0001193125-13-032833.txt : 20130131 0001193125-13-032833.hdr.sgml : 20130131 20130131172454 ACCESSION NUMBER: 0001193125-13-032833 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20130129 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130131 DATE AS OF CHANGE: 20130131 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CASH AMERICA INTERNATIONAL INC CENTRAL INDEX KEY: 0000807884 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS RETAIL [5900] IRS NUMBER: 752018239 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09733 FILM NUMBER: 13563814 BUSINESS ADDRESS: STREET 1: 1600 W 7TH ST CITY: FT WORTH STATE: TX ZIP: 76102 BUSINESS PHONE: 8173351100 MAIL ADDRESS: STREET 1: 1600 WEST 7TH STREET CITY: FORT WORTH STATE: TX ZIP: 76102 FORMER COMPANY: FORMER CONFORMED NAME: CASH AMERICA INVESTMENTS INC /TX/ DATE OF NAME CHANGE: 19920520 8-K 1 d476608d8k.htm FORM 8-K Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): January 29, 2013

 

 

CASH AMERICA INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Texas   1-9733   75-2018239

(State of

incorporation)

 

(Commission

File No.)

 

(IRS Employer

Identification No.)

 

1600 West 7th Street  
Fort Worth, Texas   76102
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (817) 335-1100

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

On January 29, 2013, Cash America International, Inc. (“Cash America”) announced the appointment of David A. Fisher as Chief Executive Officer of Enova International, Inc. (“Enova”), the wholly-owned subsidiary of Cash America that operates its e-commerce segment (which Cash America also refers to as its E-Commerce Division). Mr. Fisher will succeed Timothy S. Ho as the head of Enova. Mr. Ho has agreed to step down as Enova’s President, and on January 29, 2013, he entered into a continued employment and separation agreement with Cash America that sets forth the terms of his continued employment and his separation, which will occur on March 29, 2013 following a brief transition period to assist Mr. Fisher in his assumption of the leadership of Enova. Cash America’s press release announcing Mr. Fisher’s appointment and Mr. Ho’s separation is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

David A. Fisher, 43, was appointed Chief Executive Officer on January 29, 2013. Prior to joining Enova, Mr. Fisher was Chief Executive Officer of optionsXpress Holdings, Inc. (“optionsXpress”), an online broker providing products and services for investor education, strategy evaluation and trade execution that was formerly listed on the Nasdaq Global Select Market, from October 2007 until The Charles Schwab Corporation acquired the business in September 2011. Following the acquisition, Mr. Fisher served as President of optionsXpress until March 2012. Mr. Fisher also served as the President of optionsXpress from March 2007 to October 2007 and as the Chief Financial Officer of optionsXpress from August 2004 to March 2007. Prior to joining optionsXpress, Mr. Fisher served as Chief Financial Officer of Potbelly Sandwich Works from February 2001 to July 2004, and before that in the roles of Chief Financial Officer and General Counsel for Prism Financial Corporation. In addition, Mr. Fisher has served on the Board of Directors of InnerWorkings, Inc. (NASDAQ: INWK), a leading provider of global print management and promotional solutions to corporate clients with operations in 44 countries, since November 2011 and has served on the Board of Directors of GrubHub, Inc., a venture-backed company that provides mobile applications to enable consumers to order restaurant meals for delivery, since May 2012. Mr. Fisher also served on the Board of Directors of CBOE Holdings, Inc. (NASDAQ: CBOE), the holding company for the Chicago Board Options Exchange, from January 2007 until October 2011. Mr. Fisher received a bachelor’s degree in finance from the University of Illinois at Champaign and a law degree from Northwestern University School of Law.

The following summaries are qualified in their entirety by reference to the Letter Agreement, the RSU Agreement, the CIC Agreement and the Continued Employment and Separation Agreement (each of which as defined below), copies of each of which are attached hereto and incorporated herein by reference as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively.

Letter Agreement: In connection with Mr. Fisher’s appointment as Chief Executive Officer of Enova, Cash America has entered into a letter agreement detailing Mr. Fisher’s employment and compensation package (the “Letter Agreement”). In connection with his employment, Mr. Fisher will receive an annual base salary of $525,000, and he will be eligible to participate in or receive awards under, as applicable, Enova’s short-and long-term incentive plans.


Mr. Fisher will also be eligible to participate in other Enova health and welfare benefit plans made generally available to officers and employees of Enova, and he will be eligible to participate in Enova’s 401(k) Savings Plan, Nonqualified Deferred Compensation Plan, Supplemental Executive Retirement Plan and Severance Pay Plan for Executives. Mr. Fisher will also receive a one-time award of restricted stock units and has entered into a change-in-control agreement, each pursuant to the Letter Agreement and as further described below.

RSU Award: Pursuant to the Letter Agreement, Mr. Fisher received a one-time grant of 14,260 restricted stock units under the Cash America International, Inc. First Amended and Restated 2004 Long-Term Incentive Plan, as amended. The number of restricted stock units that were granted was determined by dividing $600,000 by the average stock price during the 20 trading days ending on the day before the grant date, which was January 29, 2013. The restricted stock unit award agreement (the “RSU Agreement”) provides that 100% of the restricted stock units will vest on the 2nd anniversary of the grant date or earlier if Enova were to become a publicly-traded company. The RSU Agreement contains standard vesting requirements and other terms and conditions for restricted stock unit grants to executive officers, including a “clawback” provision that allows Cash America to recoup all or some of the restricted stock units under certain circumstances in the event that there is a material restatement of Cash America’s financial results.

CIC Agreement: In addition, pursuant to the Letter Agreement Mr. Fisher entered into an Executive Change-in-Control Severance and Restrictive Covenant Agreement (“CIC Agreement”) on January 29, 2013. The CIC Agreement provides that if Mr. Fisher’s employment is terminated within 24 months after a “change-in-control” of Cash America, as defined in the CIC Agreement, without cause or if he voluntarily terminates his employment with good reason (including a reduction in his duties or compensation or relocation of place of employment), then he will be entitled to: earned and unpaid salary; a pro-rated portion of the target annual bonus under the existing bonus plan based on the number of months employed during the year; a lump sum equal to all accrued but unpaid vacation and paid time off; a lump sum equal to two times his annual salary; a lump sum equal to two times the greater of (i) the target bonus for the year, or (ii) the actual bonus for the preceding year; immediate vesting of any outstanding unvested cash-based and equity-based long-term incentive awards; continued medical and health care benefits for 24 months, consisting of the portion of COBRA premiums that exceed the portion of health care premiums that current employees are required to pay (“Company COBRA Premiums”) to be paid over an 18-month period and an amount equal to (i) six times the first monthly Company COBRA Premium and (ii) 24 times Cash America’s first monthly supplemental executive health care premium, paid in a lump sum; and executive placement services from an executive search/placement firm of up to $50,000. The CIC Agreement also contains certain non-competition, non-solicitation and non-disclosure covenants in addition to a “clawback” provision that allows Cash America to recoup all or some of the payments made under certain circumstances in the event that there is a material restatement of Cash America’s financial results.

Continued Employment and Separation Agreement: On September 29, 2013, Cash America entered into an agreement with Mr. Ho detailing the terms of his separation from Enova, which will occur on March 29, 2013 (the “Continued Employment and Separation Agreement”). The Continued Employment and Separation Agreement provides Mr. Ho with two years of base salary continuation to be paid through March 2015 in the aggregate amount of $860,000 (before any applicable withholding), two years of medical benefits and a lump sum cash payment of $24,808 to cover vacation pay less the value of any vacation taken prior to separation. The Continued Employment and Separation Agreement includes certain releases and non-disclosure, non-solicitation and non-competition covenants, among other terms and conditions. In addition, the Continued Employment and Separation Agreement does not provide for acceleration or future payment of any outstanding unvested short-or long-term incentive awards. The Continued Employment and Separation Agreement provides Mr. Ho with a seven-day period from both January 29, 2013 (the date the agreement was signed) and March 29, 2013 (the date of Mr. Ho’s separation from Enova on which he is required to sign a separate release agreement) within which to revoke the Continued Employment and Separation Agreement.


ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS

 

(d) Exhibits

 

Exhibit

  

Description

10.1    Letter Agreement between David A. Fisher and Cash America International, Inc. dated January 29, 2013
10.2    2013 Long-Term Incentive Plan Award Agreement for One-Time Restricted Stock Unit Grant to David A. Fisher under the Cash America International, Inc. First Amended and Restated 2004 Long-Term Incentive Plan, as amended, dated January 29, 2013
10.3    Executive Change-in-Control Severance and Restrictive Covenant Agreement between Cash America International, Inc. and David A. Fisher dated January 29, 2013
10.4    Continued Employment and Separation Agreement between, Enova Financial Holdings, LLC, a subsidiary of Cash America International, Inc., and Timothy S. Ho dated January 29, 2013
99.1    Cash America Press Release dated January 30, 2013


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    CASH AMERICA INTERNATIONAL, INC.
Date: January 31, 2013             By:   /s/ J. Curtis Linscott
      J. Curtis Linscott
      Executive Vice President,
      General Counsel & Secretary


EXHIBIT INDEX

 

Exhibit

  

Description

10.1    Letter Agreement between David A. Fisher and Cash America International, Inc. dated January 29, 2013
10.2    2013 Long-Term Incentive Plan Award Agreement for One-Time Restricted Stock Unit Grant to David A. Fisher under the Cash America International, Inc. First Amended and Restated 2004 Long-Term Incentive Plan, as amended, dated January 29, 2013
10.3    Executive Change-in-Control Severance and Restrictive Covenant Agreement between Cash America International, Inc. and David A. Fisher dated January 29, 2013
10.4    Continued Employment and Separation Agreement between Enova Financial Holdings, LLC, a subsidiary of Cash America International, Inc., and Timothy S. Ho dated January 29, 2013
99.1    Cash America Press Release dated January 30, 2013
EX-10.1 2 d476608dex101.htm LETTER AGREEMENT Letter Agreement

Exhibit 10.1

CASH AMERICA INTERNATIONAL, INC.

1600 West Seventh Street

Fort Worth, Texas 76102

817.335.1100

January 29, 2013

David A. Fisher

1852 West Nelson St.

Chicago, Illinois 60657

Dear David:

We are pleased to offer you an opportunity to join Enova International, Inc. (“Enova”), a wholly-owned subsidiary of Cash America International, Inc. (“Cash America”), as Enova’s Chief Executive Officer. You will report directly to Daniel R. Feehan, Chief Executive Officer and President of Cash America. The specifics of your offer are outlined below.

Starting Date. Your employment will commence on January 29, 2013.

Base Salary. The amount of your annual base salary will be $525,000, which will be paid in substantially equal installments at the same payroll frequency as applies to other executive officers of Enova.

Annual Short-Term Incentive. You will be eligible to participate in Enova’s short-term incentive program, which will provide for a bonus opportunity targeted at 75% of your annual base salary if Enova achieves 100% of its annual financial objectives. Under the current program, the actual amount of your final award will be contingent upon both your individual performance and the degree to which Enova achieves its financial objectives for the year. The plan provides that the actual award can be from anywhere between 0 – 200% of the target award, depending on your and Enova’s performance. The annual incentive award is determined and made available at the sole discretion of the Management Development and Compensation Committee (“Committee”) of the Cash America Board of Directors (the “Board”) and is subject to the terms of the controlling documentation for this program. From year to year, there is no guarantee of the amount or continuation of the award. However, for the 2013 calendar year only, your annual short-term incentive award for 2013 calendar year performance will be the greater of (i) the amount determined pursuant to the terms and conditions of Enova’s short-term incentive plan documents for the 2013 calendar year, which will be a prorated amount based on the number of days you are employed by Enova during 2013 divided by 365, or (ii) 75% of your targeted annual short-term incentive award opportunity for the 2013 calendar year, with the 2013 target award being prorated based on the number of days you are employed by Enova during 2013 divided by 365. You must be employed continuously through December 31 of a calendar year in order to receive any short-term incentive for that calendar year.


