UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): June 5, 2006
ENCORE CAPITAL GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 000-26489 | 48-1090909 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 8875 Aero Drive, Suite 200, San Diego, California | 92123 | |
| (Address of Principal Executive Offices) | (Zip Code) |
(877) 445-4581
(Registrant’s telephone number, including area code)
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 (see General Instruction A.2. below):
| ¨ | 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 1.01 | Entry into a Material Definitive Agreement |
Amendment to Employment Agreement with Brandon Black
On June 5, 2006, the Compensation Committee of the Board of Directors (the “Compensation Committee”) of Encore Capital Group, Inc. (the “Company”) approved an Amendment (the “Black Amendment”) to the Employment Agreement between the Company and J. Brandon Black, the President and Chief Executive Officer of the Company, which was originally entered into on June 13, 2005 (the “Employment Agreement”). The Black Amendment is effective as of June 5, 2006.
The Black Amendment increases the amount of severance that will be received by Mr. Black if he is terminated without Cause or resigns for Good Reason within 12 months following a Change in Control (as each such term is defined in the Employment Agreement) from a cash payment equal to 150% of the sum of his annual base salary and average annual bonus to a cash payment equal to 200% of the sum of his annual base salary and average annual bonus, to be paid in a lump sum. Any severance payments under the Employment Agreement (as amended) are dependent upon Mr. Black executing a release and continuing to be bound by certain restrictive covenants, including noncompetition, nonsolicitation, and confidentiality covenants.
The Black Amendment also provides for an additional cash payment to be paid to Mr. Black if there is a Change in Control prior to June 5, 2007, subject to his continued employment with the Company on the date of the Change in Control. The amount of Mr. Black’s potential cash award is equal to 100% of his annual base salary, which is currently $385,000.
The Black Amendment is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference into this Section 1.01.
Amendment to Severance Agreement with Paul Grinberg
On June 5, 2006, the Compensation Committee approved an Amendment (the “Grinberg Amendment”) to the Severance Agreement between the Company and Paul Grinberg, the Chief Financial Officer of the Company, which was originally entered into on September 20, 2004 (the “Severance Agreement”). The Grinberg Amendment is effective as of June 5, 2006.
The Grinberg Amendment provides that if he is terminated without Cause or resigns for Good Reason within 12 months following a Change of Control (as each such term is defined in the Severance Agreement), he will be entitled to receive a cash payment equal to 150% of the sum of his annual base salary and average annual bonus, to be paid in accordance with the Company’s usual payroll practices over the 18 month period immediately following such termination. Any severance payments under the Severance Agreement (as amended) are dependent upon Mr. Grinberg executing a release and continuing to be bound by certain restrictive covenants, including noncompetition, nonsolicitation, confidentiality and nondisparagement covenants. Any severance payments being paid pursuant to the Severance Agreement (as amended) will automatically cease in the event Mr. Grinberg materially breaches any of the restrictive covenants described above.
The Amendment also provides for an additional cash payment to be paid to Mr. Grinberg if there is a Change in Control prior to June 5, 2007, subject to his continued employment with the Company on the date of the Change in Control. The amount of Mr. Grinberg’s potential cash award is equal to 100% of his annual base salary, which is currently $260,000.
The Grinberg Amendment is attached as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference into this Section 1.01.
Severance and Retention Agreements
On June 5, 2006, the Compensation Committee approved Severance and Retention Agreements for each of Robin R. Pruitt, George Brooker, Ron Eckhardt and Glen Freter, the General Counsel, the Vice President, Finance, the Executive Vice President, Operations and the Vice President and Controller of the Company, respectively (the “Executives”). The terms and conditions of each Severance and Retention Agreement are substantially the same, except as otherwise described below. The Severance and Retention Agreements with each of the Executives are effective as of June 5, 2006. Pursuant to the Severance and Retention Agreement, if the Executive is terminated without Cause or resigns for Good Reason within 12 months following a Change in Control (as each such term is defined in the Severance and Retention Agreement), he or she is entitled to salary continuation for a period of 12 months immediately following the date of termination. Any severance payments under these agreements are dependent upon the Executive executing a release and continuing to be bound by certain restrictive covenants, including noncompetition, nonsolicitation, confidentiality and nondisparagement covenants. Any severance payments being paid pursuant to these agreements will automatically cease in the event the Executive materially breaches any of the restrictive covenants described above.
