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Exhibit 10.4
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT,
originally effective as of January 1, 1999 and amended by the First
Amendment to Employment Agreement dated as of December 31, 1999,
(collectively the "Previous Employment Agreement"), is amended and
restated effective as of December 23, 2008, by and between
COMPUCREDIT CORPORATION, a Georgia corporation ("CompuCredit"), and
RICHARD R. HOUSE, JR., an individual resident of the State of
Georgia ("Employee"). This Agreement amends, restates
and supersedes the Previous Employment Agreement. W I T N E
S S E T H: WHEREAS, the parties hereto entered into that
certain employment agreement, effective as of January 1, 1999,
providing for the employment of Employee by CompuCredit on the
terms and conditions therein; and WHEREAS, the parties
amended that certain employment agreement by the First Amendment to
Employment Agreement, effective as of December 31, 1999; and
WHEREAS, in consideration of, among other things, CompuCredit's
promotion of Employee to President, increasing Employee's
compensation and granting Employee additional stock options,
Employee agreed to devote 100% of his business efforts to
CompuCredit; 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 Internal Revenue Code
of 1986, as amended, and the final regulations issued thereunder.
NOW, THEREFORE, for and in consideration of the Employee's
continued 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 to
amend and restate the Original Agreement as follows and hereby
intend that the parties' respective rights, duties and obligations
with respect to Employee's employment with CompuCredit shall
hereinafter be set forth below:
1.0 RELATIONSHIP
ESTABLISHED. Upon the terms and subject to the
conditions of this Agreement, CompuCredit hereby employs Employee
to serve as the President of CompuCredit, and, as such, Employee
shall perform the executive level services (the "Services") for
CompuCredit as delegated to him from time to time by CompuCredit's
Chief Executive Officer (or his designee). 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 CEO of CompuCredit shall approve
in advance 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. During the "Term" (as defined
below) Employee shall not, directly or indirectly, make any
advance, loan, extension of credit or capital contribution to, or
purchase any stocks, bonds or other securities of, or make any
investment in, any individual, partnership, corporation, limited
liability company, trust, trustee, joint stock company,
unincorporated organization, joint venture, association,
governmental authority or other entity (each, an "Entity") other
than CompuCredit without the prior written consent of the CEO of
CompuCredit; PROVIDED, HOWEVER, that Employee shall be permitted to
have a direct or indirect equity ownership of no greater than 2% of
the equity of an Entity listed on a major U.S. exchange or traded
on a NASDAQ over-the-counter market.
2.0 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 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 Board of
Directors of CompuCredit 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 with any of the terms of Section 1 or Section
9 hereof;
(ii) Employee
has breached or defaulted in the performance of any other 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) The date on which Employee's employment expires or
terminates for any reason is referred to herein as the "Termination
Date."
3.0 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 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) Prior to the
commencement of each fiscal year or within three (3) months
following the commencement of each such fiscal year, Employee and
CompuCredit shall in good faith mutually establish bonus amounts
and targets for Employee for such fiscal year. Subject to Section
3(d) below, any bonus earned by Employee shall be prorated for any
partial fiscal year worked by Employee. Any bonus
payments due hereunder shall be payable to the Employee no later
than 2 ½ months after the end of the calendar year in which
Employee becomes vested in such bonus for purposes of Section 409A
of the Internal Revenue Code. (c) 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; PROVIDED,
HOWEVER, subject to Section 20.0 below, that Employee shall be
entitled to receive (i) any salary already earned under Section
3(a) above as set forth therein, 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 6 months within thirty (30) days of
the Termination Date. Employee will not be entitled to
any severance or other benefits upon any termination of his
employment hereunder.
4.0 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.
5.0 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.
6.0 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.
7.0 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, po
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