Employment Agreement By And Between World Acceptance Corporation And Francisco Javier Sauza Effective June 1, 2008
By
And Between
World
Acceptance Corporation
And
Francisco
Xxxxxx Xxxxx
Effective
June
1, 2008
This Agreement is effective as of June
1, 2008, by and between World Acceptance Corporation (the "Company"), a South
Carolina corporation and Francisco Xxxxxx Xxxxx (the "Executive").
The Compensation Committee of the Board
of the Company (the "Committee"), acting on behalf of and pursuant to authority
granted by the Board of Directors of the Company (the “Board”) at its meeting on
May 19, 2008, determined that it would be in the best interests of the Company
and its shareholders to retain the services of the Executive for the Period of
Employment (as defined in Section III 3.1 below) and upon the terms provided in
this Agreement. The Executive is willing to be employed by the Company on a full
time basis for said Period of Employment and upon such other terms and
conditions as provided in this Agreement.
In consideration of the mutual
covenants and promises contained in this Agreement, the parties hereby agree as
follows:
SECTION
I
EMPLOYMENT
The Company agrees to employ the
Executive and the Executive agrees to be employed by the Company, for the Period
of Employment, and based upon the other terms and conditions provided in the
Agreement.
SECTION
II
POSITION
AND RESPONSIBILITIES
The Executive agrees to serve as the
Company's Senior Vice President for Mexican Operations and to be responsible for
the duties and responsibilities attributed to such position, reporting to the
President/COO during the Period of Employment. The Executive also
agrees to to serve during the Period of Employment as an Officer and Director of
any subsidiary, affiliate, or parent corporation ("Affiliates") of the Company
which the Board feels is appropriate.
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SECTION
III
TERMS
AND DUTIES
3.1 Period
of Employment
For purposes of this Agreement, the
Period of Employment will commence on June 1, 2008 and shall continue
for a period of three (3) years, subject to extension or termination as provided
in this Agreement. At the end of the three year period commencing from the
effective date of this Agreement, the Board shall review the performance of the
Executive, and this Agreement shall be deemed to be approved and extended
automatically for an additional one (1) year period on the same terms and
conditions, unless either the Company or the Executive gives contrary written
notice to the other no less than ninety (90) days prior to the date on which
this Agreement would otherwise be extended. At the end of each subsequent one
year term, the Board shall review the performance of the Executive, and this
Agreement shall be deemed to be approved and extended automatically for an
additional one (1) year period on the same terms and conditions, unless either
the Company or the Executive gives contrary written notice to the other no less
than ninety (90) days prior to the date on which this Agreement would otherwise
be extended. Non-renewal shall be deemed a termination of employment
as of the end of the Period of Employment. Non-renewal by the Company shall be
subject to the severance provisions set forth in Section VIII.8.1, and
non-renewal by the Executive shall be subject to the severance provisions of
Section VIII.8.3.
3.2 Duties
During the Period of Employment and
except for illness, incapacity and reasonable vacation and holiday periods, the
Executive shall devote all of his business time, attention and skill exclusively
to the business and affairs of the Company and its Affiliates. The Executive
will not engage in any other business activity, and will perform faithfully the
duties which may be assigned to him from time to time by the President/COO or
the Chief Executive Officer of the Company. Notwithstanding the above, nothing
in this Agreement shall preclude the Executive from devoting time during
reasonable periods required for:
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3.2i.
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Serving,
with prior approval of the Board of the Company, as a Director or member
of a committee or organization involving no actual or potential conflict
of interest with the Company;
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3.2.ii.
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Delivering
lectures and fulfilling speaking
engagements;
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3.2.iii.
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Engaging
in charitable and community activities;
or
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3.2.iv.
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Investing
his personal assets in investments or business entities in such form or
manner that will not violate this Agreement or require services on the
part of the Executive in the operation of affairs of the business entities
in which those investments are made. These activities will be allowed as
long as they do not materially affect or interfere with the performance of
the Executive's duties and obligations to the
Company.