Long-Term Incentive Plan. Under Enova’s current Long-Term Incentive Program, you will be eligible for annual long-term incentive program grants made under Cash America’s Long Term Incentive Plan, as amended (the “Cash America LTIP”), with the form and substance of such grants to be consistent with long-term incentive grants made to other officers of Enova. Grants have historically been granted in January; however, the Compensation Committee reserves the right to adjust the timing of the grants at its discretion. The type of award and the actual amount granted will be determined and approved by the Compensation Committee each year. The estimated grant date value of your annual Enova Long-Term Incentive Program award will be targeted at 150% of your annual base salary for the calendar year in which the grant is made. If you start your employment on or before February 5, 2013, the Compensation Committee expects to award to you a 2013 annual long-term incentive award consistent with the terms and conditions of the 2013 annual awards granted to other officers of Enova in early 2013. Notwithstanding any vesting schedule generally applicable to any Enova long-term incentive awards granted to you in 2013 and 2014 under the Enova Long-Term Incentive Program, if you decide to voluntarily terminate your employment at any time between February 1, 2015, and December 31, 2015, and you provide prior written notice of such termination to the Board at least 45 days before the effective date thereof, you will become 100% vested in those two awards. In this event, you will be paid the value of those awards at the same times you would have received them had you not terminated, with the amounts payable being determined under the same processes, measurements and valuations as would have applied to those awards had you not terminated.

Signing Bonus. Upon commencement of your employment, the Compensation Committee expects to award you a one-time grant of Cash America restricted stock units pursuant to the applicable provisions of the Cash America LTIP. This grant will have a grant date value of $600,000, with such value to be determined in a manner consistent with the method in which Cash America determines the value of its long-term incentive grants for officers of Cash America. You will become fully vested in all of those restricted stock units on the earlier of (i) the 2nd anniversary of the grant date, or (ii) the date Enova becomes a publicly traded company, in either event conditioned on you being continuously employed from your start date through that vesting date.

Health and Other Welfare Benefits. You will be eligible to participate in the Enova Welfare Benefit Plan, which includes Enova’s group health and other welfare plans generally available to employees, and your participation will be on the same terms as apply to other full-time Enova employees. You also will be eligible for the Enova Medical Expense Reimbursement Plan (the “MERP”), which is a supplemental health insurance plan provided to Enova officers and their dependents. Subject to the specifics of the MERP insurance policy, the MERP will reimburse you for any out of pocket medical, dental and vision care expenses, which are incurred by you or your dependents and which are not covered by the Enova group health plans.

401(k) Savings Plan. You will become eligible to participate in the Enova 401(k) Savings Plan (the “401(k) Plan”) on the first day of the month following 30 days of employment. Unless you elect a different percentage, you will be automatically enrolled at a deferral rate of 3% of your 401(k) eligible compensation (generally, your base salary and annual short term incentive, up to the legal maximum amount). Initially, you may change your deferral percentage at any time by

 

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electing a deferral percentage of between 0% and 75% of your 401(k) eligible compensation (subject to IRS limitations). However, beginning in 2014, you will be considered a highly compensated employee (i.e., because your taxable compensation paid in 2013 will exceed $115,000; “HCE”); and, under the current terms of the 401(k) Plan, your deferral percentage will be limited to a maximum of 5% of your 401(k) eligible compensation. The Company will match 50% of up to 5% of your 401(k) eligible compensation that you defer under the 401(k) Plan. Notwithstanding the foregoing, your benefits under the 401(k) Plan (including your maximum deferral rate) will be determined under the terms and policies of that plan as they exist from time to time and will be the same as other Enova executive officers.

Nonqualified Deferred Compensation Plan. Commencing in 2014, as an HCE, you will be eligible to defer compensation into the Enova Nonqualified Savings Plan, a nonqualified deferred compensation plan (the “DCP”). The Nonqualified Savings Plan in many ways mirrors the 401(k) Plan with funds being held in a rabbi trust; however, there is no option to invest in Cash America stock in the Nonqualified Savings Plan. There is no company match in the Nonqualified Savings Plan to the extent you are eligible to receive the full match under the 401(k) Plan on your DCP eligible compensation.

Supplemental Executive Retirement Plan. In 2013, you will become a participant in Enova’s Supplemental Executive Retirement Plan (the “SERP”), a nonqualified deferred compensation plan with employer contributions. The actual amount of contributions credited to your account each year will be determined and approved each year by the Compensation Committee, and will be targeted at 10.5% of your SERP eligible compensation during the year.

Vacation. You will be eligible for 5 weeks of annual vacation effective upon your date of hire.

Executive Change-In-Control Severance and Restrictive Covenant Agreement. It is expected that the Board will designate you, as the Chief Executive Officer of Enova, as an executive officer of Cash America. In this connection, upon commencement of your employment, you will need to sign an Executive Change-in-Control Severance and Restrictive Covenant Agreement (“CIC Agreement”) in form and substance satisfactory to Enova. The CIC Agreement will contain change-in-control provisions substantially similar to the change-in-control provisions in the Executive Change-in-Control Severance Agreements currently in effect with other executive officers of Cash America. The CIC Agreement will also contain non-competition, non-solicitation and non-disclosure covenants that would in most cases remain in effect for 24 months following the date your employment with Enova terminates for any reason. As an executive officer of Cash America, you will be subject to Section 16 of the Securities Exchange Act of 1934 and the rules and regulations thereunder.

Severance Pay Plan for Executives. Under applicable circumstances, you will be eligible to participate in Cash America’s Severance Pay Plan for Executives, or any equivalent or successor plan thereto for Enova, on such terms and conditions as may be in effect and may apply to your situation at any particular time.

Plan Documents. To the extent any of the arrangements described herein are memorialized in a separate written document and/or policy, the terms of that document and/or policy shall control. Cash America and Enova reserve the right to amend the terms or policies of any plan or compensation arrangement described herein or in which you otherwise may participate, and/or to terminate any such plan or arrangement.

 

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Tax Withholding. The amounts of compensation set forth herein are gross amounts, before taxation or other required withholdings. Enova reserves the right to withhold all applicable federal, state and local income, Social Security and other employment taxes, along with any other amounts of required withholding, from all amounts of compensation payable to you, whether as direct compensation or from any of the compensation or benefit plans in which you may participate.

No Restrictions on Employment. By signing below, you represent that you are not subject to any noncompete, other restrictive covenant or any other restriction that would prevent you from being employed by Enova or would limit in any way the services you may provide for Enova for its business as it is being operated today.

Contingencies. This offer is contingent upon the customary pre-employment screenings performed for any prospective executive officer, including (i) satisfactory verification of employment references, (ii) a background check including credit/criminal history, (iii) successful completion of a drug screen, (iv) your ability to provide documentation that proves your identity and demonstrates your eligibility to work in the United States, and (v) the completion and execution of Enova’s standard new hire paperwork and the Cash America D&O Questionnaire in form and substance similar to the questionnaire completed by other executive officers of Cash America.

At-Will Employment. We recognize that you retain the option, as does Enova, of ending your employment with Enova at any time, with or without notice and with or without cause. As such, your employment with Enova is at-will, and neither this letter nor any other oral or written representations may be considered a contract for any specific period of time. In addition, as an employee of Enova, you will be subject to the employment policies and employee code of conduct that apply to all employees and to officers, and you will execute any agreement(s) customarily provided to other coworkers of Enova to the extent any matters covered by those agreements are not addressed in the CIC Agreement. The only persons authorized to make any agreement to the contrary is the Chief Executive Officer of Cash America or the Compensation Committee. To be effective, however, any such agreement must be in a written document signed by the Chief Executive Officer of Cash America.

Please confirm your acceptance of our conditional offer by signing this offer letter and returning it to me via fax or e-mail me a PDF copy. Feel free to keep a copy of this offer letter for your records.

 

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Formalities aside, David, we look forward to having you join our team. Once the contingencies mentioned above are met, please communicate with Dan Feehan or me to confirm your start date and time. If you have any specific questions about your offer, or anything regarding your employment with Enova, please feel free to call Dan Feehan directly (817.570.1676) or me at (214.673.7552).

 

Kind Regards,
/s/ James H. Graves
James H. Graves,

Chairman, Management Development & Compensation Committee

of the Board of Directors of Cash America International, Inc.

I fully understand the terms of employment described above and agree to and accept all of those terms.

 

/s/ David A. Fisher
David A. Fisher

 

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EX-10.2 3 d476608dex102.htm 2013 LONG-TERM INCENTIVE PLAN AWARD AGREEMENT 2013 Long-Term Incentive Plan Award Agreement

Exhibit 10.2

CASH AMERICA INTERNATIONAL, INC.

2013 LONG-TERM INCENTIVE PLAN AWARD AGREEMENT

FOR ONE-TIME GRANT TO CHIEF EXECUTIVE OFFICER OF ENOVA INTERNATIONAL, INC.

This Long-Term Incentive Plan Award Agreement (the “Agreement”) is entered into as of January 29, 2013, by and between CASH AMERICA INTERNATIONAL, INC. (the “Company”) and David A. Fisher (“Employee”).

W I T N E S S E T H:

WHEREAS, the Company has adopted the Cash America International, Inc. First Amended and Restated 2004 Long-Term Incentive Plan, as amended (the “Plan”), which is administered by the Management Development and Compensation Committee of the Company’s Board of Directors (the “Committee”); and

WHEREAS, pursuant to Section 4 and Section 9 of the Plan, the Committee has granted to Employee an award (the “Award”) of Restricted Stock Units (“RSUs”) as partial inducement for Employee to accept employment with a subsidiary of the Company and to encourage Employee’s loyalty and diligence;

WHEREAS, the RSUs represent the unfunded and unsecured promise of the Company to issue to Employee an equivalent number of shares of the common stock of the Company or its successors (“Common Stock”) at a future date, subject to the terms of this Agreement.

NOW, THEREFORE, for and in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Award.

(a) General. Subject to the restrictions and other conditions set forth herein, the Company hereby grants to Employee an Award of 14,260 RSUs.

(b) Grant Date. The Award was awarded to Employee on January 29, 2013 (the “Grant Date”).

2. Vesting. 100% of the Award shall vest on the earlier to occur of (i) January 29, 2015 or, (ii) the date Enova International, Inc. (a wholly-owned subsidiary of the Company) first becomes a publicly traded company through a spin-off or public offering of all or any portion of the common stock of Enova International, Inc. or its successors (the earlier of such dates, the “Vesting Date”) as long as Employee remains continuously employed by the Company or its subsidiaries or other affiliates through the Vesting Date.

3. Treatment of Award Upon Termination of Employment or Failure to Vest. Upon Employee’s termination of employment with the Company and all of its subsidiaries and affiliates for any reason (including death) prior to the Vesting Date, if the Award has not yet vested as provided in Section 2 of this Agreement, such Award shall be immediately forfeited, and Employee shall forfeit any and all rights in or to such unvested Award.

4. Payment of Awards. Within a reasonable time after the Vesting Date, the Company shall instruct its transfer agent to issue a stock certificate evidencing the conversion of such vested RSUs into whole vested shares of Common Stock in the name of Employee (or if Employee has died, in the name of Employee’s designated beneficiary or, if no beneficiary has been designated, Employee’s estate (“Beneficiary”)), but in no event will the Common Stock relating to the vested Award be transferred to Employee (or, if applicable, to Employee’s Beneficiary) later than December 31 of the calendar year in which the Vesting Date occurs. The Company shall not be required to deliver any fractional shares of Common Stock under the Award. Any fractional shares shall be rounded up to the next whole share.


5. Change in Control.

(a) Vesting and Payment. In the event of a Change in Control (as defined below) while Employee is still employed by the Company or its subsidiaries or other affiliates, vesting of the entire Award shall automatically accelerate and become 100% vested as of the date the Change in Control occurs as long as Employee has remained continuously employed through such date by the Company or by an entity that is a subsidiary or other affiliate of the Company on the day immediately preceding the date of the Change in Control. In such event, the shares of Common Stock evidencing vested RSUs shall be delivered to Employee in a lump sum within 60 days following the date of the Change in Control. A “Change in Control” shall mean an event that is a change in the ownership of the Company, a change in the effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, all as defined in Code §409A and guidance issued thereunder, except that 35% shall be substituted for 30% in applying Treasury Regulations Section 1.409A-3(i)(5)(vi) and 50% shall be substituted for 40% in applying Treasury Regulations Section 1.409A-3(i)(5)(vii). Notwithstanding the above, a “Change in Control” shall not include any event that is not treated under Code §409A as a change in control event with respect to Employee. Notwithstanding the incorporation of certain provisions from the Treasury Regulations under Code Section 409A, the Company intends that all payments under this Agreement be exempt from Section 409A under the exemption for short-term deferrals in Treasury Regulations Section 1.409A-1(b)(4).

