Employment Agreement

Change in Control

Severance

 

 

EX-10.13 4 d70381exv10w13.htm EX-10.13

Exhibit 10.13

EMPLOYMENT AND COMPENSATION AGREEMENT

PURPOSE

This document sets forth the terms of an agreement (the Agreement) between EZCORP, Inc. and Texas EZPAWN, L.P. (collectively the “Company”) and Paul E. Rothamel.

TERM OF THE AGREEMENT

This Agreement will be effective for the period from September 14, 2009 through September 30, 2011. At the end of this initial term, the Agreement will extend for an additional 12 months annually unless one party notifies the other party, with 90 days notice, of the desire to end the agreement.

GENERAL TERMS OF COMPENSATION AND BENEFITS

TITLE: Mr. Rothamel’s employment is with Texas EZPAWN, L.P. Mr. Rothamel’s title will be Executive Vice President and Chief Operating Officer of EZCORP and report to the President and Chief Executive Officer of EZCORP.

BASE SALARY: For fiscal 2010, Mr. Rothamel’s base salary will be $500,000, paid in accordance with the Company’s standard payroll practices. His salary will be reviewed and considered for merit increases prior to the beginning of each fiscal year of active employment; however, there is no guarantee that his base salary will increase every year.

SHORT TERM INCENTIVE: Mr. Rothamel will be eligible for a bonus in fiscal 2010 (beginning October 1, 2009) and each fiscal year of active employment, subject to the terms of the Company’s then-current Incentive Compensation Program. His Bonus Target amount for fiscal year 2010 and 2011 will be 100% of base salary. Mr. Rothamel’s individual award will be determined by actual results achieved against previously established objectives. While it is possible that he may fail to earn a bonus in any given year, it is also possible for him to earn up to I50% of the Bonus Target amount for outstanding performance. In addition to the above incentive plan, Mr. Rothamel will receive a one-time special bonus payment of $125,000 on October 15, 2009 provided he is actively employed by the Company on that date.

EQUITY: Mr. Rothamel will receive a grant of 25,000 restricted shares of EZCORP (EZPW) Class A, non-voting stock within thirty days of his start date. These shares will cliff vest in three years from the date of the grant and be subject to the terms and conditions of the Plan. Thereafter, he will be eligible for annual equity reviews.

 


 

PAID TIME OFF: Mr. Rothamel will be eligible for 4 weeks paid vacation and 5 paid personal days annually beginning in 2010. For the remainder of 2009, he will be eligible for two weeks vacation. Unused vacation days and personal days cannot be carried over from one year to another.

BENEFITS: As Executive Vice President and Chief Operating Officer, Mr. Rothamel will be eligible for participation in all Company benefit programs, including medical, dental, vision, life insurance, long-term disability insurance and accidental death & disability insurance, in accordance with the applicable terms and conditions of those respective plans. He will be eligible for participation in the Company’s 401(k) Plan, subject to that plan’s terms and conditions, and he will be eligible to participate, at the highest level, in the Company’s Executive Medical Supplement Plan and Supplemental Executive Retirement Plan, in accordance with the terms and conditions of those plans.

RELOCATION: The Company will provide Mr. Rothamel with a relocation package to move from Omaha to Austin, Texas that includes the following Company-paid items:

 

a.)

 

Temporary housing in Austin for up to ten months from the start date.

 

 

b.)

 

Air travel to Omaha twice monthly during the temporary living period.

 

 

c.)

 

Air travel from Omaha to Austin for spouse and children for three house hunting trips.

 

 

d.)

 

Packing and movement of household goods from Omaha to Austin.

 

 

e.)

 

A one-time Moving Allowance of $80,000 net of federal taxes to cover house closing costs and incidentals.

 

 

f.)

 

Moving expenses grossed-up for Federal taxes.

In the event Mr. Rothamel should leave the Company voluntarily or he is discharged for cause, within two years of the payments included in this relocation plan, he will be responsible for the repayment to the Company of all relocation costs, including tax gross-up.

POST-EMPLOYMENT ARRANGEMENTS

 

A.

 

RESIGNATION FROM THE COMPANY

 

1.

