Exhibit 10.3
March 6, 2006
Xxxx X. Xxxxxxxxxx
President and Chief Executive Officer
Financial Federal Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
RE: Supplemental Retirement Benefits
Dear Xxxx:
The purpose of this letter is to amend and restate your June 4,
2002 Supplemental Retirement Benefits agreement ("SERP") with
Financial Federal Corporation (the "Company") as provided herein.
The only substantive provisions being amended from your existing
SERP are to provide that, commencing after the date of this
letter, you will be entitled to receive cash dividend equivalent
payments on all of your SERP outstanding stock units to the
extent that the Company pays cash dividends on Company common
shares and that you may satisfy applicable tax withholding
through share withholding from your vested stock units. In
addition, this amended and restated SERP reflects the Company's
conforming adjustments to the number of outstanding SERP stock
units to reflect the Company's three-for-two stock split/stock
dividend that was effected earlier in 2006 (the "Stock
Dividend"). In all other substantive respects, your SERP remains
unchanged. This amended and restated SERP completely replaces
and supersedes the prior SERP and any other oral or written
understandings on this subject. Please sign and date below to
indicate your acceptance and agreement as to this amended and
restated SERP.
The Company desires to provide you with a competitive benefit
upon your Retirement from serving as the Company's Chief
Executive Officer ("CEO"). The Company therefore approved a
supplemental retirement benefit for you as described in this
letter agreement. In connection with the adoption of this SERP
on June 4, 2002, the Company granted you 100,000 "stock units"
(pre-Stock Dividend adjustment) subject to the vesting
requirements of this letter agreement. As a result of the
Company's adjustment to the SERP's Stock Units because of the
January 2006 Stock Dividend, this figure is now 150,000 Stock
Units and all Stock Unit figures below reflect this Stock
Dividend adjustment. One stock unit represents a hypothetical
share of the Company's common stock ("Stock Unit"). For purposes
of this agreement, "Retirement" shall mean that you cease serving
as the CEO due to your employment with the Company or a Company
subsidiary having terminated for any reason (other than due to
death, Disability or by the Company or a Company subsidiary for
Cause) on or after the attainment of the age of sixty-two).
For purposes of this amended and restated SERP, your Stock Units
will vest at a rate of 12.5% per year for each full year of your
service as the Company's CEO starting January 1, 2002 (with
vesting occurring incrementally on January 1st of each year
starting in 2003; provided, however, you are still CEO of the
Company at that time), up to a maximum of 150,000 Stock Units as
shown in the following vesting schedule:
Stock Units Total Vested
Vesting Date Vesting Stock Units
--------------- ----------- ------------
January 1, 2003 18,750 18,750
January 1, 2004 18,750 37,500
January 1, 2005 18,750 56,250
January 1, 2006 18,750 75,000
January 1, 2007 18,750 93,750
January 1, 2008 18,750 112,500
January 1, 2009 18,750 131,250
January 1, 2010 18,750 150,000
If you voluntarily resign as CEO or your service as CEO is
terminated for "Cause" (as defined below), your unvested Stock
Units at the time of your termination of service will be
forfeited to the Company; provided, further, that your vested
Stock Units shall also be forfeited to the Company if any of the
reasons for the termination for Cause was pursuant to either
subsection (c) and/or (d) below in the definition of Cause (and
where for (d) the felony related to the business of the Company).
Your unvested Stock Units will fully vest earlier upon the
occurrence of any of the following; provided you are still
serving as CEO of the Company on the date of such accelerating
event:
(i) a Sale of Company (which means there is a
sale of all or substantially all of the
assets (exclusive of securitized assets) or
stock of the Company);
(ii) your death;
(iii) termination of your service as CEO due
to Disability (which means a permanent and
total disability within the meaning of
Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended ("Code"));
(iv) if your service as CEO is terminated
without "Cause" by the Company (as defined
below); or
(v) if you terminate your service as CEO for
"Good Reason" (as defined below).
For purposes of this amended and restated SERP, Cause shall mean
the good faith determination by the Company in its sole
discretion that your continuous service as CEO should be
terminated due to one or more of the following:
(a) You have engaged in an act or acts of gross misconduct
or negligence that have materially harmed or materially
damaged the Company. You will be notified in writing of
such misconduct or negligence and such notice will
specifically reference potential termination of service as
CEO;
(b) Your repeated failure to follow the lawful instructions
of the Company following written notice. Such written
notice will specifically reference potential termination of
service as CEO;
(c) You have misappropriated Company property;
(d) You have been convicted of, or plead "no contest" to, a
felony; or
(e) You have exhibited a repeated inability to competently
perform the essential functions of your job which has been
memorialized in the Company's records and has resulted in
material harm or material damage to the Company.