(b) Substitution. Notwithstanding anything set forth herein to the contrary, upon a Change in Control, the Committee, in its sole discretion, may, in lieu of issuing Common Stock, provide Employee with an equivalent amount payable in the form of cash.

6. Agreement of Employee. Employee acknowledges that certain restrictions under state or federal securities laws may apply with respect to the shares of Common Stock to be issued pursuant to the Award. Specifically, Employee acknowledges that, to the extent Employee is an “affiliate” of the Company (as that term is defined by the Securities Act of 1933), the shares of Common Stock to be issued as a result of the Award are subject to certain trading restrictions under applicable securities laws (including particularly the Securities and Exchange Commission’s Rule 144). Employee hereby agrees to execute such documents and take such actions as the Company may reasonably require with respect to state and federal securities laws and any restrictions on the resale of such shares which may pertain under such laws.

7. Withholding. Upon the issuance of shares to Employee pursuant to this Agreement, Employee shall pay an amount equal to the amount of all applicable federal, state and local employment taxes which the Company is required to withhold at any time. Such payment may be made in cash or, with respect to the issuance of shares to Employee pursuant to this Agreement, by delivery of whole shares of Common Stock (including shares issuable under this Agreement) in accordance with Section 14(a) of the Plan.

8. Adjustment of Awards.

(a) If there is an increase or decrease in the number of issued and outstanding shares of Common Stock through the payment of a stock dividend or resulting from a stock split, a recapitalization, or a combination or exchange of shares of Common Stock, then the number of outstanding RSUs hereunder shall be adjusted so that the proportion of such Award to the Company’s total issued and outstanding shares of Common stock remains the same as existed immediately prior to such event.

(b) Except as provided in Section 8(a) of this Agreement, no adjustment in the number of shares of Common Stock subject to any outstanding portion of the RSUs shall be made upon the issuance by the Company of shares of any class of its capital stock or securities convertible into shares of any class of capital stock, either in connection with a direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon the conversion of any other obligation of the Company that may be convertible into such shares or other securities.

 

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(c) Upon the occurrence of events affecting Common Stock other than those specified in Sections 8(a) and 8(b) of this Agreement, the Committee may make such other adjustments to awards as are permitted under Section 5(c) of the Plan. This section shall not be construed as limiting any other rights the Committee may have under the terms of the Plan.

9. Clawback Provision. Pursuant to Section 14(m) of the Plan, in the event that the Company is required to materially restate its financial results due to the Company’s material noncompliance with any financial reporting requirement under Federal securities laws, excluding a material restatement of such financial results due solely to a change in generally accepted accounting principles in the United States or such other accounting principles that may be adopted by the Securities and Exchange Commission and are or become applicable to the Company, at any time before or within two years following the Vesting Date as a result of fraud or intentional misconduct on the part of the Employee, the Committee may, in its discretion, (a) cancel the Award, in whole or in part, whether or not vested (so long as shares of Common Stock have not yet been issued in accordance with Section 4 of this Agreement) and/or (b) require the Employee to repay to the Company an amount equal to all or any portion of the value of any or all of the shares that have been issued in accordance with Section 4 of this Agreement valued as of the Vesting Date. Such cancellation or repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation may be satisfied in shares of Common Stock or cash or a combination thereof (based on the Fair Market Value of the shares of Common Stock on the date of repayment) and the Committee may provide for an offset to any future payments owed by the Company or any of its subsidiaries or affiliates to the Employee if necessary to satisfy the repayment obligation; provided, however, that if any such offset is prohibited under applicable law, the Committee shall not permit any offsets and may require immediate repayment by the Employee.

Notwithstanding the foregoing, to the extent required to comply with applicable law, any Clawback Policy and/or amendment to the Plan adopted by the Company after the date of this Agreement, the Company may unilaterally amend this Section 9, and any such amendment shall be made by providing notice of such amendment to Employee, and such amendment shall be binding on Employee; provided, regardless of whether the Company makes such a unilateral amendment to this Section 9 or provides such notice to Employee, this section shall be deemed consistent with any Clawback Policy and/or amendment to the Plan adopted by the Company after the date of this Agreement and Employee shall be bound thereby.

10. Plan Provisions.

In addition to the terms and conditions set forth herein, the Award is subject to and governed by the terms and conditions set forth in the Plan, as may be amended from time to time, which are hereby incorporated by reference. Any terms used herein with an initial capital letter shall have the same meaning as provided in the Plan, unless otherwise specified herein. In the event of any conflict between the provisions of the Agreement and the Plan, the Plan shall control.

11. Miscellaneous.

(a) Limitation of Rights. The granting of the Award and the execution of the Agreement shall not give Employee any rights to (1) similar grants in future years, (2) any right to be retained in the employ or service of the Company or any of its affiliates or subsidiaries, or (3) interfere in any way with the right of the Company or its affiliates or subsidiaries to terminate Employee’s employment or services at any time.

(b) Interpretation. Employee accepts this Award subject to all the terms and provisions of the Plan and this Agreement. The undersigned Employee hereby accepts as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan and this Agreement.

 

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(c) Shareholder Rights. Neither Employee nor Employee’s Beneficiary shall have any of the rights of a shareholder with respect to any shares of Common Stock issuable upon vesting of any portion this Award, including, without limitation, a right to cash dividends or a right to vote, until (i) such portion of the Award is vested, and (ii) such shares have been delivered and issued to Employee or Employee’s Beneficiary pursuant to Section 4 of this Agreement.

(d) Severability. If any term, provision, covenant or restriction contained in the Agreement is held by a court or a federal regulatory agency of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions contained in the Agreement shall remain in full force and effect, and shall in no way be affected, impaired or invalidated.

(e) Controlling Law. The Agreement is being made in Texas and shall be construed and enforced in accordance with the laws of that state.

(f) Construction. The Agreement and the Plan contain the entire understanding between the parties, and supersedes any prior understanding and agreements between them, representing the subject matter hereof. There are no representations, agreements, arrangements or understandings, oral or written, between and among the parties hereto relating to the subject matter hereof which are not fully expressed herein.

(g) Headings. Section and other headings contained in the Agreement are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of the Agreement or any provision hereof.

(h) Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements contained herein shall be binding upon and inure to the benefit of Employee’s heirs, legal representatives, successors and assigns.

(i) Execution/Acceptance. This Agreement may be executed in duplicate counterparts, the production of which (including a signature) shall be sufficient for all purposes for the proof of the binding terms of this Agreement.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

 

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IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day and year first set forth above.

 

CASH AMERICA INTERNATIONAL, INC.
By:   /s/ Daniel R. Feehan
 

 

  Daniel R. Feehan
  Chief Executive Officer and President
EMPLOYEE
/s/ David A. Fisher
David A. Fisher

[Signature Page for 2013 Long-Term Incentive Plan Award Agreement –

One-Time Grant to Chief Executive Officer of Enova International, Inc.]

 

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EX-10.3 4 d476608dex103.htm EXECUTIVE CHANGE-IN-CONTROL SEVERANCE AGREEMENT Executive Change-in-Control Severance Agreement

Exhibit 10.3

Cash America International, Inc.

Executive Change-in-Control Severance and Restrictive Covenant Agreement

THIS EXECUTIVE CHANGE-IN-CONTROL SEVERANCE AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is made and entered into by and between Cash America International, Inc. (the “Company”), a Texas corporation, and David A. Fisher (“Executive”), and is effective on the 29th day of July, 2013 (hereinafter referred to as the “Effective Date”).

WHEREAS, as of the date hereof, the Executive is commencing employment with Enova International, Inc., a wholly-owned subsidiary of the Company; and

WHEREAS, the Executive has previously been the Chief Executive Officer of a highly-regulated publicly traded business and, as such, possesses considerable experience, and has demonstrated success, (i) in leading a highly regulated public company, including experience and success in operations, information technology, compliance, human resources and marketing, and (ii) in executive management and oversight of a complex international business; and

WHEREAS, the Company is desirous of assuring insofar as possible, that it will have, and 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 the shareholders of the Company; 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 the shareholders of the Company; 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:

Article 1. Definitions

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:

 

  (a) Agreement” means this Executive Change-in-Control Severance and Restrictive Covenant Agreement.


  (b) 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.

 

  (c) Board” means the Board of Directors of the Company.

 

  (d) 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:

 

  (i) 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

 

  (ii) The Executive’s conviction of a felony; or

 

  (iii) 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.

 

  (e) Change in Control” means an event that is a change in the ownership of the Company, a change in the effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, all as defined in Code Section 409A and guidance issued thereunder. As a general overview, a Change in Control will occur on the date that any of the following events occurs:

 

  (i) Any one person, or more than one person acting as a group (as defined in Code Section 409A), acquires ownership of Company stock that, together with all other Company stock held by such person or group constitutes more than 50 percent of the total fair market value or total voting power of the stock of the Company. However, if any one person, or more than one person acting as a group, is considered to own more than 50 percent of the total fair market value or total voting power of the stock of the Company, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Company or to cause a change in the effective control of the Company.

 

  (ii) The date any one person, or more than one person acting as a group, acquires (or has acquired, during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 35 percent or more of the total voting power of the stock of the Company.

 

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  (iii) The date that any one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 50 percent of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions.

 

  (iv) The date a majority of the Company’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s board of directors before the date of the appointment or election.

 

  (f) Code” means the Internal Revenue Code of 1986, as amended.

 

  (g) Committee” means the Management Development and Compensation Committee of the Board, or, if no Management Development and Compensation Committee exists, then the full Board, or a committee of Board members, as appointed by the full Board to administer this Agreement.

 

  (h) Company” means the Company (including any and all subsidiaries).

 

  (i) 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.

 

  (j) Effective Date” means the date specified in the opening sentence of this Agreement.

 

  (k) Effective Date of Termination” means the date on which a Qualifying Termination occurs, as provided in Section 2.2 herein.

 

  (l) Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

  (m) 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 events which remains uncured after the expiration of 30 days following the delivery of written notice of such event to the Company in accordance with section 2.7:

 

  (i) The assignment of the Executive to duties materially inconsistent with, and which would constitute a material diminution with respect to, 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 any insubstantial and inadvertent act;

 

  (ii) 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) A material 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;

 

  (iv) 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 which results in a material diminution in the incentive compensation opportunity or benefits provided to the Executive, 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 materially 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;

 

  (v) The failure of the Company to obtain a satisfactory agreement from any successor to the Company as a result of a Change in Control of the Company to assume and agree to perform the Company’s obligations under this Agreement, such that there is a breach of Article 8 herein; and

 

  (vi) 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.

 

  (n) Qualifying Termination” means any of the events described in Section 2.2 herein, the occurrence of which gives rise to the entitlement to the payment of Severance Benefits hereunder.

 

  (o) SERP” means the Enova International, Inc. Supplemental Executive Retirement Plan, as amended from time to time.

 

  (p) Separation from Service” or “Separate from Service” means the Executive separates from service with the Company as determined under Code Section 409A. For purposes of determining whether a Separation from Service has occurred, the “Company” shall include the Company (or the subsidiary or former subsidiary of the Company) that employs the Executive immediately before the separation (the “Employing Entity”) and all entities that would be treated as a single employer with the Employing Entity at such time under Code Sections 414(b) or (c), but substituting “at least 50 percent” instead of “at least 80 percent” each place it appears in applying such rules.

 

  (q) Severance Benefits” mean the payment of severance compensation as provided in Section 2.3 herein.

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) months thereafter, the Executive Separates from Service with the Company for any reason specified in Section 2.2 herein as being a Qualifying Termination.

 

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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, 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-four (24) months after a Change in Control of the Company shall be considered a “Qualifying Termination” and shall give rise to Executive’s entitlement to Severance Benefits under this Agreement:

 

  (a) The Company’s involuntary termination of the Executive’s employment without Cause; and

 

  (b) The Executive’s voluntary termination of employment following the initial existence of a Good Reason.

For purposes of this Agreement, a Qualifying Termination shall not include a termination of employment by reason of death or Disability, the Executive’s voluntary termination for reasons other than as specified in Section 2.2(b) herein, or the Company’s involuntary termination for Cause.

