Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT IS SUBJECT TO MANDATORY AND BINDING ARBITRATION
This
Employment Agreement
(the "Agreement")
is entered into as of
January 1, 2003 (the "Effective
Date"), by and between First Cash Financial
Services, Inc. (the "Company"), a
Delaware corporation,
and J. Alan Barron
(the "Executive").
NOW,
THEREFORE,
in consideration of the mutual covenants and
obligations hereinafter set forth,
the parties agree as follows:
1.
EMPLOYMENT.
The
Company desires
to continue
to employ the Executive, and the
Executive agrees to continue to
work in the employ of the Company, according
to the following terms and
conditions.
2.
DUTIES.
(a) The
Company will continue to employ the Executive as Chief
Operating Officer ("COO") of the
Company.
(b) The
Executive will serve in the Company's employ in that position.
(c) Under
the direction of the Chief Executive Officer and President of
the Company, the Executive shall have such powers, functions, duties,
responsibilities and authority as
are customarily required of and given to a
COO and such other duties and responsibilities commensurate with such
position. Such powers, functions, authority,
duties and
responsibilities
shall include, but not be limited to: the day-to-day management of the
Company's stores and kiosks;
management, promotion,
acquisition,
retention
and termination of operational personnel; marketing of the Company's
products and services; increasing
the financial performance of the Company's
stores and kiosks; selection of
locations for and development of new stores
and kiosks; identification and assessment of new geographic markets;
maintaining, safe guarding, and maximizing the Company's assets; and
ensuring that all operations are in compliance with laws and regulations
applicable to the Company and its
affiliates. The
Executive also shall have
such additional powers, authority,
functions, duties and responsibilities as
may be assigned to him by the Chief Executive Officer or President.
Executive shall use his
best efforts to
achieve all
performance goals
and
criteria established by the Chief
Executive Officer or President. Executive
shall exercise such powers and authority and perform all such functions,
duties and responsibilities
consistent with Company practices and policies.
3.
TERM OF
EMPLOYMENT.
The term
of employment
of Executive
is through December 31, 2005.
Subject to the provisions of Section 8, the term of the Executive's
Employment hereunder shall
commence on January 1,
2003. At the
discretion
of the Board, the term of employment shall be extended for additional
successive periods of one year,
each year beginning on January 1, 2004, and
each anniversary date thereafter, provided that
during the previous
year,
the Executive met the stipulated performance criteria established by the
Board.
4.
EXTENT OF
SERVICES.
The
Executive shall not at any time during his Employment engage in
any
other business related activities
unless those
activities do not
interfere
materially with the Executive's
duties and
responsibilities to the Company
at that time. The foregoing,
however, shall not preclude the Executive from
engaging in appropriate civic,
charitable, professional or trade association
activities or from serving on one or more other boards of directors of
public or private companies, as
long as such activities and services do not
conflict with his responsibilities
to the Company.
5.
NO FORCED
RELOCATION.
The
Executive shall not be
required to
move his principal place of
residence from the Dallas/Fort
Worth, Texas metropolitan area or to perform
regular duties that could
reasonably be expected to require either such move
against his wish or to spend amounts of time each week outside the
Dallas/Fort Worth, Texas metropolitan area which are unreasonable in
relation to the duties and
responsibilities of the Executive hereunder, and
the Company agrees that, if
it requests the
Executive to make such
a move
and the Executive declines that request, (a) that declination shall not
constitute any basis for a
termination of the Executive's Employment and (b)
no animosity or prejudice will be
held against Executive. Executive agrees
that future travel in amounts reasonably consistent with Executive's
previous amount of travel shall
not be deemed unreasonable.
6.
COMPENSATION.
(a)
SALARY.
