EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of the 15th day of March, 2001, by and between COMPUCREDIT
CORPORATION, a Georgia corporation ("CompuCredit"), and XXXXXXX X. XXXXXXX,
an individual resident of the State of Georgia ("Employee").
W I T N E S S E T H:
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WHEREAS, the parties hereto desire to enter into a written
agreement for the employment of Employee by CompuCredit on the terms and
conditions hereinafter stated which shall supersede any and all written or
oral arrangements between the parties concerning the subject matter hereof,
including, without limitation, that certain Employment Agreement between
CompuCredit and Employee dated as of January 1, 1999, as amended from time to
time (the "Previous Employment Agreement");
NOW, THEREFORE, for and in consideration of 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 agree as follows:
1. RELATIONSHIP ESTABLISHED. Upon the terms and subject to the
conditions of this Agreement, CompuCredit hereby employs Employee to perform
services (the "Services") for CompuCredit as its Chief Operating Officer and
as delegated to him from time to time by the Chief Executive Officer of
CompuCredit, or his designee, consistent with those generally associated with
that position. Employee hereby agrees to devote substantially all of his
business efforts toward performing the Services, which efforts shall
constitute not less than a minimum average of forty (40) hours per week. In
his performance of the Services, Employee 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 shall commence on the date hereof and shall continue for an
initial term (the "Initial Term") of three (3) years, unless sooner
terminated in accordance with Section 2.2. Upon expiration of the Initial
Term, Employee's employment hereunder shall be continued (upon the same
terms, subject to the same conditions and at the same salary as Employee was
paid during the last year of the Initial Term or at a salary agreed to by
both CompuCredit and Employee) after such expiration indefinitely on an at
will basis, subject to termination at any time by either party on not less
than thirty (30) days prior written notice by either party, or as otherwise
provided
pursuant to Section 2.2 of this Agreement. The Initial Term and any
additional period of time Employee is employed by CompuCredit thereafter
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; or
(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 this
Agreement 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 Board of Directors of CompuCredit that:
(i) (A) Employee has committed an act
constituting fraud, moral turpitude, 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,
customer or supplier of CompuCredit; or (C) Employee has
engaged in willful misconduct or gross negligence in the
performance of the Services;
(ii) Employee has breached or defaulted in the
performance of any 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 (provided that any breach by Employee
of any obligation under Section 9 will be grounds for
immediate termination for "Cause" without any notice or right
to cure); or
(iii) Employee's conduct is materially detrimental
to the reputation of CompuCredit which Employee has not cured
(if such conduct is curable in CompuCredit's reasonable
opinion) to CompuCredit's reasonable satisfaction within ten
(10) days after receiving notice thereof.
(d) The date on which this Agreement expires or terminates
for any reason is referred to herein as the "Termination Date."
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(e) Employee may terminate this Agreement following a
Change of Control (as defined below), by providing CompuCredit at least
thirty (30) days prior written notice of termination. For purposes of this
Agreement, "Change of Control" shall mean the acquisition by any single
person or entity or related persons or entities of either substantially all
the assets of CompuCredit or more than fifty percent (50%) of the outstanding
and issued common stock of CompuCredit.
3. COMPENSATION.
(a) During the Initial Term, CompuCredit shall pay
Employee as compensation for the Services an annual salary equal to $175,000.
Such compensation shall be payable in substantially equal semi-monthly
installments or in such other installments or at such other intervals as may
be the policy of CompuCredit from time to time, and shall be subject to such
deductions and withholdings as are required by law or policies of CompuCredit
in effect from time to time. Employee's salary per annum may from time to
time be adjusted as agreed in writing by both CompuCredit and Employee.
(b) Notwithstanding anything to the contrary herein, if
this Agreement is terminated for any of the reasons set forth in Section 2
hereof, CompuCredit shall be released of its obligation to pay further
compensation or benefits to Employee as set forth in this Agreement (except
for salary already earned under Section 3(a) hereof) and Employee will not be
entitled to any severance or other benefits upon any termination of his
employment hereunder.