In addition, pursuant to the terms of the Severance and Retention Agreement, if a Change in Control occurs prior to June 5, 2007, each of the Executives is entitled to receive a cash award, subject to the Executive’s continued employment with the Company on the date of the Change in Control, in an amount equal to a stated percentage of the Executive’s highest annual rate of base salary during the period commencing one year prior to the Change in Control and ending on the date of payment of the cash award. Based on current annual base salary rates, the amount of the potential cash award for Ms. Pruitt and Mr. Brooker is $112,476 and $82,500, respectively, which is equal to 50% of their respective annual base salaries. Based on current annual base salary rates, the amount of the potential cash award for Messrs Eckhardt and Freter is $64,063 and $50,000, respectively, which is equal to 25% of their respective annual base salaries.
The Form of Severance and Retention Agreement is attached as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated by reference into this Section 1.01.
Payment of Retainer to Members of the Special Committee
On June 5, 2006 the Company issued a press release announcing that the board of directors had formed a Special Committee to consider strategic alternatives. The Special Committee is composed of Barry R. Barkley, Eric D. Kogan, Alexander Lemond and Richard A. Mandell. The Special Committee was authorized by the board of directors to identify and evaluate various strategic alternatives to enhance stockholder value, including the potential sale of the Company.
On June 7, the board of directors approved (i) the payment to each member of the Special Committee other than the Chairman of the Special Committee of a retainer in an amount equal to $50,000 and (ii) the payment to the Chairman of the Special Committee of a retainer in an amount equal to $100,000, in full payment for all services performed by each member of the
Special Committee in connection with their performance of their duties as a member of the Special Committee. The board of directors further approved the reimbursement of expenses incurred by the members of the Special Committee in connection with their service on the Special Committee in accordance with the Company’s regular policies.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit Number |
Description | |
| 10.1 | Amendment One dated as of June 5, 2006 to Employment Agreement between the Company and J. Brandon Black | |
| 10.2 | Amendment One dated as of June 5, 2006 to Severance Agreement between Midland Credit Management, Inc. and Paul Grinberg | |
| 10.3 | Form of Change of Control Severance and Retention Agreement between the Company and certain executives | |
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 thereunto duly authorized.
| ENCORE CAPITAL GROUP, INC. | ||||
| Date: June 9, 2006 | /s/ Paul Grinberg | |||
| Paul Grinberg Executive Vice President, Chief Financial Officer and Treasurer | ||||
EXHIBIT INDEX
| Exhibit | Description | |
| 10.1 | Amendment One dated as of June 5, 2006 to Employment Agreement between the Company and J. Brandon Black | |
| 10.2 | Amendment One dated as of June 5, 2006 to Severance Agreement between Midland Credit Management, Inc. and Paul Grinberg | |
| 10.3 | Form of Change of Control Severance and Retention Agreement between the Company and certain executives | |
Exhibit 10.1
AMENDMENT ONE TO
EMPLOYMENT LETTER
This amendment (the “Amendment”) to the employment letter entered into by and between Encore Capital Group, Inc., a Delaware corporation (the “Company”), and J. Brandon Black (the “Executive”), dated as of June 13, 2005 (the “Employment Letter”), is effective as of June 5, 2006. Capitalized terms not defined herein shall have the meaning set forth in the Employment Letter.
W I T N E S S E T H :
WHEREAS, the Company and the Executive have entered into the Employment Letter, which provides for the terms and conditions of the Executive’s employment with the Company; and
WHEREAS, the Company and the Executive desire to amend the Employment Letter as provided herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
| 1. | Section 9 of the Employment Letter is amended to delete the number “150%” in clauses (i) and (ii) of the first sentence and add in substitution thereof the number “200%”. |
| 2. | Section 9 of the Employment Letter is further amended to add the following two sentences as the last two sentences of the Section: |
If you remain employed through the consummation of a Change of Control, you shall receive a lump sum payment equal to 100% of your Base Salary in effect as of the effective date of the Change of Control (the “Retention Bonus”). The Retention Bonus shall be paid to you within ten (10) days following the consummation of the Change of Control.
| 3. | Section 12 of the Employment Letter is amended to add “(i)” immediately prior to the words “engage or be engaged” in the third sentence of the Section. |
| 4. | Section 12 of the Employment Letter is further amended to add the following provision immediately after the words “Collection Business” at the end of the third sentence of the Section: |
or (ii) directly or indirectly (A) solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company or any subsidiary at any time on or after the date of termination (unless more than six (6) months shall
have elapsed between the last day of such person’s employment by the Company and any subsidiary and the first date of such solicitation or hiring) or (B) induce or attempt to induce any employee of the Company or any subsidiary to leave the employ thereof or in any way interfere with the relationship between the Company or any subsidiary and any employee thereof.
