Cash America International,
Inc.
Executive Change-in-Control Severance Agreement
THIS EXECUTIVE
CHANGE-IN-CONTROL SEVERANCE AGREEMENT is made, entered into, and is
effective this 23 rd day of October, 2008 (hereinafter referred to as
the “Effective Date”), by and between Cash America
International, Inc. (the “Company”), a Texas
corporation, and Timothy S. Ho
(“Executive”).
WHEREAS, the
Executive is currently employed by the Company as its President
– Internet Services Division; and
WHEREAS, the
Executive possesses considerable experience and knowledge of the
business and affairs of the Company concerning its policies,
methods, personnel, and operations; and
WHEREAS, the
Company is desirous of assuring insofar as possible, that it will
continue to have the benefit of the Executive’s services; and
the Executive is desirous of having such assurances; and
WHEREAS, the
Company recognizes that circumstances may arise in which a Change
in Control of the Company occurs, through acquisition or otherwise,
thereby causing uncertainty of employment without regard to the
Executive’s competence or past contributions. Such
uncertainty may result in the loss of the valuable services of the
Executive to the detriment of the Company and its shareholders;
and
WHEREAS, both the
Company and the Executive are desirous that any proposal for a
Change in Control or acquisition will be considered by the
Executive objectively and with reference only to the business
interests of the Company and its shareholders; and
WHEREAS, the
Executive will be in a better position to consider the
Company’s best interests if the Executive is afforded
reasonable security, as provided in this Agreement, against altered
conditions of employment which could result from any such Change in
Control or acquisition.
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements of the parties set forth in this Agreement, and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
Wherever used in
this Agreement, the following terms shall have the meanings set
forth below and, when the meaning is intended, the initial letter
of the word is capitalized:
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(a)
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“ Agreement ”
means this Executive Change-in-Control Severance
Agreement.
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(b)
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“ Base Salary ”
means, at any time, the then regular annual rate of pay which the
Executive is receiving as annual salary, excluding amounts:
(i) received under short-term or long-term incentive or other
bonus plans, regardless of whether or not the amounts are deferred,
or (ii) designated by the Company as payment toward
reimbursement of expenses.
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(c)
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“ Beneficial Owner
” shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
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(d)
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“ Board ” means
the Board of Directors of the Company.
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(e)
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“ Cause ” shall
be determined solely by the Committee in the exercise of good faith
and reasonable judgment, and shall mean the occurrence of any one
or more of the following:
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(i)
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The
Executive’s willful and continued failure to substantially
perform his duties with the Company (other than any such failure
resulting from the Executive’s Disability), after a written
demand for substantial performance is delivered to the Executive
that specifically identifies the manner in which the Committee
believes that the Executive has not substantially performed his
duties, and the Executive has failed to remedy the situation within
fifteen (15) business days of such written notice from the
Company; or
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(ii)
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The
Executive’s conviction of a felony; or
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(iii)
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The
Executive’s willful engaging in conduct that is demonstrably
and materially injurious to the Company, monetarily or otherwise.
However, no act or failure to act on the Executive’s part
shall be deemed “willful” unless done, or omitted to be
done, by the Executive not in good faith and without reasonable
belief that the action or omission was in the best interests of the
Company.
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(f)
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“ Change in Control
” of the Company shall mean the occurrence of any one
(1) or more of the following events:
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(i)
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Any
Person (other than the Company, any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, and
any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or such proportionately owned
corporation), is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the
Company’s then outstanding securities;
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(ii)
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During any period of not more than
twenty-four (24) consecutive months, individuals who at the
beginning of such period constitute the Board of Directors of the
Company, and any new director whose election by the Board or
nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds (2/3) of the directors
then still in office who either were
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directors at the beginning of the
period or whose election or nomination for election was previously
so approved, cease for any reason to constitute at least a majority
thereof;
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(iii)
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The
consummation of a merger or consolidation of the Company with any
other corporation, other than: (i) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than sixty percent (60%)
of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation; or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than thirty percent
(30%) of the combined voting power of the Company’s then
outstanding securities;
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(iv)
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The
Company’s stockholders approve a plan of complete liquidation
or dissolution of the Company, or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets (or any transaction having a similar
effect); or
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(v)
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Any
other transaction that the Board of Directors of the Company
designates as being a Change in Control.
