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Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
“Agreement”), originally effective as of August 29,
2002 (the “Effective Date”), and amended and restated
as of October 16, 2005, is amended and restated again effective as
of December 23, 2008, by and between CompuCredit Corporation, a
Georgia corporation (“CompuCredit”), and J.Paul
Whitehead III, an individual resident of the State of Georgia
(“Employee”). This Agreement amends,
restates and supersedes the employment agreement between the
Company and the Employee effective as of the Effective Date and
amended and restated effective as of October 16, 2005 (the
“Previous Employment Agreement”).
WITNESSETH:
WHEREAS, in consideration of, among other things,
CompuCredit’s reappointment of Employee to the position of
Chief Financial Officer, Employee agreed to devote his full working
time to the business efforts of CompuCredit; and WHEREAS,
the parties amended and restated the employment agreement,
effective as of August 29, 2002, in its entirety into the Previous
Employment Agreement to set forth the terms and conditions of
Employee’s continued employment with CompuCredit, effective
as of October 16, 2005; and WHEREAS, CompuCredit and the
Employee now desire to amend and restate the Previous Employment
Agreement to reflect the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended, and the final regulations issued
thereunder. NOW, THEREFORE, for and in consideration of the
Employee’s 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 as follows:
1. Relationship
Re-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 direct and manage the financial affairs of
CompuCredit and shall have such other executive level powers and
duties as shall be otherwise conferred on him by
CompuCredit’s Board of Directors or Chief Executive Officer
consistent with those generally associated with that position
(collectively, the “Services”). Employee
shall perform the Services at the direction of CompuCredit’s
Chief Executive Officer. Employee hereby agrees to
devote 100% of his business time, attention, energy and skill
exclusively to performing his obligations and duties hereunder and
to engage in no business activities other than the performance of
his obligations and duties hereunder, except for those specific
activities as the Chief Executive Officer or Board of Directors of
CompuCredit shall approve in advance in writing; provided, however,
that nothing herein contained shall restrict or prevent Employee
from personally and for his own account owning and dealing in
stocks, bonds, securities, real estate, commodities, or other
investment properties for his own benefit or the benefit of his
family. Further, nothing herein contained shall restrict
or prevent Employee from serving on the Board of Directors of a
non-profit entity or any entity that the Chief Executive Officer
approves of in writing. Employee shall perform his
obligations and duties hereunder diligently, faithfully and to the
best of his abilities and, in doing so, 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 automatically month by month upon the terms and conditions
contained herein until terminated in accordance with Section
2.2. The period of time Employee is employed by
CompuCredit 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.
(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 members of CompuCredit’s Board of
Directors that:
(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 in a material way with any of the
terms of Section 1 or Section 9 hereof;
(ii) Employee
has breached or defaulted in the performance of any other 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; 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) In
addition to any other rights or remedies available to Employee,
Employee may, in his sole discretion, terminate Employee’s
employment for Good Reason effective immediately upon delivery of
written notice to CompuCredit. In this Agreement,
“Good Reason” shall mean the occurrence of any one of
the following events:
(i) The
nature, extent and amount of coverage under CompuCredit’s
Directors and Officers, Errors and Omissions insurance policy
decreases to a level that is below what would be reasonable and
customary (other than due to the actions of Employee), provided
however, that such coverage shall not be below a minimum threshold
of $25,000,000;
(ii) Employee’s
status or role within CompuCredit is demoted in any of the
following ways:
(A) Employee
no longer maintains the title of Chief Financial Officer of
CompuCredit;
(B) Employee
retains the title of Chief Financial Officer but is not held out by
CompuCredit either internally and/or externally as the principal or
chief financial officer of CompuCredit responsible for the
financial matters of CompuCredit;
(C) a
material diminution in the scope and nature of Employee’s
duties and responsibilities or the assignment of duties and
responsibilities inconsistent with those generally associated with
the chief financial officer position;
(D) Employee
no longer reports directly to the Chief Executive Officer of
CompuCredit;
(E) a
material reduction by CompuCredit of Employee’s base annual
salary, incentive compensation or a material reduction of
Employee’s benefits (taken as a whole) as in effect
immediately prior to such reduction; or (F) A material
diminution in the authority, duties, or responsibilities of the
supervisor to whom the Employee is required to report.