| 5. | Section 12 of the Employment Letter is further amended to add the following sentence immediately prior to the last sentence of the Section. |
Upon a breach of the duties and obligations contained in this Section 12, your right to receive severance payments being made by the Company pursuant to this Agreement shall immediately cease and the Company’s obligation to make such payments under this Agreement shall immediately terminate as of the date you enter into such employment or other relationships as described in this Section 12.
| 6. | All other provisions of the Employment Letter shall remain unchanged and in full force and effect. |
| 7. | This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| EXECUTIVE | ENCORE CAPITAL GROUP, INC. | |||||||
| By: | /s/ J. Brandon Black | By: | /s/ Robin R. Pruitt | |||||
| J. Brandon Black | Title: | Senior Vice President | ||||||
Exhibit 10.2
AMENDMENT ONE TO
SEVERANCE LETTER
This amendment (the “Amendment”) to the Severance Letter entered into by and between Midland Credit Management, Inc. (the “Company”), a wholly owned subsidiary of Encore Capital Group, Inc., a Delaware corporation, and Paul Grinberg (the “Executive”) dated as of September 20, 2004 (the “Severance Letter”), is effective as of June 5, 2006. Capitalized terms not defined herein shall have the meaning set forth in the Severance Letter.
W I T N E S S E T H :
WHEREAS, the Company and the Executive have entered into the Severance Letter, which provides for certain payments upon the termination of the Executive’s employment with the Company; and
WHEREAS, the Company and the Executive desire to amend the Severance Letter as provided herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
| 1. | Section 4 of the Severance Letter shall be amended to delete the first two sentences and add in substitution thereof the following: |
If you are terminated without Cause or resign for Good Reason within 12 months following a Change of Control, you will be entitled to a cash severance amount equal to 150% of (i) your highest annual rate of base salary during the 12-month period immediately prior to your date of termination plus (ii) the greater of (A) the average of the most recent two annual bonuses actually paid to you prior to the Change of Control or (B) your target annual bonus for the year in which the Change of Control occurs, paid in equal installments over the eighteen month period commencing with the first regular payroll date following the date of termination, in accordance with the Company’s normal payroll practices; provided that, if necessary to avoid tax penalties under Section 409A of the Internal Revenue Code of 1986, as amended, the commencement of such payments shall be delayed until the first regular payroll date which occurs more than six months following the date of termination, with the first of such payments including all payments which would have been made during the period of such delay without regard thereto, without interest.
| 2. | Section 6 shall be added to the Severance Letter which shall be read in its entirety as follows: |
If you remain employed through the consummation of a Change of Control, you shall receive a lump sum payment equal to 100% of your highest annual rate of base salary
during the period commencing one year prior to the Change of Control and ending on the date in which the Change of Control is consummated. Such retention bonus shall be paid within ten (10) days following the consummation of the Change of Control.
| 3. | Section 7 shall be added to the Severance Letter which shall be read in its entirety as follows: |
Restrictive Covenants.
(a) Cessation of Rights to Certain Future, Contingent Payments Upon Entering Competitive Employment. If you, during the one (1) year period commencing on and following the date of termination (whether prior to or following a Change of Control), directly or indirectly, without the prior written consent of the Board, becomes employed by, or acts as a consultant to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise, of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in any business in which the Company or any Subsidiary was engaged, or in which any of them had taken demonstrable steps to become engaged, at the date of termination, in the same geographical area in which any of them engage, or are planning on becoming engaged, in such business (other than by beneficial ownership of up to 2% of the outstanding voting stock of a publicly-traded company that is or owns such a competitor), your right to receive severance payments then being made by the Company pursuant to this Severance Letter shall immediately cease and the Company’s obligation to make such payments under this Severance Letter shall immediately terminate as of the date you enter into such employment or other relationships as described in this Section 7.
(b) Non-Solicitation. You agree that for one (1) year commencing on and following the date of termination (whether prior to or following a Change of Control), you will not directly or indirectly (i) solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company or any Subsidiary at any time on or after the date of termination (unless more than six (6) months shall have elapsed between the last day of such person’s employment by the Company and any Subsidiary and the first date of such solicitation or hiring) or (ii) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ thereof or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof.
