|
Exhibit 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
originally effective as of March 15, 2001 (the “Effective
Date”), is amended and restated on December 23, 2008, by and
between COMPUCREDIT CORPORATION, a Georgia corporation
("CompuCredit"), and RICHARD W. GILBERT, an individual resident of
the State of Georgia ("Employee"). This Agreement
amends, restates and supersedes the employment agreement between
CompuCredit 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 desired to enter into a written agreement for
the employment of Employee by CompuCredit on the terms and
conditions hereinafter stated which superseded any and all written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,
CompuCredit and the Employee entered into the Previous Employment
Agreement, effective as of March 15, 2001; 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 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
Operating Officer and as delegated to him from time to time by the
Chief Executive Officer of CompuCredit, or his designee, 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 $175,000. 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 payable at the
normal times set forth above) and Employee will not be entitled to
any severance or other benefits upon any termination of his
employment hereunder.
4. VACATION. During
the Term, 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, 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,
|
