Exhibit 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
This Separation
Agreement and General Release (referred to as the “Separation
Agreement”) is entered into by and between John I. Hill
(“Mr. Hill”) and Advance America, Cash Advance Centers,
Inc., its affiliates, subsidiaries, successors and assigns, and
their respective directors, officers, employees and agents
(collectively and individually, “the
Company”).
WHEREAS, Mr. Hill
is an employee of the Company in a Chief Financial Officer position
and has performed various other roles;
WHEREAS, Mr. Hill
was employed by the Company for nearly six (6) years;
and
WHEREAS, Mr. Hill
and the Company are concluding their employment relationship and
wish to enter into this Separation Agreement;
NOW THEREFORE, in
consideration of the mutual promises contained in this Separation
Agreement, the parties agree as follows:
1.
Voluntary Agreement . Mr. Hill agrees that the Company
is not required by law or otherwise to provide severance benefits,
but that the Company has, in consideration for the promises set
forth herein, voluntarily elected to provide certain benefits to
him under the terms of this Separation Agreement. Each party
hereto represents, declares and agrees that he or it voluntarily
accepts the provisions of this Separation Agreement for the
purposes of making a full and final compromise, adjustment and
settlement of all claims herein described.
2.
Severance Date and Resignation. The parties agree
that as of August 21, 2007 (the “Severance Date”), Mr.
Hill’s employment with the Company will cease. Mr. Hill
agrees that as of August 21, 2007 he has tendered, and the Company
has accepted, his resignation as to his position as Chief Financial
Officer of the Company and every other position as an employee,
officer, agent or trustee of each and every affiliated entity or
benefit plan.
3.
Consideration .
a.
Mr. Hill understands and agrees that in consideration for his
promises set forth herein, he will receive benefits under this
Separation Agreement to which he would not otherwise be
entitled. The parties agree that in consideration for Mr.
Hill’s promises set forth herein, the Company will pay to Mr.
Hill twelve months of his current base salary, consisting of three
hundred, sixty-two thousand dollars ($362,000), to be paid in equal
regular payroll installments beginning with the first payroll
period after the effective date of this Separation Agreement.
The Company will also pay to Mr. Hill a lump sum payment of
forty-two thousand, two hundred, thirty-three dollars ($42,233)
representing a pro-rated bonus for 2007, which amount shall be paid
when annual bonus payments for 2007 are regularly paid to the
Company’s other executives, but not later than March 1,
2008.
b.
Also, for a period of no more than twelve (12) months following the
Severance Date, in the event that Mr. Hill elects and is granted
COBRA continuation coverage
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under the
Company’s group health plan for medical coverage for Mr. Hill
and his dependents, the Company will pay that percentage of Mr.
Hill’s monthly premiums for such coverage as the Company has
been paying immediately prior to the Severance Date. Mr. Hill
shall be solely and exclusively responsible for paying the
remainder of such monthly premiums. Notwithstanding the
foregoing, in the event Mr. Hill obtains other employment whereby
he is eligible for reasonably equivalent medical benefits, the
Company shall not be required to continue to subsidize the group
health benefit coverage for Mr. Hill and his dependents under the
Company’s group health benefit plans. Mr. Hill agrees
to notify the Company in writing within ten (10) days of obtaining
employment whereby he is eligible to receive reasonably equivalent
medical benefits from his employer.
c.
The foregoing payments described in Sections 3(a) and (b) will be
subject to applicable federal, state and local taxes and other
deductions. In addition, the foregoing payments are subject
to and conditioned upon Mr. Hill’s compliance with the terms
and conditions of Section 6 of this Agreement.
d.
Mr. Hill further agrees that all benefits the Company provided him
in connection with his employment will terminate as of the
Severance Date, but that if Mr. Hill was, on the day immediately
preceding the Severance Date, covered under a medical plan
sponsored by the Company, the Company will provide him with a
Notice Under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) as it relates to the continuation of health and dental
insurance. Mr. Hill understands that his accrued and unused
vacation days, if any, will be addressed in accordance with the
Company’s vacation policy guidelines in effect as of the
Severance Date.
e.