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(g)
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“ Code ” means
the Internal Revenue Code of 1986, as amended.
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(h)
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“ Committee ”
means the Management Development and Compensation Committee of the
Board of Directors of the Company, or, if no Management Development
and Compensation Committee exists, then the full Board of Directors
of the Company, or a committee of Board members, as appointed by
the full Board to administer this Agreement.
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(i)
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“ Company ” means
Cash America International, Inc., a Texas corporation (including
any and all subsidiaries), or any successor thereto as provided in
Article 8 herein.
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(j)
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“ Disability ”
shall have the meaning ascribed to such term in the
Executive’s governing long-term disability plan, or if no
such plan exists, at the discretion of the Board.
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(k)
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“ Effective Date
” means the date this Agreement is approved by the Board or
the Committee, or such other date as the Board or Committee shall
designate in its resolution approving this Agreement, and as
specified in the opening sentence of this Agreement.
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(l)
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“ Effective Date of
Termination ” means the date on which a Qualifying
Termination occurs, as provided in Section 2.2 herein, which
triggers the payment of Severance Benefits hereunder.
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(m)
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“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
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(n)
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“ Good Reason ”
means, without the Executive’s express written consent, the
occurrence after a Change in Control of the Company of any one
(1) or more of the following:
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(i)
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The
assignment of the Executive to duties materially inconsistent with
the Executive’s authorities, duties, responsibilities, and
status (including offices, titles, and reporting requirements) as
an executive and/or officer of the Company, or a material reduction
or alteration in the nature or status of the Executive’s
authorities, duties, or responsibilities from those in effect as of
ninety (90) calendar days prior to the Change in Control,
other than an insubstantial and inadvertent act that is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
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(ii)
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The
Company’s requiring the Executive to be based at a location
in excess of thirty-five (35) miles from the location of the
Executive’s principal job location or office immediately
prior to the Change in Control; except for required travel on the
Company’s business to an extent substantially consistent with
the Executive’s then present business travel
obligations;
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(iii)
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A
reduction by the Company of the Executive’s Base Salary in
effect on the Effective Date hereof, or as the same shall be
increased from time to time;
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(iv)
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The
failure of the Company to continue in effect any of the
Company’s short- and long-term incentive compensation plans,
or employee benefit or retirement plans, policies, practices, or
other compensation arrangements in which the Executive participates
unless such failure to continue the plan, policy, practice, or
arrangement pertains to all plan participants generally; or the
failure by the Company to continue the Executive’s
participation therein on substantially the same basis, both in
terms of the amount of benefits provided and the level of the
Executive’s participation relative to other participants, as
existed immediately prior to the Change in Control of the
Company;
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(v)
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The
failure of the Company to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform the
Company’s obligations under this Agreement, as contemplated
in Article 8 herein; and
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(vi)
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A
material breach of this Agreement by the Company which is not
remedied by the Company within ten (10) business days of
receipt of written notice of such breach delivered by the Executive
to the Company.
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The
Executive’s right to terminate employment for Good Reason
shall not be affected by the Executive’s incapacity due to
physical or mental illness. The Executive’s continued
employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstance constituting Good Reason
herein.
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(o)
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“ Person ” shall
have the meaning ascribed to such term in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a “group” as defined in
Section 13(d).
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(p)
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“ Qualifying
Termination ” means any of the events described in
Section 2.2 herein, the occurrence of which triggers the
payment of Severance Benefits hereunder.
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(q)
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“ SERP ” means
the Cash America International, Inc. Supplemental Executive
Retirement Plan, as amended from time to time.
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(r)
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“ Severance Benefits
” mean the payment of severance compensation as provided in
Section 2.3 herein.
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Article 2. Severance
Benefits
2.1 Right to
Severance Benefits . The Executive shall be entitled to receive
from the Company Severance Benefits as described in
Section 2.3 herein, if there has been a Change in Control of
the Company and if, within twenty-four (24) calendar months
thereafter, the Executive’s employment with the Company shall
end for any reason specified in Section 2.2 herein as being a
Qualifying Termination.
The Executive
shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends
due to death, Disability, voluntary normal retirement (as defined
under the then established rules of the Company’s
tax-qualified retirement plan), or due to a voluntary termination
of employment for reasons other than as specified in
Section 2.2(b) herein.
2.2 Qualifying
Termination . The occurrence of any one of the following events
within twenty-fo
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