EXHIBIT 10.6.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
28th day of April, 1998 by and among Check into Cash, Inc., a Delaware
corporation (hereinafter, the "Company"), W. Xxxxx Xxxxx, Jr. (hereinafter
"Xxxxx"), and J. Xxxxxx Xxxxxx, Xx. (hereinafter, "Executive").
BACKGROUND
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The Company desires to engage Executive in Executive capacities set forth
herein, in accordance with the terms and conditions of this Agreement.
Executive is willing to serve as such in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. This Agreement is effective as of May 1, 1998 (the
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"Effective Date").
2. Employment. Executive is hereby employed on the Effective Date as the
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Executive Vice President and General Counsel of the Company. Executive's
responsibilities under this Agreement shall be in accordance with the policies
and objectives established by the Chief Executive Officer and the Board of
Directors of the Company and shall be consistent with the responsibilities of
similarly situated executives of comparable companies in similar lines of
business. In his capacity as Executive Vice President and General Counsel of
the Company, Executive will report directly to the Chief Executive Officer of
the Company.
3. Employment Period. Unless earlier terminated herein in accordance with
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Section 7 hereof, Executive's employment shall be for a three-year term (the
"Employment Period"), beginning on the Effective Date. The Employment Period
shall, without further action by Executive or the Company, be extended for an
additional one-year period on each anniversary of the Effective Date; provided,
however, that either party may, by notice to the other given at any time prior
to such next anniversary of the Effective Date, cause the Employment Period to
cease to extend automatically. Upon such notice, the Employment Period shall
terminate upon the expiration of the then-current term, including any prior
extensions.
4. Extent of Service. During the Employment Period, and excluding any
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periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Executive to (i) devote
reasonable periods of time to charitable and community activities, and/or (ii)
manage personal business interests and investments (including winding up of the
affairs of Xxxxxx & Associates, P.C.), so long as such activities do not
interfere with the performance of Executive's responsibilities under this
Agreement. Executive shall re-establish his principal residence in the
Chattanooga/Cleveland, Tennessee area as soon as practicable and shall commence
service at the Company's headquarters on or before July 6, 1998 (the date on
which such service actually commences, the "Relocation Date").
5. Compensation and Benefits.
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(a) Base Salary. During the Employment Period, the Company will pay to
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Executive a base salary in the amount of $325,000 ("Base Salary"), less normal
withholdings, payable in equal monthly or more frequent installments as are
customary under the Company's payroll practices from time to time. The Board of
Directors of the Company shall review Executive's Base Salary annually and in
its sole discretion may increase Executive's Base Salary from year to year. The
annual review of Executive's salary by the Board will consider, among other
things, Executive's own performance and the Company's performance.
(b) Bonus. Bonuses will be made on a discretionary basis in accordance
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with the Company's incentive plans referred to in subsection (c) below.
(c) Incentive, Savings and Retirement Plans. During the Employment
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Period, Executive shall be entitled to participate in all incentive (including
cash bonus and stock-based), savings and retirement plans, practices, policies
and programs applicable generally to similarly situated officers of the Company
and its affiliated companies, and on the same relative basis as such other
similarly situated officers.
(d) Welfare Benefit Plans. During the Employment Period, Executive and
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Executive's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated officers of the Company and its affiliated
companies.
(e) Expenses. During the Employment Period, Executive shall be entitled
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to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliated companies to the extent applicable generally to other
similarly situated officers of the Company and its affiliated companies.
(f) Fringe Benefits. During the Employment Period, Executive shall be
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entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated officers of the Company and its affiliated companies.
(g) Automobile. Without limiting the foregoing, during the Employment
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Period, commencing on the Relocation Date, the Company shall provide to
Executive a 1996 or later Mercedes model 400 or equivalent automobile. If such
automobile is leased by the
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Company, Executive shall have the option to purchase such automobile upon
expiration of the lease term.
(h) Club Dues. Without limiting the foregoing, during the Employment
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Period, the Company shall pay Executive's initiation and monthly membership dues
at the Chattanooga Golf and Country Club or the Cleveland Golf and Country Club.
(i) Insurance Premiums. Without limiting the foregoing, during the
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Employment Term, the Company shall pay on Executive's behalf premiums of
$4,042.50 per quarter on Executive's Manulife Financial Variable Universal Life
Insurance policy.
