EXHIBIT 10.3(b)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into effective as of the 2nd day of February, 2001, by and
between COMPUCREDIT CORPORATION, a Georgia corporation ("CompuCredit"), and
XXXXXX X. XXXXXXX, an individual resident of the State of Georgia
("Employee").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain Employment
Agreement (the "Initial Agreement"), dated as of January 1, 1999, as amended by
that certain First Amendment to Employment Agreement (the "First Amendment"),
dated as of December 31, 1999 (the Initial Agreement and the First Amendment are
collectively referred to herein as the "Original Agreement"), providing for the
employment of Employee by CompuCredit on the terms and conditions therein;
WHEREAS, in consideration of, among other things, CompuCredit's
promoting Employee to Chief Financial Officer, increasing Employee's
compensation and granting Employee additional stock options, Employee has agreed
to devote 100% of her business efforts to CompuCredit; and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in its entirety to reflect the above changes as well as changes to
other terms and conditions of Employee's employment with CompuCredit;
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 Chief Financial Officer of CompuCredit, and, as such, Employee shall perform
the executive level services (the "Services") for CompuCredit as delegated to
her from time to time by CompuCredit's President (or his designee). Employee
hereby agrees to devote 100% of her business time, attention, energy and skill
exclusively to performing her obligations and duties hereunder and to engage in
no business activities other than the performance of her obligations and duties
hereunder, except for those specific activities as the CEO of CompuCredit shall
approve in advance in writing. Employee
shall perform her obligations and duties hereunder diligently, faithfully and
to the best of her 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 effective date hereof and shall continue for an
initial term (the "Initial Term") of three (3) years, unless sooner terminated
in accordance with Section 2.2. Upon expiration of the Initial Term, Employee's
employment hereunder shall be continued (upon the same terms, subject to the
same conditions and at the same salary or at a salary agreed to by both
CompuCredit and Employee) after such expiration indefinitely on an at will
basis, subject to termination at any time by either party on not less than
thirty (30) days prior written notice by either party, or as otherwise provided
pursuant to Section 2.2 of this Agreement. The Initial Term and any additional
period of time Employee is employed by CompuCredit thereafter shall be
collectively referred to as the "Term."
2.2 TERMINATION OF EMPLOYMENT.
(a) This Agreement shall automatically and immediately
terminate upon the death of Employee; or
(b) Either party may terminate this Agreement upon the
Complete Disability of Employee. "Complete Disability", as used herein, shall
mean the inability of Employee by reason of any physical or mental impairment to
perform fully and effectively, as determined in the reasonable judgment of a
competent physician selected in good faith by CompuCredit, the Services on a
full time basis for an aggregate of 90 days in any period of 180 consecutive
days.
(c) In addition to any other rights or remedies available to
CompuCredit, CompuCredit may, in its sole discretion, terminate 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:
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(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,
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) Employee shall be entitled to receive a $100,000 bonus per
year based on a net income per common share target that is mutually established
in good faith for each fiscal year by Employee and CompuCredit. Such bonus will
be earned, accrued and payable in a manner consistent with CompuCredit's
policies related to incentive compensation. Subject to section 3(d) below, any
bonus earned by Employee shall be prorated for any partial fiscal year worked by
Employee.
(c) At a meeting of the Compensation Committee of
CompuCredit's Board of Directors (the "Committee") held on the date hereof, the
Committee has granted to Employee an option (the "2000 Plan Option") to purchase
seventy-five thousand (75,000) shares of CompuCredit's common stock under
CompuCredit's 2000 Stock Option Plan at a price equal to the fair market value
of CompuCredit's common stock on the effective date of such grant. Each of such
Options shall vest 33.3% on each anniversary of the grant date, shall terminate
on
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February 3, 2005 and shall be evidenced by a written stock option agreement
in the form customarily used by CompuCredit. The grant of the 2000 Plan Option
shall be subject to the approval of the 2000 Stock Option Plan by the
shareholders of CompuCredit at its next annual meeting.
(d) 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, that
Employee shall be entitled to receive (i) any salary already earned under
Section 3(a) 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 6 months. Employee will not
be entitled to any severance or other benefits upon any termination of her
employment hereunder.
(e) If, during the Initial Term, CompuCredit defaults
hereunder by terminating Employee's employment (other than pursuant to Section 2
hereof), Employee shall be entitled to compensation paid in accordance with this
Section 3 for the remainder of the Initial Term.
4.0 VACATION. Employee shall be entitled to such number of weeks of
paid vacation in each calendar year of the Term as is provided in, and in
accordance with, CompuCredit's policies in effect from time to time for
management employees.
5.0 BENEFITS. Employee shall be entitled to participate in executive
employee benefit plans generally provided by CompuCredit to its executives, but
only if and to the extent provided from time to time in such executive benefits
plans and for so long as CompuCredit provides or offers such benefit plans.
6.0 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.
7.0 CONFIDENTIALITY.
(a) PROPRIETARY INFORMATION. Employee acknowledges that as an
employee of CompuCredit, she 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
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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 she 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
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 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 her possession or control and
shall destroy all other Proprietary Information in her 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
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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 her 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 she 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 her 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, she will only be bound by the covenant
against competition if CompuCredit elects to pay Employee her then current
salary for the one (1) year period of time from and after the Termination Date.
(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
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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 her 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
(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 who would
provide similar services to a Competitor.
(d) Employee hereby represents and warrants to CompuCredit
that she is not now a party to any agreement, court order, decree or other
restriction which restricts her 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.
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10.0 RESTRICTIONS 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 she 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 her 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), she 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 Xxxxx X. Xxxxx III or Xxxxx X. Xxxxx,
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 CERTAIN COVENANT IF COMPUCREDIT GOES PRIVATE. If at any time prior
to the "Exercise Date" (as defined in Employee's Nonqualified Stock Option
granted to her pursuant to Section 3(c) hereof) 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 or quoted on the
NASDAQ National Market System and are owned of record by not more than 100
shareholders) while still being controlled by Xxxxx X. Xxxxx III and Xxxxx X.
Xxxxx, CompuCredit agrees that such Nonqualified Stock Option shall be amended
to provide that any cash dividends or shareholder distributions made while a
private company and prior to the Exercise Date shall be paid to Employee at the
time the Nonqualified Stock Option is exercised.
12.0 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
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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.
13.0 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.
14.0 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.
15.0 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
Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. House, Jr.
(b) If to Employee: Xxxxxx X. Xxxxxxx
________________________
________________________
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.
16.0 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia.
17.0 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 her own independent judgment as
to the merits of this Agreement and
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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.
18.0 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.
19.0 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.
20.0 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPUCREDIT CORPORATION
By: /s/ Xxxxxxx X. House, Jr.
--------------------------------------
Xxxxxxx X. House, Jr., President
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT A
Salary per annum............................................................$200,000