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SECTION
IV
COMPENSATION,
BENEFITS, AND PERQUISITES
For all services rendered by the
Executive in any capacity during the Period of Employment, including services as
an Executive, Officer, Director or Committee Member, the Executive shall be
compensated as follows:
4.1 BASE
SALARY
The Company shall pay the Executive a
fixed base salary ("Base Salary") at such annual rate as the Compensation
Committee deems appropriate; provided, however, that the Base Salary may not, be
less than $185,190.00 per year. Increases in Base Salary, once granted by the
Committee, shall not be subject to reduction. Base Salary shall be payable
according to the customary payroll practices of the Company. In no event shall
Base Salary be payable less frequently than once per calendar
month.
4.2 ANNUAL
INCENTIVE AWARDS
The Company may, in its sole
discretion, pay the Executive annual cash incentive compensation
payments. At the beginning of each fiscal year, the Board or
Committee may establish appropriate criteria for making such payments following
the end of such fiscal year.
4.3 LONG-TERM
INCENTIVE AWARDS
The Company may, in its sole
discretion, pay the Executive long-term incentive compensation
payments. The Committee may establish appropriate criteria for making
such payments following the end of the performance period. Payments may, at the
discretion of the Committee, take the form of cash, restricted stock and, stock
options; provided, however, that any grants of restricted stock or stock options
must also be approved in advance by the Company's Compensation and Stock Option
Committee, which administers the Company's stock option plans.
The
intent of such long-term incentive compensation awards is to motivate the
achievement of longer range and strategic goals. The Company agrees to enhance
awards when goals are achieved and exceeded in recognition of the intent of this
plan.
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4.4 BENEFITS
AND PERQUISITES
4.4.i Salaried
Employee Benefits
Executive will be entitled to
participate in all compensation and employee benefit plans and programs and
receive all benefits and perquisites for which any salaried employee of the
Company is eligible under any plan or program now or later established by the
Company for salaried employees, including the World Acceptance Corporation
Supplemental Income Plan (SERP). The Executive will participate to the extent
permissible under the terms and provisions of such plans or programs. Nothing in
this Agreement will preclude the Company from amending or terminating any of the
plans or programs applicable to salaried employees as long as such amendment or
termination is applicable to all similarly situated salaried
employees.
4.4.ii Supplemental
Benefits
The Company also will provide long-term
disability insurance which provides a benefit to the Executive of 60% of the
Executive's Base Salary in effect at the time of disability.
In the event a group long-term
disability benefit is provided by the Company for which the Executive becomes
eligible, the Executive's long-term disability benefits under this Agreement
will be offset by the benefits payable under the group policy such that combined
long-term disability benefits payable under the two plans do not exceed 60% of
the Executive's then current Base Salary.
4.5
AUTOMOBILE
The Company will provide an automobile
(including maintenance and insurance expense) of a value commensurate with his
position for use by the Executive in accordance with the Company Car
Policy.
SECTION
V
BUSINESS
EXPENSES
The Company will reimburse the
Executive for all reasonable travel, entertainment, business and other expenses
incurred by the Executive in connection with the performance of his duties and
obligations under this Agreement.
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SECTION
VI
DISABILITY
6.1 In
the event the Executive during the Period of Employment is unable to perform
with or without accommodation his duties as set forth in Section III.3.2 for
reasons of physical or mental incapacity, the Company will continue to pay the
Executive in accordance with the compensation provisions of this Agreement
during the period of his disability. However, in the event the Executive is
disabled for a continuous period of ninety (90) days or more, the Company may
terminate the employment of the Executive pursuant to this Agreement, and make
payments to the Executive under the terms of the long-term disability provisions
of this Agreement. In the event the Company terminates the employment of the
Executive pursuant to this Section VI, the Company will have no further
compensation obligations to the Executive, except for earned but unpaid Base
Salary, annual incentive compensation payment, if any, pro rated to the date of
termination of employment and any benefits available under the
SERP.