An annual
base salary shall be payable to the Executive by the Company
as a guaranteed minimum amount
under this Agreement
for each calendar
year
during the period from January 1, 2003 to the termination date of the
Executive's Employment. That
annual base salary
shall (i) accrue daily
on
the basis of a 365-day year, (ii) be payable to the Executive in the
intervals consistent with the
Company's normal payroll schedules (but in no
event less frequently than semi-monthly) and (iii) be payable beginning
January 1, 2003 at an initial annual rate of $350,000. The Executive's
annual base salary shall not be
decreased, but shall be adjusted annually in
each December to reflect such adjustments, if any, as the compensation
committee of the Board determines appropriate based on the Executive's
performance during the
most recent
performance period, in
accordance with
the Company's compensation
policies. A failure of
the Company to
increase
the Executive's annual base salary shall not constitute a breach or
violation of this Agreement by the
Company.
(b)
BONUS.
At the
discretion of
the Board's compensation committee, Executive
shall be eligible to be paid an annual bonus by the Company for each
calendar year during the period
from January 1, 2003 to the termination date
of the Executive's Employment.
That annual bonus
shall be payable at
such
rate and in such amount as is determined
by the compensation
committee of
the board of directors. The Executive's annual bonus, if any, shall be
adjusted annually in each December
to reflect such
adjustments, if any,
as
the Board's compensation committee determines appropriate
based on the
Executive's performance
during the most recent performance period, in
accordance with the Company's compensation policies.
A failure of the
Company to pay Executive
an annual bonus shall
not constitute a
breach or
violation of this Agreement by the
Company.
(c)
OTHER
COMPENSATION.
The
Executive shall be
entitled to
participate in
all Compensation
Plans from time to time
in effect while in
the Employment of the
Company,
regardless of whether the
Executive is an
Executive Officer. All awards to
the Executive under all Incentive Plans shall take into account the
Executive's positions with
and duties and
responsibilities to
the Company
and its subsidiaries and affiliates. The Company shall supply Executive
with an automobile allowance, the
make and model of which is subject to the
approval of the compensation
committee of the Board, and be responsible for
all expenses related thereto throughout the term of this Agreement.
Executive may select an automobile
of his own choosing
which is
reasonable
in cost, appearance and function,
taking into account the powers, authority,
functions, duties and responsibilities of Executive, and the financial
position and condition of
the Company. In
consideration and in
support of
Executive's duties under this Agreement, which include fostering the
goodwill, growth and earnings
of the Company, the
Company shall pay for
a
private club membership for Executive, for such amount as is reasonable
taking into account the powers, authority, functions, duties and
responsibilities of Executive, subject to approval of the compensation
committee of the Board.
(d)
EXPENSES.
The
Executive shall be entitled to prompt reimbursement of all
reasonable business expenses incurred by him in the performance of his
duties during the term of this Agreement, subject to the presenting of
appropriate vouchers and receipts
in accordance with the Company's policies.
7.
OTHER
BENEFITS.
(a)
EMPLOYEE
BENEFITS AND PROGRAMS.
During the
term of this Agreement, the Executive and the members of his
immediate family shall be
entitled to
participate in any
employee benefit
plans or programs of the Company to the extent that his position,
tenure,
salary, age, health and other
qualifications make
him or them, as the
case
may be, eligible to participate, subject to the rules and regulations
applicable thereto.
(b)
SUBSCRIPTIONS
AND MEMBERSHIPS.
The
Company shall pay periodical subscription costs and membership
fees
and dues for the Executive to join professional organizations
appropriate
for the Executive, and which further the interests of the Company. The
Company shall also pay or
reimburse Executive for Executive's membership in
such additional clubs and
organizations as may be agreed upon as reasonable
and appropriate between Executive
and the Company.
(c)
VACATION.
The
Executive shall be
entitled to four weeks
of vacation leave
with
full pay during each year of this
Agreement (each such year being a 12-month
period ending on the one year anniversary date
of the commencement of
the
Executive's employment.) The times
for such vacations
shall be selected
by
the Executive, provided the dates
selected do not interfere materially with
the performance of Executive's duties and responsibilities under this
agreement. The Executive may
accrue up to four
weeks of vacation time
from
year to year, but vacation time otherwise shall not accrue from year to
year.