(c) Non-Disclosure of Confidential Information. You recognize that the services you perform for the Company and its affiliates are special, unique and extraordinary in that you may acquire confidential information, trade secrets or other competitive information concerning the operations of the Company and its affiliates, the use or disclosure of which could cause the Company and its affiliates substantial loss and damages which could not be readily calculated, and for which no remedy at law would be adequate. Accordingly, you agree that you will not at any time during your employment with the Company or any Subsidiary or thereafter, except in performance of your obligations thereto, disclose, either directly or indirectly, any Confidential Information (as hereinafter defined) that you may learn by reason of his association with the Company and its affiliates. The term “Confidential Information” shall mean any past,
present or future confidential or secret plans, programs, documents, agreements, internal management reports, financial information or other material relating to the business, strategies, services or activities of the Company and its affiliates, including, without limitation, information with respect to the Company’s and its affiliates’ operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships (including leases), regulatory status, compensation paid to employees or other terms of employment, and trade secrets, market reports, customer investigations, customer lists and other similar information that is proprietary information of the Company or any of its affiliates. Notwithstanding the foregoing, you may disclose such Confidential Information when required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Company and/or its affiliates, as the case may be, or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order you to divulge, disclose or make accessible such information; provided, further, that in the event that you are ordered by any such court or other government agency, administrative body or legislative body to disclose any Confidential Information, you shall (i) promptly notify the Company of such order, (ii) at the written request of the Company, diligently contest such order at the sole expense of the Company as expenses occur and (iii) at the written request of the Company, seek to obtain, at the sole expense of the Company, such confidential treatment as may be available under applicable laws for any information disclosed under such order.
(d) Non-disparagement. You agree (whether during or after your employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Company or the officers or directors of the Company other than to the extent reasonably necessary in order to (i) assert a bona fide claim against the Company arising out of your employment with the Company, or (ii) respond in a truthful and appropriate manner to any legal process or give truthful and appropriate testimony in a legal or regulatory proceeding.
(e) Mutual Dependence of Covenants and Condition Subsequent. You covenant and agree to be bound by the restrictive covenants and agreements contained in this Section 7 to the maximum extent permitted by Delaware law, it being the intent and spirit of the parties that the restrictive covenants and agreements contained in this Severance Letter shall be valid and enforceable in all respects, and, subject to the terms and conditions of this Severance Letter, your compliance with the covenants contained in Section 7 (a) is mutually dependent upon and a condition subsequent to the Company’s obligation to make the payments described in this Severance Letter (as amended) and such payments shall immediately cease upon any breach of Section 7. Likewise, if you commence any action in court or in arbitration challenging the validity of, seeking to invalidate or otherwise seeking some sort of declaration that the covenants and agreements in Section 7(a) are void, voidable or invalid, the Company’s obligations to make the payments described in this Severance Letter shall immediately cease as of the time of the commencement of such action or proceeding. If the Company does not discover your breach of Section 7(a) or the commencement of any such action or arbitration proceedings until after one or more payments under this Severance Letter have been made to you, you shall be obligated to
immediately return all such payments to the Company that were paid and received after the breach of Section 7(a).
(f) Remedies Upon Breach. If you breach the provisions of Section 7(b), (c) or (d), the Company shall have the right to have such restrictive covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach of such restrictive covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy for such injury. Accordingly, the Company shall be entitled to injunctive relief to enforce the terms of such restrictive covenants and to restrain you from any violation thereof. The rights and remedies set forth in this Section 7(f) shall be independent of all other others rights and remedies available to the Company for a breach of such restrictive covenants, and shall be severally enforceable from, in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
| 4. | Section 8 shall be added to the Severance Letter which shall be read in its entirety as follows: |
Survival. The respective obligations and benefits afforded to the Company and you as provided in Sections 4 (to the extent that payments or benefits are owed as a result of a termination of employment that occurs during the term of the Severance Letter (as amended)) and 7 of the Severance Letter (as amended) shall survive the termination of this Severance Letter.
| 5. | Section 9 shall be added to the Severance Letter which shall be read in its entirety as follows: |
Dispute Resolution. You and the Company agree that any controversy or claim arising out of or relating to this Severance Letter (as amended) (other than a controversy under Section 7 of this Severance Letter), or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Employment Arbitration Rules then in effect. Venue for any arbitration pursuant to this Severance Letter will lie in San Diego, California. One of the arbitrators shall be appointed by the Company, one shall be appointed by you and the third shall be appointed by the first two arbitrators. If the first two arbitrators cannot agree on the third arbitrator within 30 days following the appointment of the second arbitrator, then the third arbitrator shall be appointed by the Association. All three arbitrators shall be experienced in the resolution of disputes under employment agreements for senior executives of major corporations. Any award entered by the arbitrators shall be final, binding and nonappealable and judgment may be entered thereon by either party in accordance with applicable law in any court of competent jurisdiction. This arbitration provision shall be specifically enforceable. The arbitrators shall have no authority to modify any provision of this Severance Letter or to award a remedy for a dispute involving this Severance Letter other than a benefit specifically provided under or by virtue of the Severance Letter. Each party shall be responsible for its own expenses relating to the conduct of the arbitration (including reasonable attorneys’ fees and expenses). The Company shall pay the fees of the American Arbitration Association and the arbitrators, if applicable.