For purposes of this amended and restated SERP, termination of
your continuous service as CEO by you for "Good Reason" shall
mean your resignation of service as CEO of the Company within
thirty (30) days after the occurrence (without your written
consent) of any of the following:
(a) Any reduction (in the aggregate) in your base salary by
more than 25%, unless all similarly situated executives
incur the same proportionate reduction in base salary; or
(b) A material diminishment in your position, job duties
and/or responsibilities (this shall include, but not be
limited to, you no longer serving as the CEO).
Your vested Stock Units, if any, will be paid to you in the form
of the Company's common shares. Such benefits, if any, shall be
paid upon:
(i) age 62 if your service as CEO has
previously terminated as a result of a
voluntary resignation or by the Company for
Cause (except if any of the reasons for the
termination for Cause was pursuant to either
subsection (c) and/or (d) in the definition
of Cause (and where for (d) the felony
related to the business of the Company).
(ii) the date your service as CEO terminates
due to your Retirement after reaching age 62;
(iii) your death;
(iv) a Sale of Company;
(v) the date your service as CEO is
terminated without Cause by the Company or
due to your resignation with Good Reason; or
(vi) your Disability.
Notwithstanding the foregoing, the payment events listed in (i)-
(vi) above shall be interpreted to comply with Section 409A of
the Code and any applicable guidance and Treasury regulations,
including (but not limited to) that payments on account of a
"separation from service" will be delayed six months if you are a
"specified employee" at the time of such separation from service.
If you die prior to commencement of benefits and you were still
CEO at the time of your death, then the person who is your spouse
on the date of this letter ("Spouse") (or your Beneficiary if
your Spouse has predeceased you or is not married to you at the
time of your death) shall receive the benefit you would have
received had there been a Sale of Company on the day before
death. "Beneficiary" shall be the individual(s) designated by
you on a form accepted by the Company's Executive Compensation
and Stock Option Committee, or if none, your estate.
Stock Units are not shares of the Company. You are not entitled
to any stockholder rights (including but not limited to any
rights to vote shares) with respect to your Stock Units prior to
settlement of shares of Company common stock. However, you will
be entitled to receive cash dividend equivalents on your
outstanding Stock Units to the extent that the Company declares
and pays any future cash dividends on Company common stock. The
amount of any such cash dividend equivalents will be determined
in the same manner as for cash dividends that are paid to Company
common stockholders. Any cash dividend equivalents will paid to
you at the same time as the actual cash dividends that are paid
to Company common stockholders, provided, however, that in all
events your dividend equivalents shall be paid to you no later
than the 15th day of the third month of the calendar year
following the year in which you became entitled to receive such
dividend equivalent payment. If after the date of the SERP's
adoption, the outstanding shares of the Company's common stock
are increased or decreased or changed into or exchanged for a
different number or kind of shares of stock or other securities
of the Company or of another corporation through reorganization,
merger, consolidation, recapitalization, reclassification, stock
split, split-up, combination or exchange of shares or declaration
of any dividends payable in Common Stock, the Company shall
appropriately adjust the number of Stock Units (to the nearest
whole number) and such adjustments shall be effective and binding
for all purposes of this amended and restated SERP.
You are a general unsecured creditor with respect to the payment
of any benefit hereunder and any such benefit is subject to the
claims of the Company's creditors. You may not assign this
benefit.
The delivery of any benefits to you or your Beneficiary under
this amended and restated SERP shall be subject to your (or your
Beneficiary's) timely satisfaction of any required tax
withholding obligations as required by the applicable laws then
in effect. Such tax withholding obligations may (at your
election) be settled by the Company withholding and retaining a
portion of the common shares from the shares that would otherwise
be deliverable to you under the vested Stock Units. Such
withheld shares will be applied to pay the withholding obligation
by using the aggregate fair market value of the withheld shares
as of the date of settlement of the Stock Units. You will be
delivered the net amount of vested common shares after the share
withholding has been effected and you will not receive the
withheld shares.
This letter agreement may only be amended by written agreement
between you and the Company.
We are pleased to provide you with his valuable benefit in
recognition of your exceptional services to the Company.
Sincerely,
----------------------------
ACCEPTED AND AGREED:
-------------------------------------
Xxxx X. Xxxxxxxxxx March 6, 2006