(d)
ACCOUNTING
The
Executive shall be
entitled to Company
paid or reimbursed
annual
accounting services of up to $500
per year.
(e)
INSURANCE
For the
term of this Agreement, the Company will provide, at no cost to
Executive, term life insurance
benefits. The policy
shall be in the
amount
of $500,000 with the loss payee designated by the Executive. In the
discretion of the Board, during the term of this Agreement, the Company
shall also provide, at no cost to
Executive, disability insurance sufficient
to provide, in the event Executive
becomes disabled, payments that would be
made to Executive equal or up to the amount equal to Executive's base
salary, as of the date of
disability, provided
such coverage is
reasonably
available at reasonable cost. Executive may procure his own disability
coverage and at the discretion of the Board the cost of such disability
coverage may be reimbursed, if the
same is not provided by the Company.
8.
TERMINATION.
The
Executive's Employment
hereunder may be
terminated prior to
the
term provided for in Section 3
only under the following circumstances:
(a) DEATH.
The
Executive's Employment shall terminate automatically on the date
of
his death.
(b)
DISABILITY.
If a
Disability occurs and
is continuing, the
Executive's
Employment
shall terminate 180 days after the Company gives the Executive written
notice that it intends to terminate his Employment on account of that
Disability, or on such later date
as the Company
specifies in such
notice.
If the Executive resumes the
performance of substantially all of his duties
under this Agreement before the
termination becomes effective, the notice of
intent to terminate shall be deemed to have been revoked. Disability of
Executive shall not prevent the
Company from making necessary changes during
the period of Executive's
Disability to conduct its affairs.
(c)
VOLUNTARY
TERMINATION.
The
Executive may terminate his Employment at any time and without
Good
Cause with 90 days' prior written
notice to the Company.
(d)
TERMINATION FOR GOOD CAUSE.
The
Executive may terminate his Employment for Good Cause at any time
within 180 days (one year if the
Good Cause is the occurrence of a Change of
Control) after the Executive
becomes consciously
aware that the facts
and
circumstances constituting Good
Cause exist are continuing and by giving the
Company 30 days' prior written notice that the Executive intends to
terminate his Employment for Good Cause, which notice will state with
specificity the basis for Executive's contention that Good Cause exists;
provided, however, that
if Executive
terminates for
Good Cause
due to a
Change in Control, the Change in
Control must actually
occur. A Change
in
Control will not be deemed to have actually occurred
merely because of
a
pending or possible event. The Executive shall not have Good Cause to
terminate his Employment solely by
reason of the
occurrence of a Change
in
Control until one year after the date such Change in Control actually
occurs. The Executive may not terminate for Good Cause if the facts and
circumstances constituting Good
Cause are substantially cured by the Company
within 30 days following notice to
the Company.
(e)
INVOLUNTARY TERMINATION.
The
Executive's Employment is at will. The Company reserves the
right
to terminate the Executive's Employment at anytime whatsoever, without
cause, with 30 days' prior written
notice to the Executive.
(f)
INVOLUNTARY TERMINATION FOR CAUSE.
The
Company reserves the right to terminate the Executive's
Employment
for Cause. In the event that the
Company determines that Cause exists under
Section 12(f)(i) for the termination of the Executive's Employment, the
Company shall provide in writing
(the "Notice of Cause"), the basis for that
determination and the manner, if
any, in which the breach or neglect can be
cured. If either the Company has determined that the breach or neglect
cannot be cured, as set forth in the Notice of Cause, or has advised the
Executive in the Notice of Cause of the manner in which the breach or
neglect can be cured, but the
Executive fails to
substantially effect
that
cure within 30 days after
his receipt of the
Notice of Cause, the
Company
shall be entitled to give the Executive written notice of the Company's
intention to terminate Executive's Employment for Cause (the "Notice of
Intent to Terminate"). Executive
shall have
the right to object to any
Notice of Intent to Terminate Executive's Employment for Cause, by
furnishing the Company within ten
days of receipt by Executive of the Notice
of Intent to Terminate Executive's Employment
for Cause,
written notice
specifying the reasons
Executive contends
either (i)
Cause under
Section
12(f)(i) does not exist or has
been timely cured or (ii) in the circumstance
of a Notice of Intent to Terminate Executive's
Employment for Cause
under
Section 12(f)(ii), that such Cause
does not exist (the "Notice of Intent to
Join Issue over Cause"). The failure of Executive to timely furnish the
Company with a Notice of Intent to Join Issue over Cause shall serve to
conclusively establish
Cause hereunder,
and the right of the Company to
terminate the Executive's
Employment for Cause.