| 6. | Section 9 shall be added to the Severance Letter which shall be read in its entirety as follows: |
GOVERNING LAW; CONSENT TO JURISDICTION. THIS SEVERANCE LETTER WILL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS OF ANY JURISDICTION WHICH WOULD CAUSE THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF DELAWARE. ANY ACTION TO ENFORCE THIS SEVERANCE LETTER (OTHER THAN AN ACTION WHICH MUST BE BROUGHT BY ARBITRATION PURSUANT TO SECTION 14) MUST BE BROUGHT IN, AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF, A COURT SITUATED IN NEW YORK, NEW YORK. EACH PARTY HEREBY WAIVES THE RIGHTS TO CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.
| 7. | All other provisions of the Severance Letter shall remain unchanged and in full force and effect. |
| 8. | This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| EXECUTIVE | Midland Credit Management, Inc. | |||||||
| By: | /s/ Paul Grinberg | By: | /s/ J. Brandon Black | |||||
| Paul Grinberg | Title: | President | ||||||
Exhibit 10.3
CHANGE IN CONTROL SEVERANCE AND RETENTION AGREEMENT
This CHANGE IN CONTROL SEVERANCE AND RETENTION AGREEMENT (as modified, extended or supplemented from time to time, this “Agreement”) is entered into as of June 5, 2006 (the “Effective Date”) by and between Encore Capital Group, Inc., a Delaware corporation (the “Company”), and ______________ (“Executive”).
1. Definitions. As used in this Agreement and unless otherwise defined herein, capitalized terms will have the respective meanings set forth in Appendix A.
2. Term of Agreement. This Agreement shall be effective on the date hereof and shall continue in effect until the first anniversary of the Effective Date if no Change in Control has occurred by that time, or until the end of the twelve month period following a Change in Control, if a Change in Control has occurred prior to the first anniversary of the Effective Date.
3. Payments Upon Termination of Employment.
(a) If during the Termination Period the employment of Executive shall terminate pursuant to a Qualifying Termination, then the Company shall provide to Executive:
(1) Within ten (10) days following the Date of Termination a lump-sum cash amount equal to the Executive’s base salary through the Date of Termination and any bonus amounts which have become payable, to the extent not previously paid or deferred; plus
(2) Subject to Section 3(c) below, a cash severance amount equal to one times Executive’s highest annual rate of base salary during the 12-month period immediately prior to Executive’s Date of Termination, paid in equal installments over the one-year period commencing with the first regular payroll date following the Date of Termination in accordance with the Company’s normal payroll practices; provided that, if necessary to avoid tax penalties under Section 409A of the Internal Revenue Code of 1986, as amended, the commencement of such payments shall be delayed until the first regular payroll date which occurs more than six months following the Date of Termination, with the first of such payments including all payments which would have been made during the period of such delay without regard thereto, without interest.
(b) If during the Termination Period the employment of Executive shall terminate other than by reason of a Qualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination, a lump-sum cash amount equal to Executive’s base salary through the Date of Termination and any bonus amounts which have become payable, to the extent not previously paid or deferred.
(c) Executive acknowledges and agrees that any and all payments to which Executive may become entitled under Section 3(a)(2) above are conditioned upon and
subject to Executive’s execution of, and not having revoked within any applicable revocation period, a general release and waiver, in such reasonable and customary form as shall be prepared by the Company, of all claims Executive may have against the Company and its directors, officers, subsidiaries and affiliates, except as to (i) matters covered by provisions of this Agreement that expressly survive the termination of this Agreement, (ii) rights to indemnification and insurance under the Charter, By-Laws and directors and officers insurance policies maintained by the Company or any Subsidiary and (iii) rights to which Executive is entitled by virtue of his participation in the employee benefit plans, policies and arrangements of the Company or any Subsidiary.
4. Retention Bonus. If Executive remains employed through the consummation of a Change in Control, he shall receive a lump sum payment of the Retention Bonus within ten (10) days following the consummation of the Change in Control.
5. Withholding Taxes. The Company may withhold from all payments due to Executive (or his beneficiary or estate) hereunder all taxes which, by applicable federal, state, local or other law, the Company is required to withhold therefrom.
6. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle Executive to continued employment with the Company or any Subsidiary, and if Executive’s employment shall terminate prior to a Change in Control, Executive shall have no further rights under this Agreement other than as stated in Section 4; provided, however, that any termination of Executive’s employment during the Termination Period shall be subject to all of the provisions of this Agreement.
7. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any reorganization, merger or consolidation involving the Company (each, a “Business Combination”). In the event of any Business Combination, the provisions of this Agreement shall be binding upon the person resulting from such Business Combination (the “Surviving Person”), and the Surviving Person shall be treated as the Company hereunder.
(b) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive shall die while any amounts would be payable to Executive hereunder had Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by Executive to receive such amounts or, if no person is so appointed, to Executive’s estate.
8. Notice. For purposes of this Agreement all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (1) on the date of delivery if delivered personally or by facsimile upon confirmation of receipt, (2) on the first business day following the date of dispatch if delivered by a recognized next-day courier service or (3) five days after deposit in the United States mail,
certified and return receipt requested, postage prepaid. All such notices and communications shall be delivered as set forth below.
If to Executive, to the home address of Executive
last appearing in the Company’s records.
If to the Company:
Encore Capital Group, Inc.
8875 Aero Drive
Suite 200
San Diego, California 92123
Attn: General Counsel
with a copy addressed to the attention of the General Counsel of the Company at the above address,
or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
9. Full Settlement. In the event of a Qualifying Termination, the Company’s obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall be in lieu and in full settlement of all other severance payments to Executive under any other severance or employment agreement between Executive and the Company. The Company’s obligations hereunder shall not be affected by any set-off, counterclaim, recoupment defense or other claim, right or action which the Company may have against Executive or others. In no event shall Executive be obligated to seek other employment or take other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.
10. Employment with Subsidiaries. Employment with the Company for purposes of this Agreement shall include employment with any Subsidiary.
11. Restrictive Covenants.
(a) Cessation of Rights to Certain Future, Contingent Payments Upon Entering Competitive Employment. If Executive, during the one (1) year period commencing on and following the Date of Termination (whether prior to or following a Change in Control), directly or indirectly, without the prior written consent of the Board, becomes employed by, or acts as a consultant to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise, of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in any business in which the Company or any Subsidiary was engaged, or in which any of them had taken demonstrable steps to become engaged, at the Date of Termination, in the same geographical area in which any of them engage, or are planning on becoming engaged, in such business (other than by beneficial ownership of up to 2% of the outstanding voting stock of a publicly-traded company that is or owns such a competitor), Executive’s right to receive severance payments then being made by the Company pursuant to Section 3(a)(2) shall immediately cease and the Company’s obligation to make such
payments under Section 3(a)(2) shall immediately terminate as of the date Executive enters into such employment or other relationships as described in this Section 11(a).
(b) Non-Solicitation. Executive agrees that for one (1) year commencing on and following the Date of Termination (whether prior to or following a Change in Control), Executive will not directly or indirectly (i) solicit or hire or encourage the solicitation or hiring of any person who was an employee of the Company or any Subsidiary at any time on or after the Date of Termination (unless more than six (6) months shall have elapsed between the last day of such person’s employment by the Company and any Subsidiary and the first date of such solicitation or hiring) or (ii) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ thereof or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof.
(c) Non-Disclosure of Confidential Information. Executive recognizes that the services Executive performs for the Company and its affiliates are special, unique and extraordinary in that Executive may acquire confidential information, trade secrets or other competitive information concerning the operations of the Company and its affiliates, the use or disclosure of which could cause the Company and its affiliates substantial loss and damages which could not be readily calculated, and for which no remedy at law would be adequate. Accordingly, Executive agrees that Executive will not at any time during Executive’s employment with the Company or any Subsidiary or thereafter, except in performance of Executive’s obligations thereto, disclose, either directly or indirectly, any Confidential Information (as hereinafter defined) that Executive may learn by reason of his association with the Company and its affiliates. The term “Confidential Information” shall mean any past, present or future confidential or secret plans, programs, documents, agreements, internal management reports, financial information or other material relating to the business, strategies, services or activities of the Company and its affiliates, including, without limitation, information with respect to the Company’s and its affiliates’ operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships (including leases), regulatory status, compensation paid to employees or other terms of employment, and trade secrets, market reports, customer investigations, customer lists and other similar information that is proprietary information of the Company or any of its affiliates. Notwithstanding the foregoing, Executive may disclose such Confidential Information when required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Company and/or its affiliates, as the case may be, or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order Executive to divulge, disclose or make accessible such information; provided, further, that in the event that Executive is ordered by any such court or other government agency, administrative body or legislative body to disclose any Confidential Information, Executive shall (i) promptly notify the Company of such order, (ii) at the written request of the Company, diligently contest such order at the sole expense of the Company as expenses occur and (iii) at the written request of the Company, seek to obtain, at the sole expense of the Company, such confidential treatment as may be available under applicable laws for any information disclosed under such order.