(iii) CompuCredit’s
requirement that Employee be based anywhere other than Metropolitan
Atlanta, Georgia. CompuCredit shall be deemed to have
required Employee to be based somewhere other than Metropolitan
Atlanta, Georgia if the Employee is required to spend more than two
days per week on a regular basis at a business location not within
the Atlanta, Georgia metropolitan area.
(iv) the
failure of a successor of CompuCredit to assume in writing this
Agreement contemporaneously to becoming a successor of CompuCredit;
or
(v) CompuCredit
has breached or defaulted in the performance of any material
provision of this Agreement and has not cured such breach or
default to Employee’s reasonable satisfaction within thirty
(30) days after receiving notice thereof.
(e) The
date on which Employee’s employment expires or terminates for
any reason is referred to herein as the “Termination
Date.”
3. 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 bi-weekly 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 increased but not
decreased. CompuCredit shall review Employee’s
compensation hereunder at least on an annual basis.
(b) Notwithstanding
anything to the contrary herein, if this Agreement is terminated by
CompuCredit for Cause or by Employee without Good Reason (except in
the case of death or Complete Disability of Employee), CompuCredit
shall be released of its obligation to pay further compensation or
benefits to Employee as set forth in this Agreement and any
restricted stock grants and options which have not vested shall not
become vested; provided, however, subject to Section 21 below, that
Employee shall be entitled to receive (i) any salary already earned
under Section 3(a) as set forth 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 six (6) months within thirty (30) days
of the Termination Date; provided, further, that in the case of a
termination of employment by Employee without Good Reason (except
in the case of death or Complete Disability of Employee), Employee
shall have the earlier of (i) two (2) months after the Termination
Date or (ii) the original expiration date of the options
(disregarding any earlier expiration based on termination of
Employee’s employment) to exercise any then vested stock
options held by Employee.
(d) If
this Agreement terminates as a result of the Complete Disability of
Employee, CompuCredit shall be released of its obligation to pay
further compensation or benefits to Employee as set forth in this
Agreement and any restricted stock grants or options which have not
vested as of the Termination Date shall not become vested;
provided, however, that Employee shall be deemed to be One Hundred
Percent (100%) vested in all restricted stock, provided, further,
subject to Section 21 below, that Employee shall be entitled to
receive (i) his salary under Section 3(a) above for a period of
three (3) months payable in substantially equal bi-weekly
installments or in such other installments or other intervals as
may be the policy of CompuCredit on the Termination Date, but no
less frequently than monthly, as set forth above, (ii) a portion of
any previously agreed upon bonus (pro rated based upon full months
worked by Employee) for any fiscal year in which Employee worked
for CompuCredit for at least six (6) months within thirty (30) days
of the Termination Date; and (iii) the ability to exercise any then
vested options held by Employee until the earlier of (i) six (6)
months after the Termination Date or (ii) the original expiration
date of the options (disregarding any earlier expiration based on
termination of Employee’s employment).
(e) If
this Agreement terminates as a result of the death of Employee,
CompuCredit shall be released of its obligation to pay further
compensation or benefits to Employee as set forth in this Agreement
and any restricted stock grants or options which have not vested
shall not become vested; provided, however, that Employee shall be
deemed to be One Hundred Percent (100%) vested in all restricted
stock, provided, further, subject to Section 21 below, that
Employee (or his estate, as applicable) shall be entitled to
receive (i) any salary already earned under Section 3(a) above as
set forth above, (ii) a portion of any previously agreed upon bonus
(pro rated based upon full months worked by Employee) for any
fiscal year in which Employee worked for CompuCredit for at least
six (6) months within thirty (30) days of the Termination Date; and
(iii) the ability to exercise any then vested options held by
Employee until the earlier of (i) six (6) months after the
Termination Date or (ii) the original expiration date (disregarding
any earlier expiration based on termination of Employee’s
employment).
(f) Notwithstanding
anything to the contrary herein, if CompuCredit terminates this
Agreement or Employee’s employment for any reason other than
for Cause or if Employee terminates this Agreement or resigns for
Good Reason, subje
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