(j) Bar Expenses. Without limiting the foregoing, during the Employment
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Term, the Company shall pay all costs associated with maintaining Executive's
state Bar association memberships, including required continuing legal education
requirements.
(k) Moving Expenses. Without limiting the foregoing, the Company shall
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reimburse Executive for all reasonable expenses incurred in packing and moving
Executive's personal and professional property from Alexandria, Virginia to the
Chattanooga/Cleveland, Tennessee area.
(l) Other Expenses. The Company shall pay directly to Xxxxxx &
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Associates, P.C. for all reasonable expenses incurred in connection with the
winding up of the affairs of Xxxxxx & Associates, P.C. between May 1, 1998 and
June 30, 1998, including salaries of associates (other than ________________)
and secretary, rent and other expenses normally expended during the preceding
months of operation of Xxxxxx & Associates, P.C., in consideration of services
to be rendered to the Company by Xxxxxx & Associates, P.C. during that period.
6. Stock Option Award.
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(a) As soon as practicable after the date hereof the Company shall grant
to Executive under the Company's 1997 Long Term Incentive Plan (the "Plan"), or
any successor plan, an option (the "Option") to purchase shares (the "Option
Shares") of the $0.01 par value common stock of the Company ("Common Stock").
The number of Option Shares subject to the Option and the exercise price per
Option Share shall be determined in accordance with the parties' mutual
understanding as reflected in correspondence contemporaneous with the execution
of this Agreement. The Option shall be exercisable as to one-fourth of the
Option Shares beginning on the Relocation Date and as to one-third of the
remaining Option Shares beginning on each of the first three anniversaries of
the date of grant; provided, that the Option shall become fully exercisable as
to all remaining Option Shares upon death or Disability (as defined below) of
Executive or upon a Change of Control (as such term is defined in the Plan) to
the extent provided in the Plan.
(b) Notwithstanding the foregoing, in the event that, prior to
consummation of an initial public offering of the Company's Common Stock, all or
substantially all of the equity
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interest in the Company shall be acquired by any person (whether by merger,
share exchange or otherwise), Executive shall be entitled to receive, upon
consummation of such acquisition, consideration having an aggregate value equal
to the sum of (i) 3% of the aggregate consideration paid in such acquisition
(including such consideration as may be paid to Executive pursuant to this
paragraph (b)), minus (ii) the fair market value of any consideration received
by Executive in consideration of surrender of the Option or received in respect
of Option Shares. The consideration to be paid to Executive pursuant to this
paragraph (b) shall be in the same form as that received by all other
shareholders of the Company (provided that if shareholders receive a mix of
forms of consideration, Executive shall be entitled to receive the same mix of
forms of consideration and if shareholders are entitled to elect which form of
or mix of forms of consideration to receive, Executive shall be entitled to make
the same election). Payment of the consideration to which Executive is entitled
pursuant to this paragraph (b) shall be paid in the same manner and at
substantially the same time as the consideration paid to shareholders of the
Company.
7. Termination of Employment.
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(a) Death, Retirement or Disability. Executive's employment shall
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terminate automatically upon Executive's death or Retirement during the
Employment Period. If the Company determines in good faith that the Disability
of Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to Executive written
notice in accordance with Section 14(f) of this Agreement of its intention to
terminate Executive's employment. In such event, Executive's employment with
the Company shall terminate effective on the 30th day after receipt of such
written notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this Agreement,
"Disability" shall mean a mental or physical disability as determined by the
Board of Directors of the Company in accordance with standards and procedures
similar to those under the Company's employee long-term disability plan, if any.
At any time that the Company does not maintain such a long-term disability plan,
Disability shall mean the inability of Executive, as determined by the Board, to
substantially perform the essential functions of his regular duties and
responsibilities due to a medically determinable physical or mental illness
which has lasted (or can reasonably be expected to last) for a period of six
consecutive months. For purposes of this Agreement, "Retirement" shall mean
voluntary termination of employment after age 65.