(d) Non-disparagement. The Executive agrees (whether during or after the Executive’s employment with the Company) not to issue, circulate, publish or utter any
false or disparaging statements, remarks or rumors about the Company or the officers or directors of the Company other than to the extent reasonably necessary in order to (i) assert a bona fide claim against the Company arising out of the Executive’s employment with the Company, or (ii) respond in a truthful and appropriate manner to any legal process or give truthful and appropriate testimony in a legal or regulatory proceeding.
(e) Mutual Dependence of Covenants and Condition Subsequent. Executive covenants and agrees to be bound by the restrictive covenants and agreements contained in this Section 11 to the maximum extent permitted by Delaware law, it being the intent and spirit of the parties that the restrictive covenants and agreements contained in this Agreement shall be valid and enforceable in all respects, and, subject to the terms and conditions of this Agreement, Executive’s compliance with the covenants contained in Section 11(a) is mutually dependent upon and a condition subsequent to the Company’s obligation to make the payments described in Section 3(a)(2) of this Agreement and such payments shall immediately cease upon any breach of Section 11(a). Likewise, if Executive commences any action in court or in arbitration challenging the validity of, seeking to invalidate or otherwise seeking some sort of declaration that the covenants and agreements in Section 11(a) are void, voidable or invalid, the Company’s obligations to make the payments described in Section 3(a)(2) of this Agreement shall immediately cease as of the time of the commencement of such action or proceeding. If the Company does not discover Executive’s breach of Section 11(a) or the commencement of any such action or arbitration proceedings until after one or more payments under Section 3(a)(2) have been made to Executive, Executive shall be obligated to immediately return all such payments to the Company that were paid and received after the breach of Section 11(a).
(f) Remedies Upon Breach. If the Executive breaches the provisions of Sections 11(b), (c) or (d), the Company shall have the right to have such restrictive covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach of such restrictive covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy for such injury. Accordingly, the Company shall be entitled to injunctive relief to enforce the terms of such restrictive covenants and to restrain the Executive from any violation thereof. The rights and remedies set forth in this Section 11(f) shall be independent of all other others rights and remedies available to the Company for a breach of such restrictive covenants, and shall be severally enforceable from, in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
12. Survival. The respective obligations and benefits afforded to the Company and Executive as provided in Sections 3 (to the extent that payments or benefits are owed as a result of a termination of employment that occurs during the term of this Agreement), 5, 7(b), 9 and 11 shall survive the termination of this Agreement.
13. Dispute Resolution. The Company and Executive agree that any controversy or claim arising out of or relating to this Agreement (other than a controversy under Section 11 of this Agreement), or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Employment Arbitration Rules then in effect. Venue for any arbitration pursuant to this Agreement will lie in San Diego, California. One of the arbitrators shall be appointed by the Company, one shall be appointed by Executive and the third shall be appointed by the first two arbitrators. If the first two arbitrators
cannot agree on the third arbitrator within 30 days following the appointment of the second arbitrator, then the third arbitrator shall be appointed by the Association. All three arbitrators shall be experienced in the resolution of disputes under employment agreements for senior executives of major corporations. Any award entered by the arbitrators shall be final, binding and nonappealable and judgment may be entered thereon by either party in accordance with applicable law in any court of competent jurisdiction. This arbitration provision shall be specifically enforceable. The arbitrators shall have no authority to modify any provision of this Agreement or to award a remedy for a dispute involving this Agreement other than a benefit specifically provided under or by virtue of the Agreement. Each party shall be responsible for its own expenses relating to the conduct of the arbitration (including reasonable attorneys’ fees and expenses). The Company shall pay the fees of the American Arbitration Association and the arbitrators, if applicable.
14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT WILL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS OF ANY JURISDICTION WHICH WOULD CAUSE THE APPLICATION OF ANY LAW OTHER THAN THAT OF THE STATE OF DELAWARE. ANY ACTION TO ENFORCE THIS AGREEMENT (OTHER THAN AN ACTION WHICH MUST BE BROUGHT BY ARBITRATION PURSUANT TO SECTION 13) MUST BE BROUGHT IN, AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF, A COURT SITUATED IN NEW YORK, NEW YORK. EACH PARTY HEREBY WAIVES THE RIGHTS TO CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.