Mr. Hill desires to receive the above-described severance benefits,
which are intended to provide an economic bridge during possible
unemployment and not as compensation for services previously
rendered. In addition, the parties desire to resolve any
existing or potential disputes or claims that Mr. Hill has or may
have with or against the Company. In consideration of the
aforementioned severance pay and benefits, Mr. Hill and the Company
agree as follows:
i.
Mr. Hill hereby waives, releases and completely discharges the
Company from any and all claims, demands, rights, liabilities and
causes of action of every kind and description whatsoever, whether
known or unknown, that are asserted or could have been asserted
against the Company arising out of Mr. Hill’s employment with
the Company or the termination thereof. This includes but is
not limited to claims of wrongful discharge, breach of contract,
breach of an implied covenant of good faith and fair dealing,
fraud, misrepresentation, defamation, personal injury, negligent or
intentional infliction of emotional harm or distress, conspiracy to
terminate wrongfully, loss of consortium, invasion of privacy,
wrongful denial of severance pay, failure to pay earned wages,
failure to comply with state or federal laws governing payment of
overtime, and/or discrimination or harassment based on race, color,
national origin, sex, religion, age, disability, veteran’s
status and/or retaliation. This waiver, release and discharge
also includes but is not limited to claims under the Age
Discrimination in Employment Act of 1967 (and as amended in 1978
and 1986), the Civil Rights Act of 1991, the Civil Rights Act of
1866 and 1871, the Civil Rights Act of 1964, including the Equal
Employment Act of 1972, the Equal Pay Act of 1963, the Americans
with Disabilities Act of
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1990, the Employee
Retirement Income Security Act of 1974, the Worker Adjustment and
Retraining Notification Act, the Family and Medical Leave Act of
1993, and any other state, local or federal laws or
regulations. For the avoidance of doubt, nothing contained in
this waiver, release and discharge limits or impairs the
indemnification obligations set forth in Section 7
hereinbelow. Nothing in this Separation Agreement limits Mr.
Hill’s right to challenge the validity of this Separation
Agreement in a legal proceeding under the Older Workers Benefit
Protection Act with respect to claims under the Age Discrimination
in Employment Act.
ii.
Mr. Hill agrees that he may not obtain relief if any claim or
charge of discrimination is brought by him or some other person or
agency on his behalf and he agrees that he will not maintain any
claim or action in any local, state or federal court against the
Company relating to his employment and/or termination of
employment. Mr. Hill understands that he is not waiving or
releasing any claims that may arise after this Separation Agreement
is executed, or any claims related to worker’s compensation
or unemployment compensation. Mr. Hill agrees that he will
not in the future seek, and will not be eligible for, reemployment
or independent contractor status by the Company, and he
acknowledges and agrees that the Company has no obligation to
reinstate him or to employ him in the future.
iii.
The Company represents and warrants that it currently has no
knowledge of any claim, demand, right or cause of action
(collectively, a “Claim”) against and/or involving Mr.
Hill. The Company further represents and warrants that it has
no present intention to make or file a lawsuit against Mr.
Hill.
iv.
Mr. Hill represents and warrants that he has no knowledge of any
claim, demand, right or cause of action or other claim against
and/or involving the Company.
4.
Restricted Stock. Pursuant to the Restricted
Stock Agreements by and between the Company and John I. Hill dated
December 21, 2004 and January 31, 2006, the Company granted to Mr.
Hill a total of 166,666 restricted shares of common stock of the
Company, par value $.01 per share (“Restricted Stock”),
subject to all of the terms and conditions of the Company’s
2004 Omnibus Stock Plan (the “Stock Plan”) and the
respective Restricted Stock Agreements. The Company and Mr.
Hill acknowledge and agree that a total of 56,944 shares of the
Restricted Stock have become Vested Shares as of August 20, the day
before the Severance Date. The Company and Mr. Hill agree
that the Restricted Stock granted to Mr. Hill shall be treated
according to the terms of the Stock Plan and the Restricted Stock
Agreements.
5.
Stock Options . Pursuant to the Non-Qualified Stock
Option Agreement by and between the Company and John I.
Hill