(b) Termination for Cause. The Company may terminate Executive's
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employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to Executive by the Board of
Directors of the Company which specifically identifies the manner in which such
Board believes that Executive has not substantially performed Executive's
duties, or
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(ii) the willful engaging by Executive in illegal conduct or gross
misconduct the consequence of which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. The cessation of employment of
Executive shall not be deemed to be for Cause unless and until there shall have
been delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board of Directors of the Company (excluding Executive, if then a director) at a
meeting of such Board called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity, together with
counsel, to be heard before such Board), finding that, in the good faith opinion
of such Board, Executive is guilty of the conduct described in subparagraph (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be terminated by Executive
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for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, the assignment to
Executive of any duties materially inconsistent with Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 2 of this Agreement, or
any other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) a reduction by the Company in Executive's Base Salary and
benefits as in effect on the Effective Date or as increased from time to time,
or the failure by the Company to increase Executive's Base Salary each year
during the Employment Period by an amount which at least equals, on a percentage
basis, the mean average percentage increase in base salary for all officers of
the Company, unless such failure to increase is based on nonarbitrary criteria
applied to Executive and other similarly-situated employees;
(iii) any purported termination by the Company of Executive's
employment otherwise than for Cause, death, Disability or Retirement;
(iv) any failure by the Company to comply with and satisfy Section
13(b) of this Agreement; or
(v) a termination by Executive for any reason during the 30-day
period immediately following the first anniversary of a Change in Control (as
defined in the Plan, or any successor plan).
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(d) Notice of Termination. Any termination by the Company for Cause, or
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by Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 14(f) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not less than 30 days after
the giving of such notice). The failure by Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of Executive or the
Company, respectively, hereunder or preclude Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if Executive's
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employment is terminated by the Company for Cause, or by Executive for Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein, as the case may be, (ii) if Executive's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies Executive of such
termination, (iii) if Executive's employment is terminated by reason of death,
Disability or Retirement, the Date of Termination shall be the date of death or
Retirement of Executive or the Disability Effective Date, as the case may be,
and (iv) if Executive's employment is terminated by Executive other than for
Good Reason, death, Disability or Retirement, the Date of Termination shall be
the date of specified in the notice of termination, which shall be not less than
30 days after the giving of such notice.
8. Obligations of the Company upon Termination.
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(a) Termination by Executive for Good Reason; Termination by the Company
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Other Than for Cause, Death, Disability or Retirement. If, during the
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Employment Period, the Company shall terminate Executive's employment other than
for Cause, death, Disability or Retirement, or Executive shall terminate
employment for Good Reason, then in consideration of Executive's services
rendered prior to such termination and as reasonable compensation for his
compliance with the Restrictive Covenants in Section 12 hereof:
(i) the Company shall pay to Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, and (2) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore
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paid (the sum of the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to two times the Executive's Base Salary in
effect as of the Date of Termination (provided, if Executive
terminates employment pursuant to Section 7(c)(v), the amount shall
equal the greater of (i) Executive's Base Salary in effect as of the
Date of Termination or (ii) the Base Salary to which Executive would
have been entitled during the then-remaining term of this Agreement
had such employment not been terminated, provided that in no event
shall the amount paid under this provision exceed two times
Executive's Base Salary in effect as of the Date of Termination) (the
"Severance Payment"); and
(ii) for one year after Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to
Executive and/or Executive's family at least equal to those which would
have been provided to them in accordance with the welfare plans, programs,
practices and policies described in Section 5(d) of this Agreement if
Executive's employment had not been terminated or, if more favorable to
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if Executive becomes re-employed with
another employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility
("Welfare Benefits"); and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
(iv) the entire unvested portion of the Option shall immediately
vest.