15. JURY TRIAL WAIVER. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one, and the same instrument.
17. Miscellaneous. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right Executive or the Company may have hereunder shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement. Except as otherwise specifically provided herein, the rights of, and benefits payable to, Executive, his estate or his beneficiaries pursuant to this Agreement are in addition to any rights of, or benefits payable to,
Executive, his estate or his beneficiaries under any other employee benefit plan or compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and Executive has executed this Agreement as of the day and year first above written.
| ENCORE CAPITAL GROUP, INC. | ||||
| By: | /s/ Brandon Black | |||
| Name: | Brandon Black | |||
| Title: | Chief Executive Officer | |||
| [NAME OF EXECUTIVE] | ||||
Appendix A
(Certain Defined Terms)
As used in the Agreement the following terms shall have the respective meanings set forth below:
1. “Board” means the Board of Directors of the Company.
2. “Cause” means (a) any failure to adhere to any written policy of the Company that is legal and generally applicable to employees of the Company; (b) failure by the Executive to substantially perform his duties, which failure amounts to a repeated and consistent neglect of his duties; (c) the appropriation (or attempted appropriation) of a material business opportunity of the Company or any subsidiary thereof, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Company or any subsidiary thereof; (d) the misappropriation (or attempted misappropriation) of any of the Company’s funds or property; (e) the conviction of, or the entering of a guilty plea or plea of no contest, with respect to a felony, the equivalent thereof, a crime of moral turpitude or any other crime with respect to which imprisonment is a possible punishment; (f) conduct materially injurious to the Company’s reputation or business; or (g) willful misconduct.
3. “Change in Control” means the occurrence of any one of the following events:
(a) the Company is merged into or consolidated with another corporation, in a transaction in which, upon completion, the Company’s stockholders beneficially own (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), less than 50% of the total voting securities entitled to vote generally in the election of directors of the surviving or resulting company outstanding;
(b) all or substantially all of the assets of the Company are acquired by another corporation or business entity;
(c) any person (as such term is used in Section 13(d) and 14(d)(2) of the Exchange Act), other than an employee benefit plan of the Company or any subsidiary of the Company or any entity holding shares of capital stock of the Company for or pursuant to the terms of any such employee benefit plan in its role as an agent or trustee for such plan, shall acquire 50% or more of the Company’s outstanding voting stock entitled to vote generally in the election of directors; or
(d) a majority of the directors of the Company being individuals not nominated by the Board.
Notwithstanding the foregoing, the events described above shall not be deemed to be a Change in Control if they occur as a result of (i) a transaction involving
any person (as defined in clause 3(c)) which is the beneficial owner (as defined in clause 3(a)) as of the date of this Agreement, of more than 5% of the Company’s outstanding voting stock entitled to vote generally in the election of directors or any associate or affiliate of such person (as such terms are defined in Rule 405 promulgated under the Securities Act of 1933, as amended) or (ii) in the case of clause 3(c), a person acquiring such 50% ownership position as a result of the acquisition by the Company of its voting stock which reduces the number of outstanding shares of voting stock of the Company.
4. “Compensation Committee” means the Compensation Committee of the Board.
5. “Date of Termination” means (a) the effective date on which Executive’s employment by the Company or any Subsidiary terminates as specified in a prior written notice by the Company, such Subsidiary or Executive, as the case may be, to the other, delivered pursuant to Section 8 or (b) if Executive’s employment by the Company or any Subsidiary terminates by reason of death, the date of death of Executive.
6. “Disability” means termination of Executive’s employment by the Company or any Subsidiary due to Executive’s absence from Executive’s duties on a full-time basis for at least one hundred eighty (180) consecutive days as a result of Executive’s incapacity due to physical or mental illness.
7. “Good Reason” means, without Executive’s express written consent, the occurrence of any of the following events after a Change in Control:
(a) a significant and material reduction in the Executive’s duties, responsibilities and authority;
(b) any reduction in base salary; or
(c) any relocation by the Company of the Executive’s employment to a location outside of Southern California without the Executive’s consent.
8. “Qualifying Termination” means a termination of Executive’s employment (a) by the Company or any Subsidiary other than for Cause or (b) by Executive for Good Reason. Termination of Executive’s employment on account of death or Disability shall not be treated as a Qualifying Termination.
9. “Retention Bonus” means ___% of Executive’s highest annual rate of base salary during the period commencing one year prior to a Change in Control and ending on date of payment of the Retention Bonus pursuant to Section 4 of the Agreement.
10. “Subsidiary” means any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total combined voting power of the then outstanding securities or interests of such corporation or other entity entitled to vote generally in the election of directors or in which the
Company has the right to receive 50% or more of the distribution of profits or 50% of the assets on liquidation or dissolution.
11. “Termination Period” means the period of time beginning with a Change in Control and ending twelve months following such Change in Control.