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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, originally effective as
of March 15, 2001, is amended and restated on December 23, 2008, by
and between COMPUCREDIT CORPORATION, a Georgia corporation
(“CompuCredit”), and DAVID G. HANNA, an individual
resident of the State of Georgia
(“Employee”). This Agreement amends,
restates and supersedes the employment agreement between the
Company and the Employee that became effective as of the Effective
Date (the “Previous Employment Agreement”). W I
T N E S S E T H: WHEREAS, the parties hereto desired to
enter into a written agreement for the employment of Employee by
CompuCredit on the terms and conditions hereinafter stated which
supersedes any and all written or oral arrangements between the
parties concerning the subject matter hereof, including, without
limitation, that certain employment agreement between CompuCredit
and Employee dated as of January 1, 1999, as amended from time to
time; and
WHEREAS, the Company and the Employee entered into the Previous
Employment Agreement, effective as of March 15, 2001; and
WHEREAS, the Company and the Employee now desire to amend and
restate the Previous Employment Agreement to reflect the provisions
of Section 409A of the Code and the final regulations issued
thereunder. NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants and agreements contained herein,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, CompuCredit and
Employee agree as follows:
1. RELATIONSHIP
ESTABLISHED. Upon the terms and subject to the
conditions of this Agreement, CompuCredit hereby employs Employee
to perform services (the “Services”) for CompuCredit as
its Chief Executive Officer and as delegated to him from time to
time by the Board of Directors of CompuCredit consistent with those
generally associated with that position. Employee hereby
agrees to devote substantially all of his business efforts toward
performing the Services, which efforts shall constitute not less
than a minimum average of forty (40) hours per week. In
his performance of the Services, Employee shall comply with
applicable CompuCredit policies and procedures. If there
is any conflict between such policies and procedures and this
Agreement, this Agreement shall control.
2. TERM;
TERMINATION.
2.1 TERM
OF EMPLOYMENT. The term of Employee's employment under
this Agreement shall commence on the date hereof and shall continue
indefinitely on an at will basis, subject to termination at any
time by either party on not less than thirty (30) days prior
written notice by either party, or as otherwise provided pursuant
to Section 2.2 of this Agreement. The period of time
Employee is employed by CompuCredit shall be referred to as the
“Term.”
2.2 TERMINATION
OF EMPLOYMENT.
(a) This
Agreement shall automatically and immediately terminate upon the
death of Employee; or
(b) Either
party may terminate this Agreement upon the Complete Disability of
Employee. "Complete Disability", as used herein, shall mean the
inability of Employee by reason of any physical or mental
impairment to perform fully and effectively, as determined in the
reasonable judgment of a competent physician selected in good faith
by CompuCredit, the Services on a full time basis for an aggregate
of 90 days in any period of 180 consecutive days.
(c) In
addition to any other rights or remedies available to CompuCredit,
CompuCredit may, in its sole discretion, terminate this Agreement
for Cause effective immediately upon delivery of written notice to
Employee. In this Agreement, “Cause” means
the reasonable, good faith determination of a majority of the Board
of Directors of CompuCredit that:
(i) (A)
Employee has committed an act constituting fraud, moral turpitude,
deceit or intentional material misrepresentation with respect to
CompuCredit or any client, customer or supplier of CompuCredit; (B)
Employee has embezzled funds or assets from CompuCredit or any
client, customer or supplier of CompuCredit; or (C) Employee has
engaged in willful misconduct or gross negligence in the
performance of the Services;
(ii) Employee
has breached or defaulted in the performance of any material
provision of this Agreement and has not cured such breach or
default to CompuCredit's reasonable satisfaction within thirty (30)
days after receiving notice thereof (provided that any breach by
Employee of any obligation under Section 9 will be grounds for
immediate termination for “Cause” without any notice or
right to cure); or
(iii) Employee's
conduct is materially detrimental to the reputation of CompuCredit
which Employee has not cured (if such conduct is curable in
CompuCredit's reasonable opinion) to CompuCredit's reasonable
satisfaction within ten (10) days after receiving notice thereof.
(d) The
date on which this Agreement expires or terminates for any reason
is referred to herein as the “Termination Date.”