(b) Death. If Executive's employment is terminated by reason of
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Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations, the timely payment or
provision of Other Benefits, the immediate vesting of the entire unvested
portion of the Option, and the repurchase of Option Shares as described in the
following sentence. If the Common Stock is not freely tradable by Executive on
the date of his death, by reason of securities restrictions or otherwise, the
Company shall, at the request of Executive's surviving spouse or executor or
administrator, repurchase some or all of such Option Shares then held by
Executive (or his estate) or acquired by Executive's estate upon exercise of the
Option at the then-current Fair Market Value of such Common Stock (as defined in
the Plan, except that if the Common Stock is not publicly traded, the Fair
Market Value shall be determined by appraisal
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conducted by a recognized firm of independent appraisers), provided further,
that the Executive's surviving spouse or administrator shall not have the right
to require the Company to purchase any shares under this Section 8(b) if such
purchase would cause the Company to be in violation of any covenant in any loan
agreement to which the Company is a party that is in effect at the time of the
required purchase, unless the Company has failed to make reasonable efforts to
secure waiver of such covenants from the relevant lenders. Accrued Obligations
shall be paid to Executive's estate or beneficiary, as applicable, in a lump sum
in cash within 30 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 8(b)
shall include, without limitation, and Executive's estate and/or beneficiaries
shall be entitled to receive, benefits under such plans, programs, practices and
policies relating to death benefits, if any, as applicable generally to
similarly situated officers of the Company and its affiliated companies and
their beneficiaries, and on the same basis as such similarly situated officers
and their beneficiaries.
(c) Disability or Retirement. If Executive's employment is terminated by
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reason of Executive's Disability or Retirement during the Employment Period,
this Agreement shall terminate without further obligations to Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits, the immediate vesting of the entire unvested portion of the
Option, and the repurchase of Option Shares as described in the following
sentence. If the Common Stock is not freely tradable by Executive on the date
of his Disability or Retirement, by reason of securities restrictions or
otherwise, the Company shall, at the request of Executive or his legal
representative, repurchase some or all of such Option Shares then held by
Executive (or his legal representative) or acquired by Executive (or his legal
representative) upon exercise of the Option at the then-current Fair Market
Value of such Common Stock (as defined in the Plan, except that if the Common
Stock is not publicly traded, the Fair Market Value shall be determined by
appraisal conducted by a recognized firm of independent appraisers), provided
further, that the Executive or his legal representative shall not have the right
to require the Company to purchase any shares under this Section 8(c) if such
purchase would cause the Company to be in violation of any covenant in any loan
agreement to which the Company is a party that is in effect at the time of the
required purchase, unless the Company has failed to make reasonable efforts to
secure waiver of such covenants from the relevant lenders. Accrued Obligations
shall be paid to Executive in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(c) shall include, without limitation, and
Executive shall be entitled after the Date of Termination to receive, disability
or retirement and other benefits under such plans, programs, practices and
policies relating to disability or retirement, if any, as applicable generally
to similarly situated officers of the Company and its affiliated companies and
their families, and on the same basis as such similarly situated officers and
their families.
(d) Cause or Voluntary Termination without Good Reason. If Executive's
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employment shall be terminated for Cause during the Employment Period, or if
Executive voluntarily terminates employment during the Employment Period without
Good Reason, this Agreement shall terminate without further obligations to
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits.
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9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
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limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which Executive may qualify, nor, subject to Section 14(d), shall
anything herein limit or otherwise affect such rights as Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
10. Full Settlement; Release; Cost of Enforcement. The Company's obligation
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to make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others; provided, however, that the Company's obligation to
pay the Severance Payment in accordance with Section 8(a)(i)(B) hereof shall be
conditioned upon Executive's execution of a Release in favor of the Company in
substantially the form of Exhibit A attached hereto at the time such Severance
Payment becomes due and payable. The Company agrees to pay as incurred, to the
full extent permitted by law, all legal fees and expenses which Executive may
reasonably incur as a result of any contest (to the extent that Executive is
successful, in whole or in part, in such contest) by the Company, Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
11. Representations and Warranties. Executive hereby represents and warrants
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to the Company that Executive is not a party to, or otherwise subject to, any
covenant not to compete with any person or entity, and Executive's execution of
this Agreement and performance of his obligations hereunder will not violate the
terms or conditions of any contract or obligation, written or oral, between
Executive and any other person or entity.
12. Restrictions on Conduct of Executive.
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(a) General. Executive and the Company understand and agree that the
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purpose of the provisions of this Section 12 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of his labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 12 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law upon the
restrictions set forth herein, Executive shall be subject to the restrictions
set forth in this Section 12.