6.2 During
the period the Executive is receiving either regular compensation or disability
payments as described in this Agreement, and as long as he is physically and
mentally able to do so, the Executive will furnish information and assistance to
the Company and from time to time will make himself available to the Company to
undertake assignments consistent with his prior position with the Company and
his physical and mental health. During the disability period, the Executive is
responsible for reporting directly to the President/COO. If the Company fails to
make a payment or provide a benefit required as part of the Agreement, the
Executive's obligation to fulfill information and assistance will
end.
6.3 The
term "disability" will have the same meaning as under the disability benefits to
be provided pursuant to this Agreement, or such group disability plan as may be
in effect for similarly situated employees at that time. In the event the
definition of disability is not consistent, the definition contained in the plan
document of such group plan shall control.
SECTION
VII
DEATH
In the event of the death of the
Executive during the Period of Employment, the Company's obligation to make
payments under this Agreement shall cease as of the date of death, except for
Base Salary through the end of the Company's normal payroll period. The
Executive's designated beneficiary will be entitled to receive the proceeds of
any life or other insurance or other death benefit programs provided in this
Agreement, including the SERP according to the terms and conditions of that
Plan.
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SECTION
VIII
EFFECT
OF TERMINATION OF EMPLOYMENT
Except as
otherwise set forth in Sections VI, VII and IX:
8.1 If
the Executive's employment terminates, due to either a Without Cause Termination
or a Constructive Discharge, as hereafter defined in this Agreement, the Company
will pay the Executive, his beneficiary or beneficiaries,
8.1.i 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) the Executive’s accrued Annual Base Salary and any accrued vacation
pay through the Date of Termination, (2) the Executive’s business expenses that
have not been reimbursed by the Company as of the Date of Termination that were
incurred by the Executive prior to the Date of Termination in accordance with
the applicable Company policy, and (3) the Executive’s Annual Bonus earned for
the fiscal year immediately preceding the fiscal year in which the Date of
Termination occurs if such bonus has not been paid as of the Date of Termination
(“Accrued Compensation); and
B. the
product of (1) the average annual bonus paid to the Executive in respect of the
three final years prior to the Date of Termination (“Reference Bonus”), and (2)
a fraction, the numerator of which is the number of days from April 1 in the
fiscal year in which the Date of Termination occurs through the Date of
Termination, and the denominator is 365 (the “Pro Rata Bonus”); and
8.1.ii the Company
shall pay to the Executive as severance an amount equal to the product of one
times the sum of (x) the Executive’s Annual Base
Salary and (y) the Reference Bonus, such sum to be paid in 12 equal
monthly installments in accordance with the Company’s normal payroll policies;
and
8.1.iii any stock
options and other equity incentives shall vest and become immediately
exercisable, as the case may be and all vested stock options held by the
Executive shall be exercisable for a period of one year, but not beyond the
original expiration of their term (“Equity Benefits”); and
8.1.iv for one year
after the Date of Termination, or until such time that the Executive becomes
employed by another company that offers similar benefits and is eligible for
such benefits, the Company shall continue to provide to the Executive and his
eligible dependents the health, welfare and other benefits specified in Section
IV.4.4 above as if the Executive remained an active employee of the
Company. Subject to the provision of health benefits as provided
below, such benefits will be provided to the Executive only to the extent such
benefits may be provided to the Executive on a non-taxable basis. If
the health benefits provided to the Executive are considered taxable benefits,
such health benefits will be provided to the Executive for the lesser of the
applicable maximum coverage period under the COBRA health care continuations or
one year. If the Company is unable to provide the coverage indicated
due to plan limitations, it will make one year of payments to the Executive
equal to the premiums in effect at the time of termination (“Welfare and Fringe
Benefits”);
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8.2 If
the Executive's employment terminates due to a Termination for Cause, as
hereinafter defined, the Company will pay to the Executive the Accrued
Compensation defined in Section VIII.1.i. No other payments will be
made and the Company will not be obligated to provide any other benefits to or
on behalf of the Executive.