Within 30 days
following
its receipt of a timely Notice of Intent to Join Issue Over Cause, the
Company must either rescind the Notice of Intent to Terminate the
Executive's Employment
for Cause, or file a demand for arbitration in
accordance with Section 26, to
determine whether the Company is entitled to
terminate Executive's Employment for Cause. During the pendency of the
arbitration proceeding, and
until such
time as Executive's Employment
is
terminated, Executive shall be
entitled to receive
Compensation under
this
Agreement. In the discretion of the Board,
however, the Executive
may be
reassigned or suspended with pay, during not only the pendency of the
arbitration proceeding,
but during
the period
from the date the Company
furnishes Executive with
a Notice of
Intent to Terminate the Executive's
Employment for Cause until such date as the notice is rescinded, a
determination that Cause does not exist is made in the arbitration
proceeding or in the event of a
determination that
Cause does exist in
the
arbitration proceeding, the
effective date of the termination of Executive's
Employment for Cause. In the event that the Company determines
that Cause
exists under Section 12(f)(ii) for the termination of the Executive's
Employment, it shall be entitled to immediately furnish Executive with a
Notice of Intent to Terminate Executive's Employment
without providing
a
Notice of Cause or any opportunity prior to that notice to contest that
determination. Any termination of the Executive's Employment for Cause
pursuant to this Section 8(f) shall be effective immediately upon the
Executive's receipt of the
Company's written notice of that termination and
the Cause therefore.
(g)
VOLUNTARY TERMINATION AT CONCLUSION OF TERM
At the
expiration of the term
of employment as
stated in Section
3,
either party may terminate this
Agreement by giving the other party written
notice at least 90 days for the
Executive and 30 days for the Company before
the expiration of the term of
employment stated in Section 3.
9.
SEVERANCE
PAYMENTS.
Unless
effected under Section
8(g), if the
Executive's Employment
is
terminated during the term of this Agreement, the Executive shall be
entitled to receive severance
payments as follows:
(a)
If the
Executive's Employment
is terminated under Section 8(a),
(b), (d), (e) or (g), the Company will pay or cause to be paid to the
Executive (or, in the case of a termination under Section 8(a), the
beneficiary the Executive has designated in writing to the Company to
receive payment pursuant
to this Section
9(a) or, in
the absence of
such
designation, the Executive's
estate): (i)
the
Accrued Salary; (ii) the
Other Earned Compensation;
(iii) the Reimbursable Expenses;
and (iv) the
Severance Benefit.
(b)
If the
Executive's Employment is terminated under Section 8(c) or
(f), the Company will pay or
cause to be paid to
the Executive: (i)
the
Accrued Salary determined
as of and through the termination date of the
Executive's Employment; (ii)
the Other Earned Compensation; and (iii)
the
Reimbursable Expenses.