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(b) Definitions. The following capitalized terms used in this Section 12
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shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Competitive Services" means any services provided by Company at the
Determination Date, including, but not limited to, the business of cashing
checks, deferring deposit of checks for specified periods of time, and extending
short-term, unsecured credit, but shall not include the practice of law or the
provision of legal services. It is particularly understood and agreed between
the Company and Executive that no post-employment restriction shall affect
Executive's ability to represent any person or company even, and especially, if
such person or company is engaged in a "Competitive Service" if Executive is
exclusively engaged in the private practice of law.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or its affiliated entities or relating to
its or their business, including without limitation, any confidential "know-
how", customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies price lists, market studies,
business plans, operational methods, marketing plans or strategies, product
development techniques or plans, computer software programs (including object
code and source code), data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques, processes,
financial information and data, business acquisition plans, new personnel
acquisition plans and any other information that would constitute a Trade Secret
(as defined herein).
"Determination Date" means the date of termination of Executive's
employment with the Company for any reason whatsoever or any earlier date
(during the Employment Period) of an alleged breach of the Restrictive Covenants
by Executive.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant (but shall not include
service as non-employee legal counsel).
"Protected Employees" means employees of the Company who were employed
by the Company at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the Employment Period and a period extending
two (2) years from the later of (i) the Date of Termination or (ii) the last
date on which the Company makes a payment to Executive pursuant to Section 8 of
this Agreement; provided, however that such period shall be extended by any
length of time during which Executive is in breach of the Restricted Covenants.
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"Restrictive Covenants" means the restrictive covenants contained in
Section 12(c) hereof.
"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret(s)" under the common law or statutory law of the
State of Tennessee.
(c) Restrictive Covenants.
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(i) Restriction on Disclosure and Use of Confidential Information.
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Executive understands and agrees that the Confidential Information
constitutes a valuable asset of the Company and its affiliated entities,
and may not be converted to Executive's own use. Accordingly, Executive
hereby agrees that Executive shall not, directly or indirectly, at any time
during the Restricted Period reveal, divulge, or disclose to any Person not
expressly authorized by the Company any Confidential Information, and
Executive shall not, directly or indirectly, at any time during the
Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Company;
provided, however, in the event the Confidential Information constitutes a
Trade Secret, the Restricted Period referred to above shall be five (5)
years.
(ii) Nonsolicitation of Protected Employees. Executive understands
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and agrees that the relationship between the Company and each of its
Protected Employees constitutes a valuable asset of the Company and may not
be converted to Executive's own use. Accordingly, Executive hereby agrees
that during the Restricted Period Executive shall not directly or
indirectly on Executive's own behalf or as a Principal or Representative of
any Person or otherwise solicit or induce any Protected Employee to
terminate his or her employment relationship with the Company or to enter
into any relationship of employment, agency or independent contractorship
with any other Person.
(iii) Noncompetition with the Company. During the Restricted Period,
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Executive, unless acting in accordance with the Company's prior written
consent, will not directly provide any Competitive Services to, and will
not, directly or indirectly, (i) own, manage, operate, join, control,
finance or participate in the ownership, management, operation, control or
financing of, or (ii) be connected as a Principal or Representative with,
or (iii) permit Executive's name to be used by or in connection with, any
Person engaged in providing Competitive Services to any Person conducting
business activities within a ten (10) mile radius of any store location
from which the Company is or was engaged in the provision of the
Competitive Services on the Determination Date, including any store
location for which a lease had been entered into by the Company on or
before the Determination Date but was not then operational; provided,
however, that the provisions of this Agreement shall not be deemed to
prohibit the ownership by Executive of any securities of the Company or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended.
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(d) Exceptions from Disclosure Restrictions. Anything herein to the
---------------------------------------
contrary notwithstanding, Executive shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Executive or
his agent; (b) becomes available to Executive in a manner that is not in
contravention of applicable law from a source (other than the Company or its
affiliated entities or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its affiliated entities or by a confidentiality or other similar
agreement; (c) was known to Executive on a non-confidential basis and not in
contravention of applicable law or a confidentiality or other similar agreement
before its disclosure to Executive by the Company or its affiliated entities or
one of its or their officers, employees, agents or representatives; or (d) is
required to be disclosed by law, court order or other legal process; provided,
however, that in the event disclosure is required by law, Executive shall
provide the Company with prompt notice of such requirement so that the Company
may seek an appropriate protective order prior to any such required disclosure
by Executive.
