________________________________________________________________________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported):
December 23, 2008
CompuCredit
Corporation
(Exact
name of registrant as specified in its charter)
Georgia
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000-25751
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58-2336689
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(State or other
jurisdiction of incorporation)
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(Commission File
Number)
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(I.R.S. Employer
Identification No.)
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Five
Concourse Parkway, Suite 400, Atlanta, Georgia, 30328
(Address
of principal executive offices)
Registrant's telephone number, including area
code:
770-828-2000
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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________________________________________________________________________
Item
1.01.
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Entry
into a Material Definitive
Agreement.
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As
described in Item 5.02 below, on December 23, 2008, CompuCredit Corporation (the
“Company”) amended and restated its existing employment agreements with each of
David G. Hanna (Chief Executive Officer), J.Paul Whitehead, III (Chief Financial
Officer), Richard W. Gilbert (Chief Operating Officer), Richard R. House, Jr.
(President) and Krishnakumar Srinivasan (President – Credit Cards) (each an
“Executive” and together the “Executives”). The Executives’
employment agreements were amended and restated to comply with the requirements
of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”). The disclosure in Item 5.02 below is hereby incorporated by
reference into this Item 1.01.
Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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(e) On
December 23, 2008, the Company entered into amended and restated employment
agreements with each Executive to comply with the requirements of Section 409A
of the Code. The amendments to the employment
agreements:
·
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provide
for definitive provisions regarding the timing and form of payments;
and
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·
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add,
as appropriate, the required delay for payments upon a “separation of
service.”
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The
summary of the amended and restated employment agreements set forth above is
qualified in its entirety by reference to the text of the amended and restated
employment agreements, copies of which are attached to this Form 8-K as Exhibits
10.1, 10.2, 10.3, 10.4 and 10.5, and are incorporated herein by
reference.
Item
9.01.
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Financial
Statements and Exhibits
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(d)
Exhibits
Exhibit
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10.1
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Employment
Agreement with David G. Hanna
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10.2
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Employment
Agreement with J. Paul Whitehead, III
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10.3
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Employment
Agreement with Richard W. Gilbert
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10.4
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Employment
Agreement with Richard R. House, Jr.
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10.5
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Employment
Agreement with Krishnakumar Srinivasan
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
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COMPUCREDIT
CORPORATION
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Dated:
December 29, 2008
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By:
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/s/ J. Paul
Whitehead, III
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Name:
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J. Paul
Whitehead, III
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Title:
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Chief
Financial Officer
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EXHIBIT
INDEX
Form
8-K
December
29, 2008
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Filed
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Exhibit
No.
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Description
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Herewith
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By
Reference
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10.1
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Amended
and Restated Employment Agreement, dated as of December 23, 2008, by and
between CompuCredit Corporation and David G. Hanna
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X
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10.2
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Amended
and Restated Employment Agreement, dated as of December 23, 2008, by and
between CompuCredit Corporation and J.Paul Whitehead, III
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X
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10.3
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Amended
and Restated Employment Agreement, dated as of December 23, 2008, by and
between CompuCredit Corporation and Richard W. Gilbert
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X
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10.4
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Amended
and Restated Employment Agreement, dated as of December 23, 2008, by and
between CompuCredit Corporation and Richard R. House, Jr.
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X
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10.5
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Amended
and Restated Employment Agreement, dated as of December 23, 2008, by and
between CompuCredit Corporation and Krishnakumar
Srinivasan
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X
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|
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Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, originally effective as of March 15,
2001, is amended and restated on December 23, 2008, by and between COMPUCREDIT
CORPORATION, a Georgia corporation (“CompuCredit”), and DAVID G. HANNA, 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”).
W
I T N E S S E T H:
WHEREAS,
the parties hereto desired to enter into a written agreement for the employment
of Employee by CompuCredit on the terms and conditions hereinafter stated which
supersedes 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; and
WHEREAS,
the Company and the Employee entered into the Previous Employment Agreement,
effective as of March 15, 2001; and
WHEREAS,
the Company and the Employee now desire to amend and restate the Previous
Employment Agreement to reflect the provisions of Section 409A of the Code and
the final regulations issued thereunder.
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 Executive Officer and as delegated to
him from time to time by the Board of Directors of CompuCredit 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 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 period of time
Employee is employed by CompuCredit shall be 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.”
(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 Term, CompuCredit shall pay Employee as compensation for the Services an
annual salary equal to $50,000. 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,
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. 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
payable as set forth therein, and Employee will not be entitled to any severance
or other benefits upon any termination of his employment hereunder.