2.3 Description of Severance Benefits. In the event that the Executive becomes entitled to receive Severance Benefits, as provided in Sections 2.1 and 2.2 herein, the Company shall pay to the Executive and provide him with the following Severance Benefits:

 

  (a) A lump-sum amount equal to the Executive’s unpaid Base Salary, accrued vacation pay and unreimbursed business expenses, as well as all other items earned by and owed to the Executive to the extent permitted under Code Section 409A, through and including the Effective Date of Termination.

 

  (b) A lump-sum amount equal to the Executive’s annual target bonus amount, established under the annual bonus plan or plans in which the Executive is then participating, for the bonus plan year in which the Executive’s Effective Date of Termination occurs, multiplied by a fraction the numerator of which is the number of full completed months in the year from January 1 through the Effective Date of Termination, and the denominator of which is twelve (12). This payment will be in lieu of any other payment to be made to the Executive under the annual bonus plan in which the Executive is then participating for the plan year.

 

  (c) A lump-sum amount equal to two (2) multiplied by the higher of: (i) the Executive’s annual rate of Base Salary in effect upon the Effective Date of Termination, or (ii) the Executive’s annual rate of Base Salary in effect on the date of the Change in Control.

 

  (d) A lump-sum amount equal to two (2) multiplied by the higher of: (i) the Executive’s annual target bonus established under the annual bonus plan in which the Executive is then participating for the bonus plan year in which the Executive’s Effective Date of Termination occurs, or (ii) the actual annual bonus payment made to the Executive under the annual bonus plan in which the Executive participated in the year preceding the year in which the Effective Date of Termination occurs.

 

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  (e) An immediate vesting of any and all outstanding cash-based long-term incentive awards held by the Executive, as granted to the Executive by the Company as a component of the Executive’s compensation. In addition, he shall be entitled to receive payment for any vested awards the payment value of which is to be determined after the Effective Date of Termination. The value of all such vested awards shall be the greater of: (i) an amount calculated under the terms of the incentive award, which shall be based on the higher of the actual achievement of the performance goals or the targeted performance goals set forth at the time the award is established; or (ii) the amount to which the Executive would be entitled under the terms of the long-term incentive award in the absence of this provision. The amount, timing and form of payment of the vested awards shall be determined pursuant to the terms of the long-term incentive awards.

 

  (f) An immediate vesting and the lapse of all restrictions on any and all outstanding stock-based awards held by the Executive, including the maximum amount of any performance-based awards, if any, to the extent not already provided for in the award agreement.

 

  (g) Equivalent payment for continued medical coverage under the Company’s group health plan and/or under the Company’s supplemental executive medical expense reimbursement plan (“MERP”), if any, for a period of twenty-four (24) months following the date of Separation from Service, based on the same coverage level, including dependent coverage, as in effect on the Effective Date of Termination. Executive’s dependents shall be entitled to continue coverage for the full twenty-four (24) month period following the Effective Date of Termination, even if the Executive dies during such period. Each payment or premium discount provided under this subsection shall be considered a separate payment for purposes of Code Section 409A. Equivalent payment under this subsection shall be provided as follows:

 

  (i) With respect to coverage other than the MERP, such equivalent payment shall be provided by:

 

  (A) providing reimbursement of the portion of the monthly COBRA premium in excess of the amounts (if any) that similarly-situated active employees would pay for similar coverage under the Company’s plans for the eighteen (18) month period, or such shorter period, of time during which Executive has COBRA coverage, or a direct reduction in premiums in lieu of reimbursement if determined by the Company in its discretion;

 

  (B) providing a lump-sum payment equal to the reimbursement described in clause (i)(A) of this subsection for the first monthly COBRA premium times six (6); and

 

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  (C)

if for any reason during the eighteen (18) month period following the Effective Date of Termination, Executive does not have COBRA coverage under the Company’s group health plan, the Company shall make an additional lump sum payment to Executive (or to Executive’s estate if Executive has died), equal to the reimbursement described in clause (i)(A) of this subsection for the first monthly COBRA premium times the number of months in the period from the date Executive’s COBRA coverage ends through the end of the eighteenth (18th) month following the Effective Date of Termination.

 

  (ii) The Company shall also pay a lump-sum payment equal to the portion of the monthly MERP premium in excess of the amounts (if any) that similarly-situated active employees would pay for similar coverage under the MERP for a period of twenty-four (24) months.

 

  (h) Up to $50,000 for reimbursement of amounts paid by the Executive for reasonable outplacement services from a reputable executive search firm of the Executive’s selection (or direct payment to such search firm), to the extent that the Executive incurs such expenses (i) as a direct result of the Separation from Service and (ii) within twenty-four (24) months after the date of the Separation from Service. Notwithstanding anything in this Agreement to the contrary, the Company shall provide any reimbursements described in this Section 2.3(h) to the Executive on or before the December 31 of the third calendar year following the calendar year that includes the Separation from Service.

2.4 Termination for Total and Permanent Disability. Following a Change in Control, if the Executive’s employment is terminated with the Company due to Disability, the Executive’s benefits shall be determined in accordance with the Company’s retirement, insurance, and other applicable plans and programs then in effect.

2.5 Termination for Retirement or Death. Following a Change in Control, if the Executive’s employment with the Company is terminated by reason of his death, the Executive’s benefits shall be determined in accordance with the Company’s retirement, survivor’s benefits, insurance, and other applicable programs then in effect.

2.6 Termination for Cause or by the Executive Other Than for Good Reason. Following a Change in Control, if the Executive’s employment is terminated either: (i) by the Company for Cause; or (ii) voluntarily by the Executive for reasons other than as specified in Section 2.2(b) herein, the Company shall pay the Executive his full Base Salary at the rate then in effect, accrued vacation or paid time off, and other items earned by and owed to the Executive through the Effective Date of Termination, plus all other amounts to which the Executive is entitled under any compensation plans of the Company at the time such payments are due, and the Company shall have no further obligations to the Executive under this Agreement.

2.7 Notice of Termination. Any termination of the Executive’s employment by the Company for Cause or by the Executive for Good Reason shall be communicated by Notice of Termination to the other party. For purposes of this Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated. In order to terminate for Good Reason, (i) the Executive must give the Company 30 days’ written notice of the intent to terminate for Good Reason within 90 days of the initial existence of the conditions purportedly constituting Good Reason; (ii) the termination for Good Reason shall only take effect if the Company has not cured any conditions that are identified in such notice by Executive, and that constitute Good Reason, within 30 days after such notice; and (iii) the date of termination of employment may not be later than 130 days after the date of the initial existence of the conditions purportedly constituting Good Reason.

 

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Article 3. Form and Timing of Severance Benefits

3.1 Form and Timing of Severance Benefits. The Severance Benefits described in Sections 2.3(a), 2.3(b), 2.3(c) and 2.3(d) herein and the lump sum payments described in Sections 2.3(g)(i)(B) and 2.3(g)(ii) herein shall be paid in cash to the Executive in a single lump sum as soon as practicable following the date of Separation from Service, but in no event later than ten (10) calendar days from such date. The lump sum payment described in section 2.3(g)(i)(B) herein, if applicable, shall be paid in cash to the Executive in a single lump sum on the first day of the nineteenth (19th) month following the date of Separation from Service.

3.2 Withholding of Taxes. Upon payment of Severance Benefits or other amounts payable under this Agreement, the Company shall withhold from those Severance Benefits or other amounts all federal, state, city, or other taxes as legally shall be required.

Article 4. The Company’s Payment Obligation

4.1 Payment Obligations Absolute. Except as provided in Section 9.8 herein, the Company’s obligation to make the payments and the arrangements provided for herein shall be absolute and unconditional, and shall not be affected by any circumstances including, without limitation, any offset, counterclaim, recoupment, defense, or other right which the Company may have against the Executive or anyone else. All amounts payable by the Company hereunder shall be paid without notice or demand. Each and every payment made hereunder by the Company shall be final, and except as provided in Section 9.8 herein, the Company shall not seek to recover all or any part of such payment from the Executive or from whomsoever may be entitled thereto, for any reasons whatsoever.

The Executive shall not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement, and the obtaining of any such other employment shall in no event effect any reduction of the Company’s obligations to make the payments and arrangements required to be made under this Agreement, except to the extent provided in Section 2.3(h) herein.

4.2 Contractual Rights to Benefits. This Agreement establishes and vests in the Executive a contractual right to the benefits to which he is entitled hereunder. However, nothing herein contained shall require or be deemed to require, or prohibit or be deemed to prohibit, the Company to segregate, earmark, or otherwise set aside any funds or other assets, in trust or otherwise, to provide for any payments to be made or required hereunder.

Article 5. Term of Agreement

This Agreement will commence on the Effective Date and shall continue in effect for two (2) full years. However, at the end of such two (2) year period and, if extended, at the end of each additional year thereafter, the term of this Agreement shall be extended automatically for one (1) additional year, unless either party delivers written notice six (6) months prior to the end of such term, or extended term, stating that the Agreement will not be extended. In such case, the Agreement will terminate at the end of the term, or extended term, then in progress.

 

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However, in the event of a Change in Control of the Company, the term of this Agreement shall automatically be extended for two (2) years from the date of the Change in Control.

Article 6. Executive’s Restrictive Covenants.

6.1 Confidential and Proprietary Information

 

  (a) Access. Executive acknowledges that during the term of Executive’s employment with the Company or any of its affiliates, Executive will be privy to confidential and proprietary information of the Company and its affiliates, including former affiliates, (collectively, the “Enterprise”).

 

  (b) Nondisclosure. Executive agrees to not disclose to any third party, without the prior written consent of the Board or unless necessary to perform Executive’s duties and responsibilities hereunder, the trade secrets, proprietary information, marketing strategies, business strategies, business plans, pricing data, legal analyses, financial information, insurance information, customer lists, customer information, creditor files, processes, policies, procedures, research, lists, methodologies, specifications, software, software code, computer systems, software and hardware architecture and specifications, customer information systems, point of sale systems, management information systems, software design and development plans and materials, computer information control and security plans and systems, intellectual property, contracts, business records, technical expertise and know-how, and other confidential and proprietary information and trade secrets of the Enterprise (collectively, the “Property”), which have been or are provided to Executive by the Enterprise and are confidential and proprietary property of the Enterprise. Executive further agrees not to use any Property to Executive’s personal benefit or the benefit of any third party. Executive also agrees to return to the Company all such Property which is tangible upon the termination of Executive’s employment for any reason. Notwithstanding the foregoing, the Property protected hereunder will not include any data or information that has been disclosed to the public (except where such public disclosure has been made by Executive without authorization), that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. The restrictions in this Section are in addition to, and not in lieu of, any rights or remedies the Company or any of its affiliates may have available pursuant to the laws of the State of Illinois to prevent the disclosure of trade secrets and proprietary information.

 

  (c) Nondisclosure Period. Executive’s obligations under the nondisclosure provisions in this Section 6.1 (i) will apply to confidential information that does not constitute trade secrets during the term of Executive’s employment hereunder and for a period of twenty four (24) months after the date such employment terminates for any reason, and (ii) will apply to trade secrets until such Property no longer constitutes trade secrets.

6.2 Nonsolicitation of Employees and Agents. Executive agrees that, for the twenty four (24) month period following the date Executive’s employment terminates, Executive will not, directly or indirectly, solicit, recruit or induce any employee, officer, agent or independent contractor of the Enterprise to terminate such party’s engagement with the Enterprise so as to work for any person or business which competes with the Enterprise for talent; provided, the restrictions set forth in this Section will only apply to employees, officers, agents or independent contractors with whom Executive has business contact during the 12 month period ending on the date Executive’s employment terminates.

 

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6.3 Covenant Against Competition. Executive will not at any time during Executive’s employment with the Enterprise, other than in performance of Executive’s duties for the Enterprise, and for the twenty-four (24) month period following the date Executive’s employment terminates, on Executive’s own behalf, or on behalf of any other person or entity, compete with the Enterprise by providing employment, management or consulting services, similar to those Executive provided to the Enterprise with respect to any products or services similar to those offered or under development by Enova International, Inc. or any of its affiliates (“Enova Products and Services”) anywhere within the Territory at any time during the twenty-four (24) month period ending on the day Executive’s employment terminates. For purposes of this Agreement, the term “Territory” will mean any territory in which the Enterprise offers its services or products at any time during the 12 month period ending on the day Executive’s employment terminates.