(e) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Executive breaches,
_______________________________
or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the following rights and
remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the
Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any
breach or threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money damages would not provide
an adequate remedy to the Company; and
B. the right and remedy to require Executive to account for and
pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result
of any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Executive acknowledges and agrees
_________________________
that the Restrictive Covenants are reasonable and valid in time and scope
and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, are invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
_______________
the Restrictive Covenants, the prevailing party in such action shall be
entitled to be paid any and all costs and expenses incurred by him or it in
enforcing or establishing his or its rights
-12-
thereunder, including, without limitation, reasonable attorneys' fees,
whether suit be brought or not, and whether or not incurred in trial,
bankruptcy or appellate proceedings.
13. Assignment and Successors.
-------------------------
(a) Executive. This Agreement is personal to Executive and without the
_________
prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
___________
binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(c) Xxxxx. This Agreement is personal to Xxxxx and without the prior
_____
written consent of Executive shall not be assignable by Xxxxx otherwise than by
will or the laws of descent and distribution.
14. Personal Guaranty. Xxxxx is entering into this Agreement for the sole
-----------------
purpose of guaranteeing the obligations of the Company hereunder. Xxxxx hereby
irrevocably and unconditionally guarantees (the "Guaranty") the due and punctual
payment and performance when due of the Company's obligations under this
Agreement (the "Guaranteed Obligations"). This Guaranty is a guaranty of
payment, and not of collection, and an obligation of Xxxxx for his own account.
Accordingly, Executive shall not be obligated or required before enforcing this
Guaranty against Xxxxx: (a) to pursue any right or remedy Executive may have
against the Company or commence any suit or other proceeding against the Company
in any court or other tribunal; (b) to make any claim in a liquidation or
bankruptcy of the Company; or (c) to make demand of the Company. Xxxxx
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of this Agreement, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of Executive with respect thereto. The liability of Xxxxx under this
Guaranty shall be absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, provided that this Guaranty shall expire
and shall be of no further force or effect from and after consummation of an
initial public offering of the Company's Common Stock. Xxxxx, to the fullest
extent permitted by law, hereby waives notice of acceptance hereof or any
presentment, demand, protest or notice of any kind, and any other act or thing,
or omission or delay to do any other act or thing, which in any manner or to any
extent might vary the risk of Xxxxx or which otherwise might operate to
discharge Xxxxx from its obligations hereunder. Xxxxx
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shall be subrogated to the rights of Executive hereunder in the event and to the
extent that Xxxxx makes any payment to Executive pursuant to this Guaranty.
15. Miscellaneous.
-------------
(a) Waiver. 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 in this Agreement 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 the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of
------------
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement contains
----------------
the entire agreement between the Company and Executive with respect to the
subject matter hereof, and it supersedes and invalidates any previous agreements
or contracts between them which relate to the subject matter hereof. No
representations, inducements, promises or agreements, oral or otherwise, which
are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, and
-------------
without regard to conflict of laws principles, the laws of the State of
Tennessee shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company Check into Cash, Inc.
and Xxxxx: Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Attention: W. Xxxxx Xxxxx, Jr.,
Chairman and Chief Executive Officer
-14-
To Executive: J. Xxxxxx Xxxxxx, Xx.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(signatures on following page)
-15-
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
CHECK INTO CASH, INC.
By: /s/ W. Xxxxx Xxxxx, Jr.
-----------------------------
W. Xxxxx Xxxxx, Jr.
Chairman of the Board
and Chief Executive Officer
XXXXX:
/s/ W. Xxxxx Xxxxx, Jr.
-----------------------------------
W. Xxxxx Xxxxx, Jr.
EXECUTIVE:
/s/ J. Xxxxxx Xxxxxx, Xx.
-----------------------------------
J. Xxxxxx Xxxxxx, Xx.
-16-
NON-QUALIFIED STOCK OPTION AGREEMENT
under the
CHECK INTO CASH, INC.
1997 LONG-TERM INCENTIVE PLAN
Optionee: J. Xxxxxx Xxxxxx, Xx.