8.3 If
Executive resigns from employment with the Company or gives notice of
non-renewal in accordance with Section III.3.1 hereof, the Company will pay the
Accrued Compensation defined in Section VIII.1.i. No other payments
will be made and the Company will not be obligated to provide any other benefits
to or on behalf of the Executive.
8.4 Except
as otherwise expressly provided in this Agreement and except for any long-term
incentive payments to which Executive is entitled, upon termination of the
Executive's employment hereunder, the Company's obligation to make payments or
provide benefits under this Agreement will cease.
SECTION
IX
DEFINITIONS
For this
Agreement, the following terms have the following meanings:
9.1 Termination
for Cause means termination of the Executive's employment by the Company, by
written notice to the Executive, specifying the event relied upon for such
termination, due to (i.) the Participant's gross misconduct in respect of his
duties for the Company or any conduct which has resulted or is likely to result
in damage to the Company’s reputation, (ii.) conviction for a felony, (iii.)
knowing and intentional failure to comply with applicable laws with respect to
the execution of the Company's business operations, (iv.) theft, fraud,
embezzlement, dishonesty or other conduct which has resulted or is likely to
result in material economic damage to the Company or any of its Affiliates, or
(v.) substantial dependence on or addiction to alcohol or use of drugs except
those legally prescribed by and administered pursuant to the directions of a
practitioner licensed to do so under the laws of the state or country of
licensure.
9.2 Constructive
Discharge means termination of the Executive's employment by the Company due to
a failure of the Company to fulfill its obligations under this Agreement in any
material respect, including any material reduction of the Executive's Base
Salary, failure to appoint or reappoint the Executive to the office of Senior
Vice President, Mexican Operations or other material change by the Company in
the functions, duties or responsibilities of the position which would reduce the
ranking or level, responsibility, importance or scope of the
position. This would also include any assignment or
reassignment that is a material change in geographical location. The
Executive will provide the Company written notice which describes the
circumstances being relied on for the Constructive Discharge with respect to the
Agreement within ninety (90) days after the event giving rise to the notice. The
Company will have thirty (30) days to remedy the situation prior to the
Termination for Constructive Discharge.
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9.3 Without
Cause Termination means termination of the Executive's employment by the Company
other than due to death or disability and other than Termination for Cause and
includes, without limitation, termination of the Executive's employment by the
Company's giving notice of non-renewal in accordance with Section III.3.1
hereof.
SECTION
X
OTHER
DUTIES OF THE EXECUTIVE DURING AND
AFTER
THE PERIOD OF EMPLOYMENT
During
the Period of Employment and for 12 months thereafter:
10.1 The
Executive will, with reasonable notice, furnish information as may be in his
possession and cooperate with the Company as may reasonably be requested in
connection with any claim or legal actions in which the Company is or may become
a party.
10.2 The
Executive recognizes and acknowledges that all information pertaining to the
affairs, business, clients, customers or other relationships of the Company is
confidential and is a unique and valuable asset of the Company. Access to and
knowledge of this information is essential to the performance of the Executive's
duties under this Agreement.
10.3 The
Executive will not, except to the extent reasonably necessary in performance of
the duties under this Agreement or except as required by law, give to any
person, firm, company, corporation or governmental agency any information
concerning the affairs, business, clients, customers or other relationships of
the Company. The Executive will not make use of this type of information for his
own purposes or for the benefit of any person or organization other than the
Company. The Executive will also use his best efforts to prevent the disclosure
of this information by others.
10.4 All
records, memoranda, etc. relating to the business of the Company whether made by
the Executive or otherwise coming into his possession are confidential and will
remain the property of the Company and in the Company’s possession.
10.5 The
Executive will not use his status with the Company to obtain financial benefits,
loans, goods or services from another organization on terms that would not be
available to him in the absence of his relationship with the
Company.