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.
5. BENEFITS. During
the Term of this Agreement, 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. 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 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, 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. Any
such payments to be made during such one (1) year period shall be made in the
same manner as Employee’s annual salary as of the Termination Date, subject to
Section 19 below.
(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
(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:
(a) If
to
CompuCredit: CompuCredit
Corporation
245
Perimeter Center Parkway
Suite
600
Atlanta,
Georgia 30346
Attn: Richard
R. House, Jr.
(b) If
to
Employee: David
G. Hanna
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.
19. 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/ Richard R.
House, Jr.
Richard R. House, Jr.
President
/s/ David G.
Hanna
David G.
Hanna
Exhibit
10.2
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), originally
effective as of August 29, 2002 (the “Effective Date”), and amended and restated
as of October 16, 2005, is amended and restated again effective as of December
23, 2008, by and between
CompuCredit Corporation
, a
Georgia corporation (“CompuCredit”), and
J.Paul Whitehead III
, an
individual resident of the State of Georgia (“Employee”). This
Agreement amends, restates and supersedes the employment agreement between the
Company and the Employee effective as of the Effective Date and amended and
restated effective as of October 16, 2005 (the “Previous Employment
Agreement”).
WITNESSETH
:
WHEREAS,
in consideration of, among other things, CompuCredit’s reappointment of Employee
to the position of Chief Financial Officer, Employee agreed to devote his full
working time to the business efforts of CompuCredit; and
WHEREAS,
the parties amended and restated the employment agreement, effective as of
August 29, 2002, in its entirety into the Previous Employment Agreement to set
forth the terms and conditions of Employee’s continued employment with
CompuCredit, effective as of October 16, 2005; and
WHEREAS,
CompuCredit and the Employee 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 Chief
Financial Officer of CompuCredit, and, as such, Employee shall direct and manage
the financial affairs of CompuCredit 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”). 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 shall commence on the date hereof and shall continue automatically
month by month upon the 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) The
nature, extent and amount of coverage under CompuCredit’s Directors and
Officers, Errors and Omissions insurance policy decreases to a level that is
below what would be reasonable and customary (other than due to the actions of
Employee), provided however, that such coverage shall not be below a minimum
threshold of $25,000,000;
(ii) Employee’s
status or role within CompuCredit is demoted in any of the following
ways:
(A) Employee
no longer maintains the title of Chief Financial Officer of
CompuCredit;
(B) Employee
retains the title of Chief Financial Officer but is not held out by CompuCredit
either internally and/or externally as the principal or chief financial officer
of CompuCredit responsible for the financial matters of
CompuCredit;
(C) 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 chief financial officer
position;
(D) Employee
no longer reports directly to the Chief Executive Officer of
CompuCredit;
(E) a
material reduction by CompuCredit of Employee’s base annual salary, incentive
compensation or a material reduction of Employee’s benefits (taken as a whole)
as in effect immediately prior to such reduction; or
(F) A
material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Employee is required to report.
(iii) CompuCredit’s
requirement that Employee be based anywhere other than Metropolitan Atlanta,
Georgia. CompuCredit shall be deemed to have required Employee to be
based somewhere other than Metropolitan Atlanta, Georgia if the Employee is
required to spend more than two days per week on a regular basis at a business
location not within the Atlanta, Georgia metropolitan area.
(iv) the
failure of a successor of CompuCredit to assume in writing this Agreement
contemporaneously to becoming a successor of CompuCredit; or
(v) CompuCredit
has 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.
(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 as set forth on Exhibit A hereto and incorporated herein by
reference. 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. Employee’s salary per annum may from time to time be increased
but not decreased. CompuCredit shall review Employee’s compensation
hereunder at least on an annual basis.
(b) Notwithstanding
anything to the contrary herein, if this Agreement 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 grants and options which have not vested
shall not become vested;
provided
,
however
, subject to
Section 21 below, that Employee shall be entitled to receive (i) any salary
already earned under Section 3(a) as set forth above, and (ii) a portion of any
previously agreed upon bonus (prorated based upon full months worked by
Employee) for any fiscal year in which Employee worked for CompuCredit for at
least six (6) months within thirty (30) days of the Termination Date;
provided
,
further
, that in the
case of a termination of employment by Employee without Good Reason (except in
the case of death or Complete Disability of Employee), Employee shall have the
earlier of (i) two (2) months after the Termination Date or (ii) the original
expiration date of the options (disregarding any earlier expiration based on
termination of Employee’s employment) to exercise any then vested stock options
held by Employee.