Number Shares Subject to Option: 33,600
Exercise Price per Share: $59.00
Date of Grant: May 1, 1998
1. Grant of Option. Check into Cash, Inc. (the "Corporation") hereby
---------------
grants to the Optionee named above (the "Optionee"), under the Check into Cash,
Inc. 1997 Long-Term Incentive Plan (the "Plan"), a Non-Qualified Stock Option to
purchase, on the terms and conditions set forth in this agreement (this "Option
Agreement"), the number of shares indicated above of the Corporation's common
stock (the "Stock"), at the exercise price per share set forth above (the
"Option"). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned such terms in the Plan, or, to the extent not defined
therein, in the Employment Agreement, dated as of April 28, 1998, between the
Corporation and Grantee (the "Employment Agreement").
2. Vesting of Option. Unless the exercisability of the Option is
-----------------
accelerated in accordance with Article 13 of the Plan or the terms of any
Employment Agreement between Optionee and the Corporation (the "Employment
Agreement"), the Option shall vest (become exercisable) in accordance with the
following schedule.
Date Percent of Option Shares Vested
---- -------------------------------
Relocation Date (as defined 25%
in the Employment Agreement)
May 1, 1999 50%
May 1, 2000 75%
May 1, 2001 100%
3. Period of Option and Limitations on Right to Exercise. The Option
-----------------------------------------------------
will, to the extent not previously exercised, lapse under the earliest of the
following circumstances, provided, however, that the Committee may, prior to the
lapse of the Option under the circumstances described in paragraphs (b), (c) and
(d) below, provide in writing that the Option will extend until a later date:
(a) The Option shall lapse as of 5:00 p.m., Eastern Time, on the
day immediately prior to the tenth anniversary of the date of the grant
(the "expiration Date").
(b) The Option shall lapse three months after the Optionee's
termination of employment for any reason other than the Optionee's death
or Disability; provided, however, that if the Optionee's employment is
terminated by the Corporation for Cause or by the Optionee (other than
for Good Reason) without the consent of the Corporation, the Option
shall lapse immediately.
(c) If the Optionee's employment terminates by reason of
Disability, the Option shall lapse one year after the date of the
Optionee's termination of employment.
(d) If the Optionee dies while employed, or during the three-
month period described in subsection (b) above during the one-year
period described in subsection (c) above and before the Option otherwise
lapses, the Option shall lapse one year after the date of the Optionee's
death. Upon the Optionee's death, the Option may be exercised by the
Optionee's beneficiary.
If the Optionee or his beneficiary exercises an Option after termination
of employment, the Option may be exercised only with respect to the shares that
were otherwise vested on the Optionee's termination of employment (including
vesting by acceleration in accordance with Article 13 of the Plan or the
Employment Agreement).
4. Exercise of Option. The Option shall be exercised by written
------------------
notice directed to the Secretary of the Corporation at the principal executive
offices of the Corporation in substantially the form attached hereto as Exhibit
A, or such other form as the Committee may approve. Such written notice shall
be accompanied by full payment in cash, shares of Stock previously acquired by
the Optionee, or any combination thereof, for the number of shares specified in
such written notice; provided, however, that if shares of Stock are used to pay
the exercise price, such shares must have been held by the Optionee for at least
six months. The Fair Market Value of the surrendered Stock as of the date of the
exercise shall be determined in valuing Stock used in payment of the exercise
price. To the extent permitted under Regulation T of the Federal Reserve Board,
and subject to applicable securities laws, the Option may be exercised through a
broker in a so-called "cashless exercise" whereby the broker sells the Option
shares and delivers cash sales proceeds to the Corporation in payment of the
exercise price and all withholding tax obligations, if any (whether federal,
state or local), imposed on the Corporation by reason of the exercise of the
Option (the "Withholding Tax Obligations"). The Committee may, in the exercise
of its discretion, but need not, allow the Optionee to pay the exercise price by
directing the Corporation to withhold from the shares of Stock that would
otherwise be issued upon exercise of the Option that number of shares having a
Fair Market on the exercise dated equal to the exercise price and the
Withholding Obligations, all as determined pursuant to rules and procedures
established by the Committee.
Subject to the terms of this Option Agreement, the Option may be
exercised at any time and without regard to any other option held by the
Optionee to purchase stock of the Corporation.
