall together constitute
one and the same agreement.
22. Nonqualified Deferred
Compensation Omnibus Provision. It is intended that any
payment or benefit which is provided pursuant to or in connection with this
Agreement which is considered to be deferred compensation subject to Section
409A of the Internal Revenue Code shall be paid and provided in a manner, and at
such time, including without limitation, payment and provision of benefits only
in connection with the occurrence of a permissible payment event contained in
Section 409A (e.g., death, disability, separation from service from CompuCredit
and its affiliates as defined for purposes of Section 409A of the Internal
Revenue Code), and in such form, as complies with the applicable requirements of
Section 409A of the Internal Revenue Code to avoid the unfavorable tax
consequences provided therein for non-compliance. In connection with
effecting such compliance with Section 409A of the Internal Revenue Code, the
following shall apply:
(a) Neither
Employee nor CompuCredit shall take any action to accelerate or delay the
payment of any monies and/or provision of any benefits in any manner which would
not be in compliance with Section 409A of the Internal Revenue Code (including
any transition or grandfather rules thereunder).
(b) If
Employee is a specified employee for purposes of Section 409A(a)(2)(B)(i) of the
Internal Revenue Code, any payment or provision of benefits in connection with a
separation from service event (as determined for purposes of Section 409A of the
Internal Revenue Code) shall not be made until the earlier of (i) Employee’s
death or (ii) six (6) months after Employee’s separation from service
(the “409A Deferral Period”). In the event such payments are
otherwise due to be made in installments or periodically during the 409A
Deferral Period, the payments which would otherwise have been made in the 409A
Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A
Deferral Period ends, and the balance of the payments shall be made as otherwise
scheduled. In the event benefits are required to be deferred, any
such benefits may be provided during the 409A Deferral Period at Employee’s
expense, with Employee having a right to reimbursement from CompuCredit once the
409A Deferral Period ends, and the balance of the benefits shall be provided as
otherwise scheduled.
(c) For
purposes of this Agreement, all rights to payments and benefits hereunder shall
be treated as rights to receive a series of separate payments and benefits to
the fullest extent allowed by Section 409A of the Internal Revenue
Code.
(d) For
purposes of determining time of (but not entitlement to) payment or provision of
deferred compensation under this Agreement under Section 409A of the Internal
Revenue Code in connection with a termination of employment, termination of
employment will be read to mean a “separation from service” within the meaning
of Section 409A of the Internal Revenue Code where it is reasonably anticipated
that no further services would be performed after that date or that the level of
bona fide services Employee would perform after that date (whether as an
employee or independent contractor) would permanently decrease to no more than
twenty percent (20%) of the average level of bona fide services performed over
the immediately preceding thirty-six (36) month period.
(e) For
purposes of this Agreement, a specified employee for purposes of Section
409A(a)(2)(B)(i) of the Internal Revenue Code shall be determined on the basis
of the applicable 12-month period ending on the specified employee
identification date designated by CompuCredit consistently for purposes of this
Agreement and similar agreements or, if no such designation is made, based on
the default rules and regulations under Section 409A(a)(2)(B)(i) of the Internal
Revenue Code.
(f) Notwithstanding
any other provision of this Agreement, CompuCredit shall not be liable to
Employee if any payment or benefit which is to be provided pursuant to this
Agreement and which is considered deferred compensation subject to Section 409A
of the Internal Revenue Code otherwise fails to comply with, or be exempt from,
the requirements of Section 409A of the Internal Revenue Code.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
COMPUCREDIT
CORPORATION
By: /s/ Xxxxx X.
Xxxxx
Xxxxx X.
Xxxxx, Chief Executive Officer
/s/ Xxxxxxxxxxxx
Xxxxxxxxxx
Xxxxxxxxxxxx
Xxxxxxxxxx