(d) If
this Agreement 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
grants or options which have not vested as of the Termination Date shall not
become vested;
provided
,
however
, that
Employee shall be deemed to be One Hundred Percent (100%) vested in all
restricted stock,
provided
,
further
, subject to
Section 21 below, that Employee shall be entitled to receive (i) his salary
under Section 3(a) above for a period of three (3) months 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, (ii) a portion of any
previously agreed upon bonus (pro rated based upon full months worked by
Employee) for any fiscal year in which Employee worked for CompuCredit for at
least six (6) months within thirty (30) days of the Termination Date; and (iii)
the ability to exercise any then vested options held by Employee until the
earlier of (i) six (6) months after the Termination Date or (ii) the original
expiration date of the options (disregarding any earlier expiration based on
termination of Employee’s employment).
(e) If
this Agreement 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 grants or
options which have not vested shall not become vested;
provided
,
however
, that
Employee shall be deemed to be One Hundred Percent (100%) vested in all
restricted stock,
provided
,
further
, subject to
Section 21 below, that Employee (or his estate, as applicable) shall be entitled
to receive (i) any salary already earned under Section 3(a) above as set forth
above, (ii) a portion of any previously agreed upon bonus (pro rated based upon
full months worked by Employee) for any fiscal year in which Employee worked for
CompuCredit for at least six (6) months within thirty (30) days of the
Termination Date; and (iii) the ability to exercise any then vested options held
by Employee until the earlier of (i) six (6) months after the Termination Date
or (ii) the original expiration date (disregarding any earlier expiration based
on termination of Employee’s employment).
(f) Notwithstanding
anything to the contrary herein, if CompuCredit terminates this Agreement or
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 twelve (12) 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, plus (ii) an amount equal to the largest cash
bonus received by Employee during the Term of this Agreement and prior to the
Termination Date 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, stock
options and benefit plans maintained by CompuCredit, and shall have until the
earlier of (i) one year after the Termination Date or (ii) the original
expiration date (disregarding any earlier expiration based on termination of
Employee’s employment) to exercise any stock option or other similar
equity-based compensation arrangements. 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, the 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 termination of
employment 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.
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.
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. Additionally, CompuCredit shall reimburse Employee for
reasonable out-of-pocket expenses incurred by Employee associated with
Employee’s efforts to maintain those continuing professional education
requirements of his license in the State of Georgia to practice as a Certified
Public Accountant, as well as those professional association dues, licensure
fees, and business license payments incurred by Employee in connection with his
status as a Certified Public Accountant. 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 confidential information
except in connection with the performance of the Services. If
disclosure of any Confidential 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 their respective 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 major U.S.
exchange or traded on a NASDAQ over-the-counter market) 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, respectively.
(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 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
(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)
providing credit card or home equity loan servicing services or (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 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 for Cause or 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 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.
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 which involve its common stock.
11.
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 unreasonable 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
investigation, 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
payments to be made hereunder shall be paid as soon as administratively
practical 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.
12.
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.
13.
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.
14.
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.
15.
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
|
|
245
Perimeter Center Parkway, Suite 600
|
|
(b)
|
If
to Employee:
|
J.Paul
Whitehead III
|
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.
16.
Governing
Law
. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
17.
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.
18.
Parties
Benefited
. This Agreement shall inure to the benefit of, and
be binding upon Employee, CompuCredit, and its 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.
19.
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.
20.
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.
21.
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.
(e) 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.
(f) 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.
(g) 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.
(h) 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
|
David
G. Hanna, Chief Executive Officer
|
|
By:
/s/ J. Paul Whitehead,
III
|
Exhibit
A
Salary
per
annum $800,000
Exhibit
10.3
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), originally
effective as of March 15, 2001 (the “Effective Date”), is amended and restated
on December 23, 2008, by and between COMPUCREDIT CORPORATION, a Georgia
corporation ("CompuCredit"), and RICHARD W. GILBERT, an individual resident of
the State of Georgia ("Employee"). This Agreement amends, restates
and supersedes the employment agreement between CompuCredit and the Employee
that became effective as of the Effective Date (the “Previous Employment
Agreement”).