5. Participation in Shareholder Agreement Execution of this Option
--------------------------------------
Agreement shall constitute a writing, pursuant to Section 7.2 of the Check into
Cash, Inc. Shareholder Agreement (the "Shareholder Agreement"), evidencing the
Optionee's agreement to become a "Shareholder" under the Shareholder Agreement.
Execution of the Option Agreement by the Optionee shall have the same effect as
execution of a counterpart to the Shareholder Agreement.
6. Limitations of Rights The Option does not confer to the Optionee or
---------------------
Optionee's personal representative any rights of a shareholder of the
Corporation unless and until shares of Stock are in fact issued to such a person
in connection with the exercise of the Option, except for those rights and
obligations specifically provided to the Optionee pursuant to the Shareholder
Agreement. Nothing in this Option Agreement shall interfere with or limit in any
way the right of the Corporation or any Subsidiary to terminate the Optionee's
employment at any time, nor confer upon the Optionee any right to continue in
the employ of the Corporation or any Subsidiary.
7. Stock Reserve The Corporation shall at all times during the term of
-------------
this Option Agreement reserve and keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of this Option Agreement.
8. Optionee's Covenant The Optionee hereby agrees to use his best
-------------------
efforts to provide services to the Corporation in a workmanlike manner and to
promote the Corporation's interests.
9. Restrictions on Transfer and Pledge The Option may not be pledged,
-----------------------------------
encumbered, or hypothecated to or in favor of any party other than the
Corporation or a Parent or Subsidiary, or be subject to any lien, obligation, or
liability of the Optionee to any other party other than the Corporation or a
Parent or Subsidiary. The Option is not assignable or transferable by the
Optionee other than by will or the laws of descent and distribution; provided,
however, that the Committee may (but need not) permit other transfers where the
Committee concludes that such transferability (i) does not result in a
accelerated taxation and (ii) is otherwise appropriate and desirable, taking
into account any state or federal tax or securities laws applicable to
transferable options. The Option may be exercised during the lifetime of the
Optionee only by the Optionee or by the Optionee's legal representative.
10. Restrictions on Issuance of Shares If at any time the Board shall
----------------------------------
determine in its discretion, that listing, registration or qualification of the
shares of Stock covered by the Option or the Optionee's legal representative
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory body, is necessary or desirable as a
condition to the exercise of the Option, the Option may not be exercised in
whole or in part unless and until such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Board.
11. Plan Controls The terms contained in the Plan are incorporated into
-------------
and made a part of this Option Agreement and this Option Agreement shall be
governed by and construed in accordance with the Plan. In the event of any
actual or alleged conflict between the provisions of the Plan and the provisions
of this Option Agreement, the provisions of the Plan shall be controlling and
determinative.
-3-
12. Successors. This Option Agreement shall be binding upon any
----------
successor of the Corporation, in accordance with the terms of this Option
Agreement and the Plan.
13. Severability. If any one or more of the provisions contained in
------------
this Option Agreement are invalid, illegal or unenforceable, the other
provisions of this Option Agreement will be construed and enforced as if the
invalid, illegal or unenforceable provision had never been included.
14. Notice. Notices and communications under this Option Agreement
------
must be in writing and either personally delivered or sent by registered or
certified United States mail, return receipt requested, postage prepaid. Notices
to the Corporation must be addressed to:
Check into Cash, Inc.
000 Xxxxxx Xxxxxx, X.X.
Xxx Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: W. Xxxxx Xxxxx, Jr.
or any other address designated by the Corporation in a written notice to the
Optionee. Notices to the Optionee will be directed to the address of the
Optionee then currently on file with Corporation, or at any other address given
by the Optionee in a written notice to the Corporation.
IN WITNESS WHEREOF, Check into Cash, Inc., acting by and through its
duly authorized officers, has caused this Option Agreement to be executed, and
the Optionee has executed this Option Agreement, all as of the day and year
first above written.
CHECK INTO CASH, INC.
By: /s/ W. Xxxxx Xxxxx, Jr.
---------------------------------
Name: W. Xxxxx Xxxxx, Jr.
Title: Chairman & CEO
OPTIONEE: /s/ J. Xxxxxx Xxxxxx, Xx.
------------------------------------
J. XXXXXX XXXXXX, XX.
-4-