(c)
Any
payments to which the Executive (or his designated
beneficiary or estate, if Section 8(a) applies) is entitled pursuant to
paragraph (i) of subsection (a) of this Section 9 or paragraph (i) of
subsection (b) of this Section
9, as applicable, will
be paid in a
single
lump sum within thirty
days after the
termination date of
the Executive's
Employment. At the sole option and election of the Executive (or his
designated beneficiary or estate,
if Section 8(a)
applies), which
election
shall be made within 30 days
of the termination of
Executive's
Employment,
the Company shall pay the
executive the Severance Benefit, if at all, (1) in
a lump sum on a present value basis; (2) on a semi-monthly basis (as if
Executive's employment had
continued), or (3) on
such other periodic
basis
reasonably requested by Executive
(or his designated beneficiary or estate,
if Section 8(a) applies), in which
event, the payments will be discounted to
the extent the periodic basis selected by Executive (or his designated
beneficiary or estate, if Section
8(a) applies) results in an earlier payout
to Executive (or his designated beneficiary
or estate, if Section 8(a)
applies) than if Executive were
paid on a semi-monthly
basis. The
Company
shall be given credit for all life
or disability insurance proceeds paid to
Executive (or his designated beneficiary
or estate, if Section 8(a)
applies) on any policy procured, paid for or reimbursed by the Company
pursuant to this Agreement (up to
$2 million in the case of life insurance).
Upon the failure of the Executive to timely make an election as provided
herein, such option and
election shall revert
to the Company.
However, if
Section 8(a) applies and the
Executive's designated beneficiary or estate is
the beneficiary of one or more
insurance policies
purchased by the
Company
and then in effect the proceeds of
which are payable to that beneficiary by
reason of the Executive's
death, then (i) the
Company, at its
option, may
credit the amount of those
proceeds, as and when paid by the insurer to that
beneficiary, against the payment to which the Executive's designated
beneficiary or estate is entitled
pursuant to paragraph
(iv) of subsection
(a) of this Section 9 and, if it exercises that option, (ii) the payment
otherwise due pursuant
to that paragraph (iv) will bear interest on the
outstanding balance thereof from and including the fifth day after that
termination date to the date of
payment by the insurer
to that
beneficiary
at the rate of interest specified
in Section 31; and provided, further, that
if Section 9(b) applies and the
Executive is the
beneficiary of
disability
insurance purchased by the Company
and then in effect,
the Company, at
its
option, may credit the proceeds of
that insurance which
are payable to the
Executive, valued at their present
value as of that
termination date
using
the interest rate specified in
Section 31 and then in effect as the discount
rate, against the payment to which the Executive is entitled pursuant to
paragraph (iv) of subsection
(a) of this Section
9. Any payments to
which
the Executive (or his designated beneficiary
or estate,
if Section
8(a)
applies) is entitled pursuant to
paragraphs (ii) and (iii) of subsection (a)
or (b) of this Section 9, as
applicable, will be
paid in a single lump
sum
within five days after the
termination date of the Executive's Employment or
as soon thereafter as is
administratively
feasible, together with interest
accrued thereon from and including
the fifth day after that termination date
to the date of payment at the rate
of interest specified in Section 31.
(d) Except
as provided in Sections 14, 24 and this Section, the Company
will have no payment obligations
under this Agreement
to the Executive
(or
his designated beneficiary
or estate, if
Section 8(a)
applies) after
the
termination date of the
Executive's Employment.
10.
RESIGNATIONS.
Upon termination of Executive's employment with or without cause,
Executive shall resign as
an officer and
director of the
Company and will
thereafter refuse election as an
officer or director of the Company.
11.
RETURN OF
DOCUMENTS.
Upon
termination of Executive's employment with or without cause,
Executive shall immediately return
and deliver to the Company and shall not
retain any originals or copies of
any books, papers, price lists, customer
contracts, bids, customer lists,
files, notebooks or any other documents
containing any of the Confidential
information or otherwise relating to
Executive's performance of duties
under this Agreement.
Executive further
acknowledges and agrees that all
such documents are the Company's sole and
exclusive property.
12.
DEFINITION OF
TERMS.
The
following terms used in this Agreement when capitalized shall
have
the following meanings:
(a)
ACCRUED
SALARY.
"Accrued
Salary" shall mean the salary that has accrued, and the salary
that would accrue through and
including the last day
of the pay period
in
which the termination date of the Executive's Employment
occurs, under
Section 6(a), which has not been paid to the Executive as of that
termination date.