W I T N E
S S E T H
:
WHEREAS,
the parties desired to enter into a written agreement for the employment of
Employee by CompuCredit on the terms and conditions hereinafter stated which
superseded 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; and
WHEREAS,
CompuCredit and the Employee entered into the Previous Employment Agreement,
effective as of March 15, 2001; and
WHEREAS,
CompuCredit and the Employee 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 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 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 period of time
Employee is employed by CompuCredit shall be 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."
(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 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, 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. 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
payable at the normal times set forth above) and Employee will not be entitled
to any severance or other benefits upon any termination of his employment
hereunder.
4. VACATION. During
the Term, 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. During
the Term, 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. 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 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, 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. Any
such payments to be made during such one (1) year period shall be made in the
same manner as Employee’s annual salary as of the Termination Date, subject to
Section 19 below.
(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
(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:
|
(a)
|
If
to CompuCredit:
|
CompuCredit
Corporation
|
|
245
Perimeter Center Parkway
|
|
(b)
|
If
to Employee:
|
Richard
W. Gilbert
|
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.
19. 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 (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.
(g) 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.
(h) 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
|
Chairman
and Chief Executive Officer
|
|
By:
/s/
Richard W. Gilbert
|
|
Exhibit 10.4
|
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
|
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, originally effective as of January 1,
1999 and amended by the First Amendment to Employment Agreement dated as of
December 31, 1999, (collectively the "Previous Employment Agreement"), is
amended and restated effective as of December 23, 2008, by and between
COMPUCREDIT CORPORATION, a Georgia corporation ("CompuCredit"), and RICHARD R.
HOUSE, JR., an individual resident of the State of Georgia
("Employee"). This Agreement amends, restates and supersedes the
Previous Employment Agreement.
W
I T N E S S E T H:
WHEREAS,
the parties hereto entered into that certain employment agreement, effective as
of January 1, 1999, providing for the employment of Employee by CompuCredit on
the terms and conditions therein; and
WHEREAS,
the parties amended that certain employment agreement by the First Amendment to
Employment Agreement, effective as of December 31, 1999; and
WHEREAS,
in consideration of, among other things, CompuCredit's promotion of Employee to
President, increasing Employee's compensation and granting Employee additional
stock options, Employee agreed to devote 100% of his business efforts to
CompuCredit; and
WHEREAS,
the Company and the Employee 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 continued 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 to amend
and restate the Original Agreement as follows and hereby intend that the
parties' respective rights, duties and obligations with respect to Employee's
employment with CompuCredit shall hereinafter be set forth below:
1.0 RELATIONSHIP
ESTABLISHED. Upon the terms and subject to the conditions of this
Agreement, CompuCredit hereby employs Employee to serve as the President of
CompuCredit, and, as such, Employee shall perform the executive level services
(the "Services") for CompuCredit as delegated to him from time to time by
CompuCredit's Chief Executive Officer (or his designee). 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 CEO of CompuCredit shall
approve in advance 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. During the
"Term" (as defined below) Employee shall not, directly or indirectly, make any
advance, loan, extension of credit or capital contribution to, or purchase any
stocks, bonds or other securities of, or make any investment in, any individual,
partnership, corporation, limited liability company, trust, trustee, joint stock
company, unincorporated organization, joint venture, association, governmental
authority or other entity (each, an "Entity") other than CompuCredit without the
prior written consent of the CEO of CompuCredit; PROVIDED, HOWEVER, that
Employee shall be permitted to have a direct or indirect equity ownership of no
greater than 2% of the equity of an Entity listed on a major U.S. exchange or
traded on a NASDAQ over-the-counter market.
2.0 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 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 period of time Employee is
employed by CompuCredit shall be 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 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 Board of Directors of CompuCredit 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 with any of the terms of Section 1
or Section 9 hereof;
(ii) Employee
has breached or defaulted in the performance of any other 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)
The date
on which Employee's employment expires or terminates for any reason is referred
to herein as the "Termination Date."
3.0 COMPENSATION.
(a)
During
the Term, CompuCredit shall pay Employee as compensation for the Services an
annual salary as set forth on EXHIBIT A hereto and incorporated herein by
reference. 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, 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. Employee's salary per annum may from time to time be adjusted as
agreed in writing by both CompuCredit and Employee.
(b)
Prior to
the commencement of each fiscal year or within three (3) months following the
commencement of each such fiscal year, Employee and CompuCredit shall in good
faith mutually establish bonus amounts and targets for Employee for such fiscal
year. Subject to Section 3(d) below, any bonus earned by Employee shall be
prorated for any partial fiscal year worked by Employee. Any bonus
payments due hereunder shall be payable to the Employee no later than 2 ½ months
after the end of the calendar year in which Employee becomes vested in such
bonus for purposes of Section 409A of the Internal Revenue Code.