10.6 The
Executive will not make any statements or perform any acts intended to advance
the interest of any existing or prospective competitors of the Company in any
way that will injure the interest of the Company.
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10.7 The
Executive, without prior express written approval by the Board, will not
directly or indirectly own or hold any proprietary interest in, be employed by,
or receive compensation from any party engaged in the same business as the
Company. For the purposes of this Agreement, proprietary interest means legal or
equitable ownership, whether through stock holdings or otherwise of an equity
interest in any privately owned business firm or entity or ownership of more
than five percent (5%) of any class of equity interest in a publicly-held
corporation.
10.8 The
Executive, without express written approval from the Board, will not solicit any
members of the then current clients of the Company or then current employees of
the Company or discuss with any employee of the Company information or operation
of any business intended to compete with the Company. Executive agrees that any
obligation of the Company to make any payments to the Executive under the terms
of this Agreement will cease upon any violation of the preceding
paragraphs.
The parties desire that the provisions
of Section X be enforced to the fullest extent permissible under the laws and
public policies applied in the jurisdictions in which enforcement is sought, and
agree that the Company may specifically enforce the terms hereof. If any portion
of Section X is judged to be invalid or unenforceable, Section X will be amended
to conform to the legal changes so that the remainder of the Agreement remains
in effect.
SECTION
XI
EFFECTS
OF CHANGE IN CONTROL
11.1 In
the event there is a Change in Control (as hereafter defined) of the ownership
of the Company, the Executive may at any time immediately resign upon written
notice to the Company. In this event, the Company will pay the Accrued
Compensation through the Date of Termination.
11.2 In
the event there is a Change in Control of the Company, and the Executive's
employment is terminated within one year of such Change in Control due to a
Without Cause termination or Constructive Discharge, the Company will pay the
Executive:
11.2.i In the form
of a lump sum payment of Accrued Compensation, Pro Rata Bonus and one times the
sum of Base Salary plus the Reference Bonus as defined in Section 8 – except
that the Base Salary used for calculation of the payment will be the highest
base salary in effect between the date immediately preceding the occurrence of
the Change in Control and the Executive’s Date of Termination. Such
amount will be paid within thirty (30) days after the Executive’s Date of
Termination.
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11.2.ii In
addition, any stock options and other equity incentives shall vest and become
immediately exercisable, as the case may be and all vested stock options held by
the Executive shall be exercisable for a period of one yeat, but not beyond the
original expiration of their term.
11.2.iii All other
benefits described in Section 8.1.iv of this Agreement will be continued in
accordance with Section 8.1.iv of this Agreement.
It is
understood that, in the event that Executive is entitled to severance payments
under this Section 11.2, then such severance payments shall be in lieu of any
severance payments to which the Executive would be entitled under Section 8
thereof.
11.3 It
is the intention of the parties hereto that the severance payments and other
compensation provided for herein are reasonable compensation for Executive's
services to the Company and shall not constitute "excess parachute payments"
within the meaning of Section 280G of the Code and any regulations there under.
In the event that the Company's independent accountants acting as auditors for
the Company on the date of a Change in Control determine that the payments
provided for herein constitute "excess parachute payments," then the
compensation payable hereunder shall be reduced to the point that such
compensation shall not qualify as "excess parachute payments."
11.4 Change
in Control means a “change in ownership,” a “change in effective control,” or a
“change in the ownership of substantial assets” of a corporation as described in
Treasury Regulations Section 1.409A-3(g)(5) (which events are collectively
referred to herein as “Change in Control events”).
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11.4.i.
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A
“change in ownership” of the Company occurs on the date that any one
person, or more than one person acting as a group, acquires ownership of
stock of the corporation that, together with stock held by such person or
group, constitutes more that fifty percent (50%) of the total fair market
value or total voting power of the Company. However, if any one
person, or more than one person acting as a group, is considered to own
more than fifty percent (50%) of the total fair market value or total
voting power of the stock of the Company, the acquisition of additional
stock by the same person or persons is not considered to cause a change in
ownership of the Company (or to cause a change in the effective control of
the Company (within the meaning of paragraph (b)
below)).