6.4 Nonsolicitation of Customers and Clients. Executive will not at any time during Executive’s employment with the Enterprise, other than in performance of Executive’s duties for the Enterprise, and for a period of twenty-four (24) months after the day Executive’s employment terminates, on Executive’s own behalf or on behalf of any other person or entity, solicit, initiate contact, call upon, initiate communication with or attempt to initiate communication with any customer or client of the Enterprise or any representative of any customer or client of the Enterprise, with a view to providing Enova Products and Services to such clients or customers; provided, the restrictions set forth in this Section that are applicable after the day Executive’s employment terminates will apply only to customers or clients of the Enterprise with whom Executive had contact within the twelve (12) month period ending on the day Executive’s employment terminates.

6.5 Enforcement of Restrictive Covenants.

 

  (a) Severability. Executive acknowledges and agrees that the restrictive covenants contained in this Article 6 (collectively, the “Covenants”) are reasonable and valid and do not impose limitations greater than those that are necessary to protect the business interests and confidential information of the Enterprise. Executive expressly agrees and consents that, and represents and warrants to the Company that, the Covenants will not prevent or unreasonably restrict or interfere with Executive’s ability to make a fair living after Executive’s employment terminates. The parties agree that the invalidity or unenforceability of any one or more of the Covenants, or any part thereof, will not affect the validity or enforceability of the other Covenants, all of which are inserted conditionally on their being valid in law. In case any one or more of the Covenants contained in this Agreement shall be held to be invalid, illegal or unenforceable in any respect for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable Covenant had never been contained herein, and specifically, the parties hereto agree that in the event any court of appropriate jurisdiction should determine that any portion or provision of any Covenant is invalid, unenforceable or excessively restrictive, the parties agree to request such court to rewrite such Covenant in order to make such Covenant legal, enforceable and acceptable to such court to the maximum extent permissible under the law actually applied to determine the validity, legality, enforceability or reasonableness of any such Covenant. The parties agree that the Covenants contained in this Agreement are severable and divisible; that none of such Covenants depends on any other Covenant for its enforceability; that such Covenants constitute enforceable obligations between the parties; that each such Covenant will be construed as an agreement independent of any other Covenant of this Agreement; and that the existence of any claim or cause of action by one party to this Agreement against the other party to this Agreement, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by any party to this Agreement of any such Covenant.

 

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  (b) Injunctive Relief. Executive hereby agrees that any remedy at law for any breach of any of the Covenants will be inadequate and that the Enterprise will be entitled to apply for injunctive relief in addition to any other remedy the Enterprise might have under this Agreement.

 

  (c) Claim for Damages. Executive acknowledges that, in addition to seeking injunctive relief, any of the entities comprising the Enterprise may bring a cause of action against Executive for any and all losses, liabilities, damages, deficiencies, costs (including, without limitation, court and arbitration costs), and expenses (including, without limitation, reasonable attorneys’ fees), incurred by the Enterprise and arising out of or due to any breach of any Covenant. In addition, either party may bring an action against the other for breach of any other provision of this Agreement.

 

  (d) Survival. To the extent applicable, the Covenants will survive the termination of this Agreement and/or the termination of Executive’s employment with the Company and its affiliates. In addition, the termination of this Agreement will not terminate any other obligations or rights that, by the specific terms of this Article 6, extend beyond such termination.

 

  (e) Tolling. The duration of the Covenants shall be extended for a period of time equal to any period of time in which Executive engages in conduct in violation of the Covenants.

 

  (f) Blue Penciling. Executive agrees that if any court finds that any provision in this Article 6 is overly broad such that it is unenforceable under applicable state law, the court may reform that provision to narrow its scope to the extent necessary to render it enforceable.

Article 7. Legal Remedies

7.1 Dispute Resolution. The Executive shall have the right and option to elect to have any good faith dispute or controversy arising under or in connection with this Agreement settled by litigation or arbitration. If arbitration is selected, such proceeding shall be conducted by final and binding arbitration before a panel of three (3) arbitrators in accordance with the laws and under the administration of the American Arbitration Association.

7.2 Payment of Legal Fees. In the event that it shall be necessary or desirable for the Executive to retain legal counsel and/or to incur other costs and expenses in connection with the enforcement of any or all of his rights under this Agreement, the Company shall pay (or the Executive shall be entitled to recover from the Company) on or before the December 31 of the calendar year following the calendar year in which the legal costs and expenses are incurred, any reasonable attorneys’ fees, costs, and expenses in connection with the good faith enforcement of the Executive’s rights (including the enforcement of any arbitration award) that arise during the Executive’s lifetime. This shall include, without limitation, court costs and attorney’s fees incurred by the Executive as a result of any good faith claim, action, or proceeding, including any such action against the Company arising out of, or challenging the validity or enforceability of, this Agreement or any provision hereof. This right to receive legal fees is not subject to liquidation or exchange for another benefit, and the amount of fees or expenses provided during one calendar year will not affect the amount of fees or expenses eligible for reimbursement or provided in any other calendar year.

 

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Article 8. Successors

The Company shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) of all or a significant portion of the assets of the Company (including without limitation any acquirer in a Change in Control event described in subsection (e)(iii) of Article 1 hereof) by agreement, in form and substance satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. Regardless of whether such agreement is executed, this Agreement shall be binding upon any successor in accordance with the operation of law and such successor shall be deemed the “Company” for purposes of this Agreement. Notwithstanding the foregoing, neither a change in control of a successor not deemed to be the “Company” under Section 1(i) hereto, nor the spin-off or public offering of all or any portion of the common stock of Enova International, Inc. or its successors or affiliates, shall be considered a “Change in Control.”

Article 9. Miscellaneous

9.1 Employment Status. This Agreement is not, and nothing herein shall be deemed to create, an employment contract between the Executive and the Company or any of its subsidiaries. The Executive acknowledges that the rights of the Company remain wholly intact to change or reduce at any time and from time to time his compensation, title, responsibilities, location, and all other aspects of the employment relationship, or to discharge him prior to a Change in Control (subject to such discharge possibly being considered a Qualifying Termination pursuant to Section 2.2).

9.2 Entire Agreement. This Agreement contains the entire understanding of the Company and the Executive with respect to the subject matter hereof. In addition, the payments provided for under this Agreement in the event of the Executive’s termination of employment shall be in lieu of any severance benefits payable under any severance plan, program, or policy of the Company to which he might otherwise be entitled.

9.3 Notices. All notices, requests, demands, and other communications hereunder shall be sufficient if in writing and shall be deemed to have been duly given if delivered by hand or if sent by registered or certified mail to the Executive at the last address he has filed in writing with the Company or, in the case of the Company, at its principal offices in Fort Worth, Texas.

9.4 Execution in Counterparts. This Agreement may be executed by the parties hereto in counterparts, each of which shall be deemed to be original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart.

9.5 Conflicting Agreements. The Executive hereby represents and warrants to the Company that his entering into this Agreement, and the obligations and duties undertaken by him hereunder, will not conflict with, constitute a breach of, or otherwise violate the terms of, any other employment or other agreement to which he is a party, except to the extent any such conflict, breach, or violation under any such agreement has been disclosed to the Board in writing in advance of the signing of this Agreement. In addition, to the extent this Agreement conflicts, or is inconsistent, with any other agreement entered into by and between Executive and the Company or any of its affiliates, including any agreement, provision, terms or covenants included in any ‘new hire’ paperwork, the parties agree that the most stringent provision shall control.

 

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9.6 Severability. In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of this Agreement are not part of the provisions hereof and shall have no force and effect. Notwithstanding any other provisions of this Agreement to the contrary, the Company shall have no obligation to make any payment to the Executive hereunder to the extent, but only to the extent, that such payment is prohibited by the terms of any final order of a federal or state court or regulatory agency of competent jurisdiction; provided, however, that such an order shall not affect, impair, or invalidate any provision of this Agreement not expressly subject to such order.

9.7 Modification. No provision of this Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in writing and signed by the Executive and by the Company, as applicable, or by the respective parties’ legal representatives or successors. Notwithstanding the foregoing, if any provision of this Agreement would cause compensation to be includible in the Executive’s income pursuant to Code Section 409A, then such provision shall be null and void, and the Company shall amend the Agreement in such a way as to cause substantially similar economic results without causing such inclusion; any such amendment shall be binding on the Executive.

9.8 Compensation Recovery. Notwithstanding anything in this Agreement to the contrary, in the event that the Company is required to materially restate its financial results due to the Company’s material noncompliance with any financial reporting requirement under Federal securities laws, excluding a restatement of such financial results due solely to a change in generally accepted accounting principles in the United States or such other accounting principles that may be adopted by the Securities and Exchange Commission and are or become applicable to the Company, the Committee may, in its discretion or as necessary to comply with applicable law, require the Executive to repay the Company an amount equal to all or any portion of any incentive compensation (including stock and stock-based awards) that has been paid, issued or granted to the Executive pursuant to any incentive compensation program within the two years preceding the date on which the Company is required to prepare an accounting restatement, to the extent that such amount was based on the erroneous data and exceeded the amount that would have been paid, issued or granted to the Executive under the accounting restatement. Such cancellation or repayment obligation shall be effective as of the date specified by the Committee. Any repayment obligation shall be satisfied in cash or in such other form of consideration, such as shares of stock of the Controlling Company, permitted by applicable law and acceptable to the Committee, and the Committee may provide for an offset to any future payments owed by the Controlling Company or its affiliates to the Executive if necessary to satisfy the repayment obligation; provided however, that if any such offset is prohibited under applicable law, the Committee shall not permit any such offset and may require immediate repayment by the Executive. Notwithstanding the foregoing, to the extent required to comply with applicable law, any applicable stock exchange listing requirements, and/or any compensation recovery or clawback policy adopted by the Controlling Company or any of its affiliates after the Effective Date, the Company may unilaterally amend this Section 9.8 and such amendment shall be binding on the Executive; provided, however, regardless of whether the Company makes such a unilateral amendment, the Executive shall be bound by any compensation recovery or clawback policy adopted by the Company after the Effective Date.

9.9 Applicable Law. To the extent not preempted by the laws of the United States, the laws of the State of Illinois shall be the controlling law in all matters relating to this Agreement without giving effect to principles of conflicts of laws.

 

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9.10 Code Section 409A Compliance. This Agreement is intended to comply with the requirements of Code Section 409A and guidance issued thereunder (with the severance pay and benefits to be exempt from, or in compliance with, Code Section 409A) and shall be construed accordingly. Any payments or distributions payable to Executive under this Agreement upon his Separation from Service of amounts classified as “nonqualified deferred compensation” for purposes of Code Section 409A, and not exempt from Code Section 409A, shall in no event be made or commence until 6 months after the date of such Separation from Service. Each payment under this Agreement (whether of cash, property or benefits) shall be treated as a separate payment for purposes of Code Section 409A. With respect to payments or benefits provided under this Agreement that are reimbursements or in-kind payments that are not exempt from Code Section 409A, the amount of such payment(s) or benefit(s) during any calendar year shall not affect payment(s) or benefit(s) provided in any other calendar year, and the right to any payment(s) or benefit(s) shall not be subject to liquidation or exchange for another benefit. Any reimbursements under this Agreement shall be paid as soon as practicable but no later than 90 days after Executive submits evidence of such expenses to the Company (which payment date shall in no event be later than the last day of the calendar year following the calendar year in which the expense was incurred).

9.11 Construction. This Agreement is intended to provide for severance payments and benefits and short-term deferrals exempt from Internal Revenue Code Section 409A, and shall be construed accordingly. To the extent that this Agreement provides for amounts not eligible for such exemptions, this Agreement is intended to comply with Internal Revenue Code Section 409A, and shall be construed accordingly.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

 

CASH AMERICA INTERNATIONAL, INC.
By:   /s/ James H. Graves
  James H. Graves,
  Chairman of the Cash America International, Inc. Management Development & Compensation Committee
EXECUTIVE:
/s/ David A. Fisher
David A. Fisher

[Signature Page for Executive Change-in-Control Severance and Restrictive Covenant Agreement]

 

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EX-10.4 5 d476608dex104.htm CONTINUED EMPLOYMENT AND SEPARATION AGREEMENT Continued Employment and Separation Agreement

Exhibit 10.4

CASH AMERICA INTERNATIONAL, INC.