(b)
ACQUIRING
PERSON.
"Acquiring
Person" shall mean any
person who or which,
together with
all Affiliates and Associates of
such person, is or are the Beneficial Owner
of 50 percent or more of the shares of Common Stock then outstanding,
but
does not include any Exempt
Person; provided,
however, that a person
shall
not be or become an Acquiring Person if such person, together with its
Affiliates and Associates, shall
become the Beneficial
Owner of 50
percent
or more of the shares of Common
Stock then outstanding solely as a result of
a reduction in the number of
shares of Common Stock
outstanding due to
the
repurchase of Common Stock by the Company, unless and until such time as
such person or any Affiliate or
Associate of such
person shall purchase
or
otherwise become the Beneficial
Owner of additional
shares of Common
Stock
constituting 1% or more of the
then outstanding
shares of Common Stock
or
any other person (or persons) who is (or collectively are) the Beneficial
Owner of shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock
shall become an Affiliate or Associate of
such person, unless, in either such case, such person, together with all
Affiliates and Associates of such
person, is not then
the Beneficial
Owner
of 50% or more of the shares of
Common Stock then outstanding.
(c)
AFFILIATE.
"Affiliate" has the
meaning ascribed
to that term in Rule 405 of
Regulation C.
(d)
ASSOCIATE.
"Associate" shall
mean, with reference to any person, (i) any
corporation, firm, partnership,
association, unincorporated organization or
other entity (other than the Company or a subsidiary of the Company) of
which that person is an officer or general partner (or officer or
general
partner of a general partner) or
is, directly or indirectly, the Beneficial
Owner of 10% or more of any class
of its equity
securities, (ii) any
trust
or other estate in which that
person has a
substantial beneficial
interest
or for or of which that person
serves as trustee or
in a similar
fiduciary
capacity and (iii) any relative or
spouse of that person, or any relative of
that spouse, who has the same home
as that person.
(e)
BENEFICIAL
OWNER.
A
specified person shall be deemed the "Beneficial Owner" of, and
shall
be deemed to "beneficially own,"
any securities:
(i) of which that
person
or any of that person's Affiliates
or Associates, directly or indirectly, is
the "beneficial owner" (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise has the right to vote or dispose of, including pursuant to any
agreement, arrangement or understanding (whether or not in writing);
provided, however, that a person
shall not be deemed the "Beneficial Owner"
of, or to "beneficially own," any
security under this subparagraph (i) as a
result of an agreement,
arrangement or
understanding to vote that security
if that agreement, arrangement
or understanding: (A)
arises solely from
a
revocable proxy or consent given in response to a public (that is, not
including a solicitation exempted
by Exchange Act Rule 14a-2(b)(2)) proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the
Exchange Act; and (B) is not then reportable by
such person on Exchange Act Schedule 13D (or any comparable or successor
report); (ii) which that person or any of that person's Affiliates or
Associates, directly or
indirectly, has the
right or obligation to
acquire
(whether that right or obligation
is exercisable or effective immediately or
only after the passage of
time or the occurrence
of an event) pursuant
to
any agreement, arrangement or
understanding (whether
or not in writing)
or
on the exercise of conversion rights, exchange rights, other rights,
warrants or options, or
otherwise; provided,
however, that a person
shall
not be deemed the "Beneficial Owner" of, or to "beneficially own,"
securities tendered pursuant
to a tender or exchange offer made by that
person or any of that person's Affiliates or Associates until those
tendered securities are accepted
for purchase or
exchange; or (iii)
which
are beneficially owned, directly
or indirectly, by (A) any other person (or
any Affiliate or Associate
thereof) with which
the specified person or any
of the specified person's Affiliates or Associates has any agreement,
arrangement or understanding
(whether or not in writing) for the purpose of
acquiring, holding, voting (except
pursuant to a revocable proxy or consent
as described in the proviso to subparagraph (i) of this definition) or
disposing of any voting se