 

Voluntary Resignation: In the event of Mr. Rothamel’s voluntary resignation prior to the expiration of this Agreement, he will receive his accrued base salary through the effective date of his resignation. He will receive no other termination benefits from the Company.

 

 

2.

 

Resignation for Good Reason: Mr. Rothamel shall provide written notice to the Company of the existence of a condition or reason he believes constitutes Good Reason, as defined below. This written notice

 


 

 

 

 

must be provided within 90 days of discovery of such condition or reason; it must also provide sufficient detail to allow the Company an opportunity to respond and, if required, to cure the specified condition or reason within 30 days of receiving such notice. If the Company cures the condition, or if the reason does not constitute Good Reason as defined below, Mr. Rothamel will withdraw his notice.

 

 

 

For purposes of this Agreement, “Good Reason” will be defined as any action, without Mr. Rothamel’s written consent, which results in one or more of the following:

 

 

a)

 

Material diminution of, or material change to, his job title; reporting relationship, or responsibilities, authorities and duties from his current role as Executive Vice President and Chief Operating Officer of EZCORP.

 

 

b)

 

Reduction of his annual base salary below $500,000 and/or your target bonus opportunity below 100% of base salary.

 

 

c)

 

Removal of his principal work location from the Austin metropolitan area to a municipality more than 50 miles distant from Austin.

 

 

d)

 

A change of control as defined in the EZCORP, Inc. 2006 Incentive Plan, including any amendments to that plan.

 

 

e)

 

A requirement that he perform an unlawful, dishonest or unethical act.

 

 

 

If the condition or reason cited by Mr. Rothamel, in fact, constitutes Good Reason as defined above, and if the Company does not cure the specified condition or reason within the 30 day notice period, Mr. Rothamel may resign and the following compensation and benefits will be provided to him:

 

 

a)

 

Continuation of his base salary through the effective date of his resignation for Good Reason.

 

 

b)

 

Payment of an amount equal to one year of his then-current base salary.

 

 

c)

 

Continuation of his Company healthcare plan under COBRA and at the COBRA rate for a period of one year, during which time the Company will reimburse him for COBRA costs, including the gross-up of such payments for federal taxes.

 


 

TERMINATION BY THE COMPANY

 

1.

 

Termination for Cause: In the event of a termination of Mr. Rothamel’s employment by the Company for Cause, as defined below, he will receive his base salary through the effective date of such termination, paid according to the regular payroll schedule of the Company, and he will receive no other termination benefits. The Company will provide Mr. Rothamel with written notice of the existence of any reason it believes constitutes Cause within 90 days of discovery of such reason. If the reason cited is such that Mr. Rothamel is able to cure the Cause within 30 days, the Company will provide that period for cure prior to any termination.

 

 

 

 

For purposes of this Agreement, “Cause” is defined as any intentional and material misapplication of Company funds; any material act of dishonesty; any conviction of a felony involving moral turpitude; any conviction for the unlawful possession of a controlled substance, or any on-going refusal to perform the lawful and reasonable business directives of the Board of Directors. Unsatisfactory job performance, without the existence of any of the other reasons set forth in this paragraph, shall not constitute Cause under this Agreement.

 

 

2.

 

Termination without Cause: In the event that Mr. Rothamel is terminated without cause, he will receive the following compensation and benefits:

 

a)

 

Continuation of his base salary through the effective date of his termination without cause.

 

 

b)

 

Payment of a sum equal to a prorated portion of his current-year Target Bonus amount, payable as a lump sum within 30 days of such termination.

 

 

c)

 

Payment of an amount equal to one year of his then-current base salary.

 

 

d)

 

Continuation of his Company healthcare plan under COBRA and at the COBRA rate for a period of one year, during which time the Company will reimburse him for COBRA costs, including the gross-up of such payments for federal taxes.

 


 

 

B.

 

TERMINATION DUE TO DEATH OR DISABILITY

 

 

1.

 

Death: In the event of Mr. Rothamel’s death during his active employment with the Company his employment will terminate immediately and the following compensation and benefits will be paid:

 

a)

 

Continuation of his base salary through the effective date of his termination due to death.

 

 

b)

 

Payment to his estate of an amount equal to one year of his then-current base salary.

 

 

c)

 

Continuation of coverage in the Company’s healthcare plan under COBRA and at the COBRA rate for his family for a period of one year, during which time the Company will reimburse her for COBRA costs, including the gross-up of such payments for federal taxes.