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11.4.ii
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If
the Company has not undergone a change in ownership under paragraph (a)
above, a “change in effective control” of the Company occurs on the date
that either:
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(a)
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Any
one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the Company
possessing 30 percent or more of the total voting power of the stock of
the Company; or
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(b)
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A
majority of members of the Company’s Board is replaced during any 12-month
period by directors whose appointment or election is not endorsed by a
majority of the members of the Company’s Board prior to the date of the
appointment or election.
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11.4.iii
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A
“change in the ownership of substantial assets” of the Company occurs on
the date that any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of
the most recent acquisition by such person or persons) assets from the
Company that have a total gross fair market value equal to or more than
forty percent (40%) of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means
the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with
such assets.
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SECTION
XII
WITHHOLDING
TAXES
The Company may directly or indirectly
withhold from any payments under this Agreement all federal, state, city or
other taxes that shall be required to be withheld pursuant to any law or
governmental regulation.
SECTION
XIII
EFFECT
OF PRIOR AGREEMENTS
This Agreement contains the entire
understanding between the Company and the Executive with respect to the subject
matter and supersedes any prior Employment Agreement between the Company and the
Executive, except that this Agreement shall not affect or operate to reduce any
benefits or compensation inuring to the Executive of a kind elsewhere provided
and not expressly provided in this Agreement.
SECTION
XIV
CONSOLIDATION,
MERGER, OR SALE OF ASSETS
Nothing in this Agreement shall
preclude the Company from consolidating or merging into or with, or transferring
all or substantially all of its assets to another corporation or person which
assumes this Agreement and all obligations and undertakings of the Company
hereunder. Upon such a Consolidation, Merger, or Sale of Assets the term "the
Company" as used will mean the other corporation and this Agreement shall
continue in full force and effect.
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SECTION
XV
MODIFICATION
This Agreement may not be modified or
amended except in writing signed by both parties. No term or condition of this
Agreement will be deemed to have been waived except in writing by the party
charged with waiver. A waiver shall operate only as to the specific term or
condition waived and will not constitute a waiver for the future or act on
anything other than that which is specifically waived.
SECTION
XVI
COMPLIANCE
WITH SECTION 409A
Notwithstanding any other provisions of
this Agreement, to the extent applicable, this Agreement is intended to comply
with Internal Revenue Code Section 409A and the regulations (or similar
guidance) there under. To the extent any provision of this Agreement
is contrary to or fails to address the requirements of Code Section 409A, this
Agreement shall be construed and administered as necessary to comply with such
requirements. If the Executive is considered a “specified employee”
(as defined in Code Section 409A and related treasury regulations) at the time
of any termination of employment under Section 8.1 or Section 11.2 of this
Agreement, a portion of the amount payable to Executive under Section 8.1 or
Section 11.2 shall be delayed for six (6) months following Executive’s Date of
Termination to the extent necessary to comply with the requirements of Code
Section 409A. Any amounts payable to Executive during six (6) month
period that are delayed due to the limitation in the preceding sentence shall be
made to Executive in a lump sum on or after the first day of the seventh (7th) month
following Executive’s Date of Termination.
SECTION
XVII
GOVERNING
LAW
This Agreement has been executed and
delivered in the State of South Carolina and its validity, interpretation,
performance and enforcement shall be governed by the laws of that
state.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed as of
__________ __, 2008 by its duly authorized officers and Executive has hereunto
set his hand.
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WORLD
ACCEPTANCE CORPORATION
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By:
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Title:
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(SEAL)
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F.
Xxxxxx Xxxxx
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SWORN TO
and subscribed before me,
this
______ day of _________________, 2008.
_________________________________
Notary
Public for South Carolina
My
Commission Expires:_____________
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