1600 West Seventh Street

Fort Worth, Texas 76102

817.335.1100

January 29, 2013

Timothy S. Ho

740 W. Fulton #710

Chicago, IL 60661

 

Re: Continued Employment and Separation Agreement

Dear Tim:

This letter agreement and release of claims (this “Agreement”) sets forth the terms and conditions governing (i) your continued employment with Enova Financial Holdings, LLC (“Enova”), (ii) the termination of your employment relationship with Enova, and any relationship with Cash America International, Inc. (“CAI”), Enova International, Inc., and all of their affiliates and subsidiaries (collectively, the “Company”), and (iii) your release of the Company and related parties. Additionally, it is agreed that this Agreement sets forth the entire agreement between you and the Company (the “Parties”) and its predecessors, directors, officers, employees, agents and representatives relating to the separation of your employment.

Continued Employment. From the date of this letter through March 28, 2013, your employment with Enova and your relationship with the other companies comprising the Company will continue, with your primary duties to include (i) reporting to, and continuing to manage the business as directed by, the new chief executive officer of the Company’s e-commerce segment (the “New CEO”), (ii) introducing the New CEO to the Company’s e-commerce segment, its business and its employees, client base and suppliers; and (iii) helping to methodically transition your duties to the New CEO. During that period, you will continue to work on substantially a full time basis, and both you and the Company reasonably anticipate that, through March 28, 2013, you will continue to work more than 20% of the average amount you worked over the last 36 months such that you will not have a separation from service (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section409A”)).

For all periods through March 28, 2013, you will continue to receive the same compensation and benefits as is currently in effect, subject to any changes that may apply to all other senior executives of Enova.

Severance Arrangement. Except as expressly provided herein, this Agreement is not intended to alter the form or timing of any severance pay or benefits provided to you under any prior arrangement, including, but not limited to, the Cash America International, Inc. Severance Pay Plan for Executives (the “Severance Plan”) but is intended to provide for certain additional payments and benefits described herein. Your separation from the Company under this Agreement is an “Eligible Termination” for purposes of, and within the meaning of, Section 2(c) of the Severance Plan.


All of your employment by, and services for, the Company will cease, and you thereby will have a separation from service on, March 29, 2013 (your “Severance Date”). In consideration of your separation from service, you and the Company agree to the following:

 

(1) If you agree to and accept the terms contained in this Agreement, you must sign the Agreement in the space provided below and return one fully executed original of this Agreement to the Company by February 20, 2013, which date is more than 21 days after the date that this Agreement is being delivered to you. In addition, on March 29, 2013, you must sign the Release Agreement (a copy of which is attached hereto as Exhibit A), which date is more than 21 days after the date that this Agreement and the Release Agreement is being delivered to you. If you elect to sign this Agreement and the Release Agreement and return an original of each to the Company, you will have 7 days after you deliver the original of each of this Agreement and the Release Agreement to the Company during which you may revoke your acceptance. If you choose to revoke your acceptance of either this Agreement or the Release Agreement, you must notify the Company in writing, and the Company must receive the notification by the expiration of the applicable 7-day period. If you do not sign this Agreement and the Release Agreement within the period or on the date, respectively, specified above, or if you revoke your acceptance of either during the applicable revocation period described above, this Agreement will be of no further force or effect, and you will not be entitled to any of the payments or benefits described herein. The signed agreement and any revocation thereof should be sent via US mail or overnight courier to CAI’s home office address as shown on this Agreement, with attention to the Company’s General Counsel, or via telecopy to the Company’s General Counsel at 817.570.1647 (followed by mailing or overnighting the original to the address above).

 

(2) Your separation from all offices and positions held by you in the Company will be effective as your Severance Date.

 

(3) If you sign this Agreement and the Release Agreement in the manner described in paragraph (1) above and you do not thereafter revoke your acceptance, the Company will pay to you severance pay in the gross amount of $860,000.00 (“Salary Continuation Pay”), less applicable withholdings required by law. Consistent with the terms of Section 3(a)(ii)(B) of the Severance Plan, this Salary Continuation Pay will be paid to you as described below. The Salary Continuation Pay is for the 24-month period commencing on your Severance Date and ending in March 2015 (the “Severance Period”), and will be paid in substantially equal installments as salary continuation, beginning upon your Severance Date. Such installment payments shall be paid in accordance with the Company’s regular payroll procedures for other similarly-situated active employees. Notwithstanding the foregoing, any payment of severance pay shall be delayed until after the expiration of the Release Agreement’s revocation period described in paragraph (1) above, and any amount of severance pay otherwise due before the end of such revocation period shall be paid upon the day after the end of such period in a single lump-sum payment. In no event shall the first payment be made more than 74 days following your Severance Date. Each payment shall be considered a separate payment for purposes of Section 409A.

 

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(4) The Company will pay to you in a single lump sum an amount equal to the difference between (i) $24,807.69, which reflects the value of 3 weeks of vacation, and (ii) the value of any vacation you take between the date of this Agreement and March 28, 2013. This lump-sum amount will be paid to you within 30 days after your Severance Date.

 

(5) If (i) you sign this Agreement and the Release Agreement in the manner described in paragraph (1) above and you do not thereafter revoke your acceptance of either, and (ii) you elect to continue health coverage (i.e., medical, dental and vision benefits) under the Company’s group health plan pursuant to the continuation provisions of the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), then, during the first 18 months of your Severance Period while such coverage is in effect, the Company will reimburse you for the portion of the premium for group health plan coverage that you pay and that is in excess of what similarly-situated executives would pay for similar coverage under the Company’s group health plan during that period, all as provided under Section 3(a)(iii) of the Severance Plan. In addition, to the extent you would be entitled to COBRA during the last 6 months of your Severance Period if COBRA lasted 24 months (instead of 18 months), then the Company will allow you to continue your group health plan coverage under the Company’s group health plan pursuant the same rules and terms as would apply if COBRA had continued; and the Company will reimburse you for the portion of the premium for group health plan coverage that you pay and that is in excess of what similarly-situated executives would pay for similar coverage under the Company’s group health plan during that period. Also, the Company will allow you to continue your participation in the Company’s Medical Expense Reimbursement Plan (“MERP”) as long as you are participating in the Company’s group medical plan under COBRA or the COBRA-like coverage described in the preceding sentence. Because the reimbursement of the premiums for the group health plan benefits and the reimbursements under the MERP provided to you are discriminatory in favor of a highly compensated individual under Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”), the Company will report the amounts of the premium reimbursements and MERP benefits as taxable income on your Form W-2. Each of the reimbursements will be treated as a separate payment for purposes of Code Section 409A. The Company reserves the right to amend and/or terminate any of the group health plans and the MERP at any time.

 

(6) This Agreement provides for any and all payments to you for any reason associated with your employment with the Company up to and including your Severance Date. You will not be entitled to receive any amounts under any other plan, program or agreement with the Company (including, without limitation, incentive pay under the Company’s 2013 Short Term Incentive Plan or any other incentive plan, including any non-vested Units or Performance Units under the Cash America Net Holdings, LLC 2007 Long Term Incentive Plan, the Cash America Net Holdings, LLC 2008 Long Term Incentive Plan, or the Cash America International, Inc. First Amended and Restated 2004 Long-Term Incentive Plan (the “LTIP”) (including, but not limited to, any grant agreements issued under the LTIP that evidence unvested time-based and/or performance-based restricted stock units or any unvested cash-based performance units previously awarded to you, which agreements and unvested awards shall automatically terminate, forfeit and expire on the Separation Date), or any agreement or arrangement providing benefits or payments in the event of a change in corporate control (including the Executive Change-In-Control Severance Agreement previously executed by you and the Company, which Agreement shall also terminate on the Separation Date)); and all other benefits and perquisites that you are currently receiving will cease on your Severance Date. The foregoing will not, however, affect any vested benefits to which you are entitled after separation under the terms of any Company benefit or compensation plan in which you are a participant.

 

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(7) You agree not to say, write, do, authorize or otherwise create or publish anything that will in any way disparage the Company or any of its employees. You also agree not to interfere with the management of the Company through any contact with shareholders, directors, employees, vendors and others, and not to make any public or private statements or comments that may have the effect of disrupting operations of the Company in any way. The Company agrees not to say, write, do, authorize or otherwise create or publish anything that will in any way disparage you; provided, however, any disclosures requested or required by any court or governmental entity, including without limitation, the Securities and Exchange Commission, or any factual disclosures reasonably necessary to protect or defend the Company shall not be deemed to be disparaging.

 

(8) The Parties agree that the terms and conditions of this Agreement will be filed, and disclosed in filings, with the Securities Exchange Commission to the extent required. To the extent such disclosure is not required, the terms and conditions of this Agreement are to be held in strict confidence by you and characterized as “confidential information.” The Parties further agree that the terms and conditions of this Agreement will not be further disclosed to any other person or entity (with the exception of the Parties’ attorneys, accountants and your current spouse, provided such individuals agree to maintain the confidentiality requirements of this paragraph (8)), unless such party is required to do so by a valid order of a court of competent jurisdiction, or as required by law. Any disclosure of “confidential information” to any third-party not otherwise contemplated herein will be construed as a material breach of this Agreement.

 

(9) It is further agreed that you will return to the Company, on or before your Severance Date, all Company property currently in your possession, including without limitation, computers, PDAs, keys, credit cards, cellular phones, pagers and all papers, lists and other materials that relate to, or involve, the business of the Company and that are in your possession or control.

 

(10) You further agree to give up any claim to reinstatement with the Company. You also agree not to apply for re-employment with the Company or any related Company during the Severance Period. Following the expiration of the Severance Period, you may apply for employment and be evaluated along with all other qualified applicants in accordance with the Company’s hiring policies and procedures.

 

(11)

You acknowledge that, during the term of your employment, you have been privy to confidential and proprietary information of the Company. You agree to not disclose to any third party the trade secrets, proprietary information, marketing strategies, business strategies, business plans, pricing data, legal analyses, financial information, insurance information, customer lists, customer information, creditor files, processes, policies, procedures, research, lists, methodologies, specifications, software, software code, computer systems, software and hardware architecture and specifications, customer information systems, point of sale systems, management information systems, software design and development plans and materials, intellectual property, contracts, business records, technical

 

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  expertise and know-how, and other confidential and proprietary information and trade secrets of the Company (collectively, the “Property”), which were provided to you by the Company and are confidential and proprietary property of the Company. You further agree (i) that prior to the date you executed this Agreement, you did not intentionally harm, damage or destroy any of the Company’s Property, and (ii) not to use any Property to your personal benefit or the benefit of any third party. You also agree to return to the Company by your Severance Date all such Property which is tangible. Notwithstanding the foregoing, the Property protected hereunder does not include any data or information that has been disclosed to the public (except where such public disclosure has been made by you without authorization), that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. The restrictions in this provision are in addition to, and not in lieu of, any rights or remedies the Company may have available pursuant to the laws of the State of Illinois to prevent the disclosure of trade secrets and proprietary information. Your obligations under the nondisclosure provisions hereof (i) will apply to confidential information that does not constitute trade secrets for a period of 36 months after your Severance Date, and (ii) will apply to trade secrets until such Property no longer constitutes trade secrets.

 

(12) You agree that, for 24 months after your Severance Date, you will not, directly or indirectly, solicit, recruit or induce any employee, officer, agent or independent contractor of the Company to terminate such party’s engagement with the Company so as to work for any person or business which competes with the Company for talent; provided, the restrictions set forth in this provision (i) will only apply to employees, officers, agents or independent contractors with whom you had business contact during the 12-month period prior to your Severance Date, and (ii) will not apply to any such party that is at the time of contact no longer engaged by the Company and such party initiates contact with you with respect to any opportunity that you would otherwise be able to pursue without the breach of any other terms or covenants in this Agreement.

 

(13) You agree that, for 24 months after your Severance Date, you will not, on your own behalf or on behalf of any other person or entity (including without limitation any entity that you may form, join, consult with, provide services or assistance to or on behalf of, or otherwise become affiliated with), compete with the Company anywhere within the Territory by providing management or consulting services similar to those you provided to the Company with respect to any consumer finance products provided over the Internet or through storefronts or any services related to such products to the extent any of such consumer finance products or related services consist of, facilitate, support, or relate to, consumer finance products that carry an effective total cost of credit of greater than 36% per annum or any services related to any such products (“Consumer Finance Products and Services”); provided, however, Consumer Finance Products and Services do not include any e-commerce activities or business analytic activities that do not relate to, facilitate or support any Consumer Finance Products and Services. For purposes of this Agreement, the term “Territory” will mean any territory in which the Company offers Consumer Finance Products and Services on the Severance Date, plus any additional territory into which the Company has actively and directly sought to expand during the 12-month period preceding the Severance Date in which you were involved.