(c) If, during the Initial Term, CompuCredit defaults
hereunder by terminating this Agreement (other than pursuant to Section 2
hereof), Employee shall be entitled to compensation paid in accordance with
this Section 3 for the remainder of the Initial Term.
4. VACATION. 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.
5. BENEFITS. Employee shall be entitled to participate in
executive employee benefit plans generally provided by CompuCredit to its
executives, 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.
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.
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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 as authorized herein. Employee may use Proprietary
Information to perform the Services but in doing so will only allow
dissemination of Proprietary Information to any individual, corporation,
partnership, limited liability company, joint venture, association, joint
stock company, government agency, trust, trustee, entity, unincorporated
organization or any other entity on a strict need-to-know basis (provided
such persons are first informed of the confidential nature of such
Proprietary Information and directed to use or disclose it only as permitted
herein). 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) NON-PROPRIETARY INFORMATION. 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 comes into the public domain through no
fault or act of Employee; (iii) any information that is disclosed without
restriction to Employee by a third party (which term shall not include any
equity holder, affiliate, or counsel, accountants and other non-employee
representatives of affiliated entitles, or of any of their respective equity
holders, affiliates or related persons) having the legal right to make such
disclosure, and (iv) any confidential business information that is not a
trade secret on 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
secret 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,
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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 their
respective customers) in his possession or control.
8. TRANSFER AND ASSIGNMENT TO COMPUCREDIT.
(a) TRANSFER AND ASSIGNMENT OF WORK PRODUCT. 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. Section. 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 in
connection with the performance of the Services. 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 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. If this Agreement is terminated by
CompuCredit otherwise than in accordance with Section 2.2 hereof, Employee
will only be bound by the covenant against competition if he is paid at his
then current salary for the one (1) year period of time from and after the
Termination Date.
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(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 major U.S. exchange or traded
on a NASDAQ over-the-counter market) or control of all or any
portion of a Competitor, or (B) any employment, consulting,
partnership, advisory, directorship, agency, promotional or
independent contractor arrangement between Employee and any
Competitor whereby Employee is required to perform services
substantially similar to the Services.
(ii) "COMPETITOR"- Any person or entity who provides
products or services substantially similar to Company Services
(as hereinafter defined).
(iii) "CUSTOMERS"- All persons or entities within
the Territory (as hereinafter defined) during the one-year
period prior to the Termination Date (A) to whom Employee
offered or sold any of the 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
services, or (D) who were identified as potential customers by
CompuCredit's models or processes.
(iv) "COMPANY SERVICES"- (A) purchasing, holding,
and selling credit card and home equity loans (purchased, held
or sold by CompuCredit), or portfolios thereof, or both, (B)
servicing services, and (C) engaging in the business of making
credit card and 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 and CompuCredit's providing to Employee the
consideration described in Section 3 above, 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 this
Agreement for any reason, Employee will not, without the prior written
consent of CompuCredit, directly or indirectly for or on behalf of any person
or entity other than CompuCredit, as principal, agent or otherwise:
(i) take any action in furtherance of a Competitive
Position, including, without limitation, entering into a
Competitive Position; or
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(ii) solicit, entice or induce Customers for the
purpose of providing services competitive with any of the
Company Services; or
(iii) solicit, entice 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 affiliate who
would provide similar services to a Competitor.
(d) Employee hereby represents and warrants to CompuCredit
that he is not now a party to any agreement, court order, decree or other
restriction which 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. 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.
11. RELIEF. In the event of any threatened or actual breach of
the provisions of this Agreement by either party, including, without
limitation, the provisions of Section 9, the other party shall be entitled to
specific performance and injunctive relief in addition to any other remedies
it may have at law or in equity.
12. 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.
13. 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:
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(a) If to CompuCredit: CompuCredit Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
(b) If to Employee: Xxxxxxx X. Xxxxxxx
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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.
14. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Georgia.
15. 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, including,
without limitation, the Previous Employment Agreement, and any such prior
agreements shall, from and after the date hereof, be null and void. Employee
is a sophisticated businessperson 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 its affiliates 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 all of the parties hereto.
16. 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.
17. 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.
18. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
COMPUCREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx,
Chairman and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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