(e) Employee
may terminate this Agreement following a Change of Control (as
defined below), by providing CompuCredit at least thirty (30) days
prior written notice of termination. For purposes of
this Agreement, “Change of Control” shall mean the
acquisition by any single person or entity or related persons or
entities of either substantially all the assets of CompuCredit or
more than fifty percent (50%) of the outstanding and issued common
stock of CompuCredit.
3. COMPENSATION.
(a) During
the Term, CompuCredit shall pay Employee as compensation for the
Services an annual salary equal to $50,000. Such
compensation shall be payable in substantially equal semi-monthly
installments or in such other installments or at such other
intervals as may be the policy of CompuCredit from time to time,
but no less frequently than monthly, and shall be subject to such
deductions and withholdings as are required by law or policies of
CompuCredit in effect from time to time. Employee's
salary per annum may from time to time be adjusted as agreed in
writing by both CompuCredit and Employee.
(b) Notwithstanding
anything to the contrary herein, if this Agreement is terminated
for any of the reasons set forth in Section 2 hereof, CompuCredit
shall be released of its obligation to pay further compensation or
benefits to Employee as set forth in this Agreement except for
salary already earned under Section 3(a) hereof and payable as set
forth therein, and Employee will not be entitled to any severance
or other benefits upon any termination of his employment hereunder.
4. VACATION. During
the Term of this Agreement, Employee shall be entitled to such
number of weeks of paid vacation in each calendar year of the Term
as is provided in, and in accordance with, CompuCredit's policies
in effect from time to time for management employees.
5. BENEFITS. During
the Term of this Agreement, Employee shall be entitled to
participate in executive employee benefit plans generally provided
by CompuCredit to its executives, but only if and to the extent
provided from time to time in such executive benefits plans and for
so long as CompuCredit provides or offers such benefit plans.
6. REIMBURSEMENT
FOR EXPENSES. CompuCredit shall reimburse Employee for
reasonable out-of-pocket expenses incurred by Employee in
connection with the performance of the Services hereunder for
travel, entertainment and other miscellaneous expenses to the
extent such expenses are consistent with CompuCredit's
reimbursement policy as the same shall be in effect from time to
time. Reimbursement shall be made only against an
itemized list of such expenses submitted to CompuCredit by Employee
within thirty (30) days after being incurred, and, to the extent
requested by CompuCredit, receipts and invoices evidencing such
expenses. In no event shall any such reimbursement be
made later than thirty (30) days after the period for submitting
such itemized list expires.
7. CONFIDENTIALITY.
(a) PROPRIETARY
INFORMATION. Employee acknowledges that as an employee
of CompuCredit, he may from time to time have access to and be
provided with trade secrets (as defined under applicable law), and
other confidential, secret and proprietary information including
without limitation, financial statements or information, technical
or nontechnical data, formulae, compilations, programs, methods,
data, financial plans, models, product plans, marketing or sales
strategies, portfolio information, or lists of actual or potential
borrowers, loan program participants or other customers not
generally available to the public concerning any aspect of the
products, services or businesses of CompuCredit, its affiliates, or
its and their officers, directors, employees, advisers, agents or
other personnel (collectively, “Proprietary
Information”). Employee agrees that he will not,
directly or indirectly, disclose, publish, disseminate or use any
Proprietary Information except as authorized
herein. Employee may use Proprietary Information to
perform the Services but in doing so will only allow dissemination
of Proprietary Information to any individual, corporation,
partnership, limited liability company, joint venture, association,
joint stock company, government agency, trust, trustee, entity,
unincorporated organization or any other entity on a strict
need-to-know basis (provided such persons are first informed of the
confidential nature of such Proprietary Information and directed to
use or disclose it only as permitted herein). If
disclosure of any Proprietary Information is required by law, a
court or agency of the government, then Employee may make such
disclosure after providing CompuCredit with reasonable notice, to
the extent that providing such notice to CompuCredit is legally
permissible, so that CompuCredit may seek protective relief.
(b) NON-PROPRIETARY
INFORMATION. Notwithstanding the provisions of Section
7(a) above, the following shall not be considered to be Proprietary
Information: (i) any information that was in the public domain
through no fault or act of Employee prior to the disclosure thereof
to Employee; (ii) any information that comes into the public domain
through no fault or act of Employee; (iii) any information that is
disclos
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