 

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(14) You agree that, for 24 months after your Severance Date, you will not, on your own behalf or on behalf of any other person or entity, solicit, initiate contact, call upon, initiate communication with or attempt to initiate communication with any customer or client of the Company or any representative of any customer or client of the Company, with a view to providing Company Products and Services to such clients or customers; provided, the restrictions set forth in this provision will apply only to customers or clients of the Company with whom you had contact within the 12-month period prior to your Severance Date.

 

(15) You acknowledge and agree that the provisions hereof relating to confidential and proprietary information, nonsolicitation of employees and agents, noncompetition, and nonsolicitation of customers and clients (collectively, the “Covenants”) are reasonable and valid and do not impose limitations greater than those that are necessary to protect the business interests and confidential information of the Company. You expressly agree and consent that, and represent and warrant to the Company that, the Covenants will not prevent or unreasonably restrict or interfere with your ability to make a fair living. You agree that the invalidity or unenforceability of any one or more of the Covenants, or any part thereof, will not affect the validity or enforceability of the other Covenants, all of which are inserted conditionally on their being valid in law. In case any one or more of the Covenants contained in this Agreement shall be held to be invalid, illegal or unenforceable in any respect for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable Covenant had never been contained herein. You also agree that in the event any court of appropriate jurisdiction should determine that any portion or provision of any Covenant is invalid, unenforceable or excessively restrictive, you and the Company will request such court to rewrite such Covenant in order to make such Covenant legal, enforceable and acceptable to such court to the maximum extent permissible under applicable law. You agree that the Covenants contained in this Agreement are severable and divisible; that none of such Covenants depends on any other Covenant for its enforceability; that such Covenants constitute enforceable obligations between you and the Company; that each such Covenant will be construed as an agreement independent of any other Covenant of this Agreement; and that the existence of any claim or cause of action by one party to this Agreement against the other party to this Agreement, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by any party to this Agreement of any such Covenant.

You agree that any remedy at law for any breach of the Covenants will be inadequate and that the Company will be entitled to apply for injunctive relief in addition to any other remedy the Company might have under this Agreement or applicable law.

You acknowledge that, in addition to seeking injunctive relief, the Company may cease all payments and reimbursements due to you under this Agreement and may bring a cause of action against you for any and all losses, liabilities, damages, deficiencies, costs (including, without limitation, court costs), and expenses (including, without limitation, reasonable attorneys’ fees), incurred by the Company and arising out of or due to any breach of any of the Covenants. In addition, you agree that either party may bring an action against the other for breach of any other provision of this Agreement.

 

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(16) This Agreement is intended to comply with the requirements of Section 409A and guidance issued thereunder (with some of the severance pay and benefits exempt from Section 409A and the remainder in compliance with Section 409A) and shall be construed accordingly. Any payments or distributions payable to you under this Agreement upon your “separation from service” (as defined for purposes of Section 409A) of amounts classified as “nonqualified deferred compensation” for purposes of Section 409A, and not exempt from Section 409A, shall in no event be made or commence until 6 months after the date of such separation from service. Each payment under this Agreement (whether of cash, property or benefits) shall be treated as a separate payment for purposes of Section 409A. With respect to payments or benefits provided under this Agreement that are reimbursements or in-kind payments that are not exempt from Section 409A, the amount of such payment(s) or benefit(s) during any calendar year shall not affect payment(s) or benefit(s) provided in any other calendar year, and the right to any payment(s) or benefit(s) shall not be subject to liquidation or exchange for another benefit. Any reimbursements under this Agreement shall be paid as soon as practicable but no later than 90 days after you submit evidence of such expenses to the Company (which payment date shall in no event be later than the last day of the calendar year following the calendar year in which the expense was incurred).

 

(17)

In consideration of the above, including the mutual agreements of the parties hereto and the payments to be made to you hereunder, the receipt and sufficiency of which are hereby acknowledged and confessed by you, you (on behalf of yourself and your successors and assigns) voluntarily and knowingly, fully, completely, and forever release the Company and its officers, directors, employees, stockholders, and legal successors and assigns of the Company (collectively, “Released Parties”) from all claims, charges, actions and causes of action, whether now known or unknown, which you now have, or at any other time had, or shall or may have against those Released Parties based upon or arising out of any matter, cause, fact, thing, act or omission whatsoever occurring at any time up to and including the date you sign this Agreement, including, but not limited to, any claims for claims based upon or arising under: express or implied contract; wages or benefits owed; covenants of fair dealing and good faith; interference with contract; option grants; wrongful discharge or termination; employment discrimination of any type; the Texas Commission on Human Rights Act (“TCHRA”), and any similar statute in other states; the Texas Payday Act, the Texas Labor Code, and any similar statute in other states; any claim of employment discrimination based on exercising rights under worker’s compensation laws; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (prohibiting discrimination on account of race, sex, national origin or religion); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (prohibiting discrimination on account of age) (“ADEA”); the Older Workers Benefit Protection Act (“OWBPA”); the Civil Rights Act of 1991; the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981; Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (ERISA); the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101-12213 (ADA); the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA); the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA); the Workers’ Adjustment and Retraining Notification Act (“WARN”); any and all state and federal statutes which prohibit discrimination or retaliation in employment based on any protected status (including, without limitation, national origin, race, sex, sexual orientation, disability, workers’ compensation status, or other protected category) and amendments to these statutes; the common law, negligence, gross negligence or any other tort claim, including

 

7


  but not limited to, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, defamation, assault, battery, invasion of privacy, false imprisonment, breach of contract, interference with a contract, interference with contractual relations, civil conspiracy, duress, promissory or equitable estoppel, defamation, fraud, misrepresentation, wrongful termination, violation of public policy, retaliation, personal injury, breach of fiduciary duty, loss of consortium, bad faith, and any federal, state or local laws, statutes, regulations, ordinances, or other similar provisions. You understand that you are not releasing any claims that arise after the date you sign this Agreement.

You understand that following the 7-day revocation period, this release will be final and binding. You promise that you, on behalf of yourself, any representative of yours and any person whose claims derive from yours, will not pursue any claim that you have settled by this release or file any lawsuit or other legal proceeding to assert any such claims and you understand and agree that you will not be entitled hereafter to pursue any claims arising out of any alleged violation of your rights while employed by the Company, including, but not limited to, claims for back pay, losses or other damages. If you break any of the promises set forth in the previous sentence, you agree to pay all of the Company’s costs and expenses (including reasonable attorneys’ fees) related to the defense of any claims except for claims arising under the OWBPA and the ADEA. Although you are releasing claims that you may have under the OWBPA and ADEA, you understand that you may challenge the knowing and voluntary nature of this release before a court, the Equal Employment Opportunity Commission (“EEOC”), or any other federal, state or local agency charged with the enforcement of any employment laws. You also understand that nothing in this release prevents you from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the EEOC or any other federal, state or local agency charged with the enforcement of any employment laws. You understand, however, that if you pursue a claim against the Company under the OWBPA and/or the ADEA to challenge the validity of this release and prevail on the merits of an ADEA claim, a court has the discretion to determine whether the Company is entitled to restitution, recoupment, or set off (hereinafter “reduction”) against a monetary award obtained by you in the court proceeding. A reduction never can exceed the amount you recover, or the consideration you received for signing this release, whichever is less. Furthermore, you give up your right to individual damages or remedies in connection with any administrative or judicial proceeding with respect to your employment or termination of employment with the Company. You also recognize that the Company may be entitled to recover costs and attorneys’ fees incurred by the Company as specifically authorized under applicable law.

 

(18) You on behalf of yourself, any representative of yours, and any person whose claims derive from yours, promises that no lawsuit or claim has been or will be filed based on any claims released by this Agreement. If such a lawsuit or claim has been or is filed, you agree to withdraw or dismiss such lawsuit or claims upon signing this Agreement; otherwise, you agree to pay all attorneys’ fees and court costs incurred by the Company or any other released party in defending against the lawsuit, claim or charge, along with other appropriate damages.

 

(19) This Agreement is not an admission on the Company’s part of any liability whatsoever or that it in any way has acted improperly or unlawfully. The Company specifically denies any liability or improper or unlawful conduct.

 

8


(20) If any claims are made by or against the Company which arise out of or relate to your employment with the Company, you agree that you will cooperate fully in the investigation and defense of such claims, including but not limited to preparation for and providing truthful testimony and in such event, to the extent allowed by law, the Company will reimburse you for your out-of-pocket expenses associated therewith and will compensate you for your documented time spent in connection therewith at a commercially reasonable hourly rate; provided, however, no such reimbursement or compensation will be payable if the action in question alleges or involves any fraud, bad faith or intentional misconduct on your part during your employment with the Company or if the reimbursements or compensation could, by the nature of the particular action in question, jeopardize the Company’s position in such action. Any reimbursements or compensation paid to you pursuant to this paragraph shall be subject to the requirements of Section 409(A).

 

(21) This Agreement is intended by you and the Company to be a legally valid and binding agreement. If any provision of this Agreement is found to be illegal, invalid or unenforceable, such term or provision shall be severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were never a part hereof; the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance; and in lieu of such illegal, invalid or unenforceable provision, there shall be added as part of this Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision, as may be possible and be legal, valid or enforceable.

 

(22) This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, United States, and venue for any action brought in connection with this Agreement shall lie in Cook County, Illinois, U.S.A.

The Company wishes you success in your future endeavors.

 

Very truly yours,
Enova Financial Holdings, LLC
By:   Enova Online Services, Inc., its sole member
  By:   Enova International, Inc., its sole shareholder
    By:   /s/ Daniel R. Feehan
      Daniel R. Feehan,
      Executive Chairman of the Board

 

9


 

I have read the foregoing Agreement, agree to its terms, and acknowledge receipt of a copy of same, and the sufficiency of the payments recited in it. I understand and acknowledge that I should seek counsel from an attorney with regard to all aspects of this Agreement (including, but not limited to the release contained in it) and that I have had a sufficient opportunity to do so. I hereby voluntarily enter into this Agreement effective as of January 29, 2013, with full knowledge of its meaning and significance. I acknowledge and warrant that I have been given a period of at least 21 days within which to consider this Agreement prior to executing it, if I so desire. This Agreement may be revoked by me for a period of 7 days following its execution. To be effective, the revocation must be in writing and received by the Company by the expiration of this seven-day period.

 

/s/ Timothy S. Ho
Timothy S. Ho
January 29, 2013
Date

 

10


EXHIBIT A

Release Agreement

In consideration of the severance pay and benefits payable to me pursuant to the terms of the letter agreement, dated January 29, 2013, regarding “Continued Employment and Separation Agreement” (the “Agreement”), I, Timothy S. Ho, do hereby agree to the following release as set forth in this “Release Agreement”:

On behalf of myself and my successors and assigns), I voluntarily and knowingly, fully, completely, and forever release Enova Financial Holdings, LLC (“Enova”), Cash America International, Inc. (“CAI”), Enova International, Inc., and all of their affiliates and subsidiaries (collectively, the “Company”) and the Company’s officers, directors, employees, stockholders, and legal successors and assigns (collectively, “Released Parties”) from all claims, charges, actions and causes of action, whether now known or unknown, which I now have, or at any other time had, or shall or may have against those Released Parties based upon or arising out of any matter, cause, fact, thing, act or omission whatsoever occurring at any time up to and including the date I sign this Release Agreement, including, but not limited to, any claims for claims based upon or arising under: express or implied contract; wages or benefits owed; covenants of fair dealing and good faith; interference with contract; option grants; wrongful discharge or termination; employment discrimination of any type; the Texas Commission on Human Rights Act (“TCHRA”), and any similar statute in other states; the Texas Payday Act, the Texas Labor Code, and any similar statute in other states; any claim of employment discrimination based on exercising rights under worker’s compensation laws; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (prohibiting discrimination on account of race, sex, national origin or religion); the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (prohibiting discrimination on account of age) (“ADEA”); the Older Workers Benefit Protection Act (“OWBPA”); the Civil Rights Act of 1991; the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981; Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (ERISA); the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101-12213 (ADA); the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA); the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA); the Workers’ Adjustment and Retraining Notification Act (“WARN”); any and all state and federal statutes which prohibit discrimination or retaliation in employment based on any protected status (including, without limitation, national origin, race, sex, sexual orientation, disability, workers’ compensation status, or other protected category) and amendments to these statutes; the common law, negligence, gross negligence or any other tort claim, including but not limited to, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, defamation, assault, battery, invasion of privacy, false imprisonment, breach of contract, interference with a contract, interference with contractual relations, civil conspiracy, duress, promissory or equitable estoppel, defamation, fraud, misrepresentation, wrongful termination, violation of public policy, retaliation, personal injury, breach of fiduciary duty, loss of consortium, bad faith, and any federal, state or local laws, statutes, regulations, ordinances, or other similar provisions. I understand that I am not releasing any claims that arise after the date I sign this Release Agreement.