(c)
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; PROVIDED, HOWEVER, subject to Section 20.0 below, that Employee
shall be entitled to receive (i) any salary already earned under Section 3(a)
above as set forth therein, and (ii) a portion of any previously agreed upon
bonus (prorated based upon full months worked by Employee) for any fiscal year
in which Employee worked for CompuCredit for at least 6 months within thirty
(30) days of the Termination Date. Employee will not be entitled to
any severance or other benefits upon any termination of his employment
hereunder.
4.0 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.
5.0 BENEFITS.
During the Term of this Agreement, 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.
6.0 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.
7.0 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
confidential information except as authorized herein. Employee may use
confidential information to perform the Services but in doing so will only allow
dissemination of confidential information to any Entity on a strict need-to-know
basis (provided such persons are first informed of the confidential nature of
such information and directed to use or disclose it only as permitted herein).
If disclosure of any Confidential 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 House during any employment prior to that with
CompuCredit, with the exception of information gained while working at Equifax
on behalf of 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 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, 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 and shall destroy
all other Proprietary Information in his possession.
8.0 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. ss. 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.
9.0 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 Employee is terminated without
Cause, he will only be bound by the covenant against competition if CompuCredit
elects to pay Employee his then current salary for the one (1) year period of
time from and after the Termination Date. Any such payments to be
made during such one (1) year period shall be made in the same manner as
Employee’s annual salary as of the Termination Date, subject to Section 20.0
below.
(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" (as hereinafter defined), 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 Entity who provides services substantially similar to Company
Services.
(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 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 (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) providing servicing services, (C) engaging in the business of making credit
card and home equity loans to consumers; and (D) providing and marketing those
products and services offered by CompuCredit at the date hereof.
(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 Employee's employment hereunder for any
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 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 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.
10.0RESTRICTIONS
UPON SALE OF SHARES.
(a)
In
further consideration of the terms of employment granted herein by CompuCredit
to Employee, Employee hereby agrees that (i) throughout the entire Term he will
not, without CompuCredit's prior written consent or except as otherwise provided
in subsection (b) of this Section 10, sell or dispose of more than 150,000
shares of CompuCredit's common stock owned by him as of the date hereof, and
(ii) in selling any CompuCredit shares of common stock during the Term, as
permitted by the preceding clause (i), 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 which
involve its common stock.
(b)
Notwithstanding
the provisions of subsection (a) above, Employee may, throughout the entire
Term, sell or dispose up to that number of shares of CompuCredit common stock
(inclusive of the 150,000 shares permitted under subsection (a)) proportionate
(in terms of equivalent percentage of CompuCredit shares owned) to the number of
shares of CompuCredit common stock sold or disposed of during the Term by Frank
J. Hanna III or David G. Hanna, whichever is greater.
(c)
The
restrictions contained in this Section 10 shall lapse upon a Change of Control.
For this purpose, a "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 the CompuCredit or more than fifty percent (50%) of the outstanding
and issued common stock of CompuCredit.
11.0 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.
12.0 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.
13.0 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.
14.0 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
|
|
(b)
|
If
to Employee:
|
Richard
R. House, Jr.
|
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.
15.0 GOVERNING
LAW. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia.
16.0 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 Initial Agreement and the
First Amendment, 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 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.
17.0 PARTIES
BENEFITED. This Agreement shall inure to the benefit of, and be binding upon
Employee, CompuCredit, and its 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.
18.0 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.
19.0 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.
20.0 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/ David G.
Hanna
David G. Hanna, Chief Executive
Officer
/s/ Richard R. House,
Jr.
Richard R. House, Jr.
EXHIBIT
A
Salary
per
annum $1,000,000
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
Krishnakumar Srinivasan,
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,
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) Frank J. Hanna, III, David G.
Hanna, their spouses, their descendants and the spouses of their descendants,
(ii) trusts and other entities established generally for the benefit of Frank J.
Hanna, III, David G. Hanna, 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
245
Perimeter Center Parkway, Suite 600
Atlanta,
GA 30346
Attn: David
G. Hanna
(b)
If to
Employee: Krishnakumar
Srinivasan
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/ David G.
Hanna
David G.
Hanna, Chief Executive Officer
/s/ Krishnakumar
Srinivasan
Krishnakumar
Srinivasan