 

11


I understand that I must sign this Release Agreement on March 29, 2013, which date is more than 21 days after the date that this Release Agreement was delivered to me. If I elect to sign this Release Agreement and return an original of it to the Company, I will have 7 days after I deliver the original of this Release Agreement to the Company during which I may revoke my acceptance. If I choose to revoke my acceptance of this Release Agreement, I must notify the Company in writing, and the Company must receive the notification by the expiration of the 7-day period. If I do not sign this Release Agreement on the date specified above, or if I revoke my acceptance of this Release Agreement during the revocation period described above, the Agreement will be of no further force or effect, and I will not be entitled to any of the payments or benefits described therein. The signed Release Agreement and any revocation thereof should be sent via US mail or overnight courier to Cash America International, Inc.’s home office address in Fort Worth, Texas, with attention to the Company’s General Counsel, or via telecopy to the Company’s General Counsel at 817.570.1647 (followed by mailing or overnighting the original to the address above).

I promise that I, on behalf of myself, any representative or mine and any person whose claims derive from mine, will not pursue any claim that I have settled by this release or file any lawsuit or other legal proceeding to assert any such claims and I understand and agree that I will not be entitled hereafter to pursue any claims arising out of any alleged violation of my rights while employed by the Company, including, but not limited to, claims for back pay, losses or other damages. If I break any of the promises set forth in the previous sentence, I agree to pay all of the Company’s costs and expenses (including reasonable attorneys’ fees) related to the defense of any claims except for claims arising under the OWBPA and the ADEA. Although I am releasing claims that I may have under the OWBPA and ADEA, I understand that I may challenge the knowing and voluntary nature of this release before a court, the Equal Employment Opportunity Commission (“EEOC”), or any other federal, state or local agency charged with the enforcement of any employment laws. I also understand that nothing in this release prevents me from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the EEOC or any other federal, state or local agency charged with the enforcement of any employment laws. I understand, however, that if I pursue a claim against the Company under the OWBPA and/or the ADEA to challenge the validity of this release and prevail on the merits of an ADEA claim, a court has the discretion to determine whether the Company is entitled to restitution, recoupment, or set off (hereinafter “reduction”) against a monetary award obtained by me in the court proceeding. A reduction never can exceed the amount I recover, or the consideration I received for signing this release, whichever is less. Furthermore, I give up my right to individual damages or remedies in connection with any administrative or judicial proceeding with respect to my employment or termination of employment with the Company. I also recognize that the Company may be entitled to recover costs and attorneys’ fees incurred by the Company as specifically authorized under applicable law.

I, on behalf of myself, any representative of mine and any person whose claims derive from mine, promise that no lawsuit or claim has been or will be filed based on any claims released by this Release Agreement or the Agreement. If such a lawsuit or claim has been or is filed, I agree to withdraw or dismiss such lawsuit or claims upon signing this Release Agreement; otherwise, I agree to pay all attorneys’ fees and court costs incurred by the Company or any other released party in defending against the lawsuit, claim or charge, along with other appropriate damages.

This Release Agreement is not an admission on the Company’s part of any liability whatsoever or that it in any way has acted improperly or unlawfully. The Company specifically denies any liability or improper or unlawful conduct.

 

12


This Release Agreement is intended by me and the Company to be a legally valid and binding agreement. If any provision of this Release Agreement is found to be illegal, invalid or unenforceable, such term or provision shall be severable, and this Release Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were never a part hereof; the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance; and in lieu of such illegal, invalid or unenforceable provision, there shall be added as part of this Release Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision, as may be possible and be legal, valid or enforceable.

This Release Agreement shall be construed and enforced in accordance with the laws of the State of Illinois, United States, and venue for any action brought in connection with this Release Agreement shall lie in Cook County, Illinois, U.S.A.

 

Timothy S. Ho
Date

 

13

EX-99.1 6 d476608dex991.htm PRESS RELEASE Press Release

Exhibit 99.1

 

LOGO

 

Additional Information:

Thomas A. Bessant, Jr.

(817) 335-1100

   For Immediate Release      

CASH AMERICA ANNOUNCES NEW CHIEF EXECUTIVE OFFICER OF

ENOVA INTERNATIONAL, INC.

Fort Worth, Texas (January 30, 2013) — Cash America International, Inc. (NYSE: CSH) today announced that its Board of Directors has appointed David A. Fisher as Chief Executive Officer of its wholly-owned subsidiary, Enova International, Inc. (“Enova”). Enova operates Cash America’s e-commerce segment, which offers specialty financial services to consumers over the Internet in the United States and three foreign countries.

“We are fortunate to have someone of David Fisher’s caliber and experience join our company to lead our rapidly growing e-commerce business, as it continues to innovate and broaden its product set and geographies,” said Daniel R. Feehan, President and Chief Executive Officer of Cash America. “David has held senior management positions in several high-growth businesses, most recently as the chief executive of optionsXpress Holdings, Inc. – an online broker providing products and services for investor education, strategy evaluation and trade execution. During his tenure, David led optionsXpress to become one of the fastest growing online brokerage firms, oversaw several successful acquisitions and an initial public offering, managed through numerous changes in the regulatory environment for the business, and oversaw the ultimate sale of the business to The Charles Schwab Corporation.”

“David’s experience as the chief executive of optionsXpress, as well as his experience in a variety of senior roles with The Charles Schwab Corporation, Potbelly Sandwich Works and Prism Financial Corporation provide an excellent foundation for leading a complex, highly-regulated company in the financial services industry, such as Enova,” added Mr. Feehan. “Additionally, David’s participation on the Board of Directors of InnerWorkings, Inc., a leading provider of global print management and promotional solutions to corporate clients with operations in 44 countries, provides David with valuable insight on international operations. The Cash America Board of Directors believes that David will provide excellent leadership to allow Enova to capitalize on its opportunities at an important stage in Enova’s evolution.”

Commenting on his new role with Enova, Mr. Fisher said, “I am honored and excited to lead Enova. I believe in the ability of Enova to achieve its vision of closing the world’s credit gap by delivering innovative and important financial services to consumers to help them meet their everyday needs.”

In addition, Cash America announced that Timothy S. Ho will step down as Division President of Enova effective on March 29, 2013. “Speaking for the Board, we very much appreciate Tim’s efforts and contributions to Enova’s business,” said Mr. Feehan. “Since joining the company over 7 years ago, Tim has been instrumental in the growth of Enova and the development of its strategies and technological footprint – allowing Enova to deliver consumer finance products and services to consumers online, both domestically and internationally. Tim has agreed to stay on board for a brief transitional period to assist David in his assumption of the leadership of Enova.”

Prior to joining Enova, Mr. Fisher, 43, was Chief Executive Officer of optionsXpress from October 2007 until The Charles Schwab Corporation acquired the business in September 2011. Following the acquisition, Mr. Fisher served as President of optionsXpress until March 2012. Mr. Fisher also served as either the President or as the Chief Financial Officer of optionsXpress from August 2004 to October 2007. Prior to joining optionsXpress, Mr. Fisher served as Chief Financial Officer of Potbelly Sandwich Works and before that as Chief Financial Officer of Prism Financial Corporation. In addition, Mr. Fisher has served on the Board of Directors of InnerWorkings, Inc. (NASDAQ: INWK) since November 2011 and is on the Board of Directors of GrubHub, Inc., a venture-backed company that provides mobile applications to enable consumers to order restaurant meals for delivery. Mr. Fisher also served on the Board of Directors of CBOE Holdings, Inc. (NASDAQ: CBOE), which is the holding company for the Chicago Board Options Exchange, from January 2007 until October 2011. Mr. Fisher received a bachelor’s degree in Finance from the University of Illinois at Champaign and a law degree from Northwestern University School of Law.


About the Company

As of December 31, 2012, Cash America International, Inc. (the “Company”) operated 969 total locations offering specialty financial services to consumers, which included the following:

 

   

831 lending locations in 22 states in the United States primarily under the names “Cash America Pawn,” “SuperPawn,” “Cash America Payday Advance,” and “Cashland;”

 

   

47 pawn lending locations in central and southern Mexico under the name “Cash America casa de empeño” (previously operated under the name “Prenda Fácil”); and

 

   

91 check cashing centers (all of which are unconsolidated franchised check cashing centers) operating in 15 states in the United States under the name “Mr. Payroll.”

Additionally, as of December 31, 2012, the Company offered consumer loans over the Internet to customers:

 

   

in 32 states in the United States at http://www.cashnetusa.com and http://www.netcredit.com;

 

   

in the United Kingdom at http://www.quickquid.co.uk and http://www.poundstopocket.co.uk;

 

   

in Australia at http://www.dollarsdirect.com.au; and

 

   

in Canada at http://www.dollarsdirect.ca.

For additional information regarding the Company and the services it provides, visit the Company’s websites located at:

 

http://www.cashamerica.com

http://www.enova.com

http://www.cashnetusa.com

http://www.netcredit.com

http://www.cashlandloans.com

http://www.quickquid.co.uk

  

http://www.poundstopocket.co.uk

http://www.dollarsdirect.com.au

http://www.dollarsdirect.ca

http://www.goldpromise.com

http://www.mrpayroll.com

http://www.primaryinnovations.net

Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995

This release contains forward-looking statements about the business, financial condition, operations and prospects of the Company. The actual results of the Company could differ materially from those indicated by the forward-looking statements because of various risks and uncertainties including, without limitation: changes in domestic and foreign pawn, consumer credit, tax and other laws and governmental rules and regulations applicable to the Company’s business or changes in the interpretation or enforcement thereof; the anticipated regulation of consumer financial products and services by the Consumer Financial Protection Bureau; acceptance by consumers, legislators or regulators of the negative characterization by the media and consumer activists with respect to certain of the Company’s loan products; the reorganization of the Company’s Mexico-based pawn operations; the deterioration of the political, regulatory or economic environment in foreign countries where the Company operates or in the future may operate; the actions of third parties who provide, acquire or offer products and services to, from or for the Company; changes in demand for the Company’s services and the continued acceptance of the online distribution channel by the Company’s online loan customers; fluctuations in the price of gold or a deterioration in economic conditions; changes in competition; the ability of the Company to open new locations in accordance with its plans or to successfully integrate newly acquired businesses into the Company’s operations; interest rate and foreign currency exchange rate fluctuations; the effect of any current or future litigation proceedings or any judicial decisions or rule-making that affect the Company, its products or its arbitration agreements; changes in the capital markets; changes in the Company’s ability to satisfy its debt obligations or to refinance existing debt obligations or obtain new capital to finance growth; a prolonged interruption in the Company’s operations of its facilities, systems and business functions, including its information technology and other business systems; security breaches, cyber attacks or fraudulent activity; the implementation of new, or changes in the interpretation of existing, accounting principles or financial reporting requirements; acts of God, war or terrorism, pandemics and other events; the effect of any of such changes on the Company’s business or the markets in which it operates; and other risks and uncertainties indicated in the Company’s filings with the Securities and Exchange Commission. These risks and uncertainties are beyond the ability of the Company to control, nor can the Company predict, in many cases, all of the risks and uncertainties that could cause its actual results to differ materially from those indicated by the forward-looking statements. When used in this release, terms such as “believes,” “estimates,” “should,” “could,” “would,” “plans,” “expects,” “anticipates,” “may,” “forecasts,” “projects” and similar expressions and variations as they relate to the Company or its management are intended to identify forward-looking statements. The Company disclaims any intention or obligation to update or revise any forward-looking statements to reflect events or circumstances occurring after the date of this release.

* * *

 

2

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