 

 

2.

 

Disability: During his active employment with the Company, should Mr. Rothamel become totally disabled or unable to perform the essential functions of his position (with reasonable accommodation) for a period of at least 6 months, the Company may elect to terminate his employment at any time thereafter. If the Company elects to terminate his employment due to disability, he will receive the following compensation and benefits:

 

a)

 

Continuation of his base salary through the effective date of his termination due to disability.

 

 

b)

 

Payment of an amount equal to one year of his then-current base salary.

 

 

c)

 

Continuation of his Company healthcare plan under COBRA and at the COBRA rate for a period of one year, during which time the Company will reimburse him for COBRA costs, including the gross-up of such payments for federal taxes.

NON-SOLICITATION, NON-COMPETITION AND NON-DISPARAGEMENT

The Company agrees to provide Mr. Rothamel with access to confidential information during his employment under this Agreement. Confidential information means information not generally known and proprietary to the Company or to a third party for which the Company is performing work.

In exchange for being provided with access to this information, Mr. Rothamel agrees that, except as specifically required in the performance of his duties for the

 


 

Company, he will not, during the course of his employment by or consulting with the Company, and after termination of his employment by or consulting with the Company, directly or indirectly use, disclose or disseminate to any other person, organization or entity or otherwise employ any confidential information. Mr. Rothamel agrees to deliver to the Company upon the cessation of his employment or consulting, and at any other time upon the Company’s request, all such confidential information and not retain any copies.

Given Mr. Rothamel’s position with the Company, if he engages in any business which is directly or indirectly competitive with the Company in the pawn, payday loan, secondhand sales, or similar types of business (“Competing Business”), such action will inevitably result in the disclosure of confidential information in violation of this Agreement. Mr. Rothamel therefore agrees that, for consideration provided in this Agreement, while he is employed by or consulting with the Company, and for a period of 24 months after the termination date of such employment or consulting, he will not directly or indirectly be employed by, have ownership in, consult with, serve as an advisor to or, in any way, be associated with a Competing Business within the Restricted Territory, without the written approval by the Board of Directors of EZCORP. The term “Restricted Territory” for purposes of this Agreement shall mean those states or provinces in which the Company is doing business, or has committed to do business, as of the time of his termination of employment or consulting.

Mr. Rothamel further agrees that, for consideration provided in this Agreement, while he is employed by or consulting with the Company, and for 24 months after the termination date of such employment or consulting, he will not directly or indirectly solicit, contact or call upon any customer or business contact of the Company with whom he had business dealings while employed by, or consulting with, the Company with the intent to entice them to reduce or stop doing business with the Company or in any other way harm their business relationship with the Company.

Mr. Rothamel further agrees that, for consideration provided in this Agreement, while he is employed by or consulting with the Company, and for 24 months after the termination date of such employment or consulting, he will not recruit, hire or attempt to recruit or hire, directly or by assisting others, any employee of the Company with whom he had contact during his employment with the Company.

Mr. Rothamel agrees that the covenants contained in this Agreement are reasonable and necessary to protect the Company’s legitimate business interests in its Confidential Information and its relationships with customers and contacts. Further, the Company’s obligation to pay the separation payments and provide the separation benefits outlined in the various sections of this Agreement are conditioned upon compliance with all of the provisions in this section of the Agreement, as written.

 


 

Any questions concerning the provisions of this Agreement will be settled using Texas law. Good faith disputes or controversy arising under, or in connection with, this Agreement will be settled by arbitration. If arbitration is necessary, such proceeding shall be conducted by final and binding arbitration before an independent arbitrator, selected in accordance with Texas laws and under the administration of the American Arbitration Association. Mr. Rothamel agrees that no particular tax consequences are represented or guaranteed by the provisions of this agreement and that he has been advised to review this agreement with his tax advisor and attorney.

The undersigned agree to this Employment and Compensation Agreement and the individual terms herein.

 

 

 

 

 

 

 

 

 

Joseph L. Rotunda,

 

Paul E. Rothamel

President & CEO

 

 

EZCORP

 

 

 

 

 

 

 

 

 

 

 

Date

 

Date

 

 

 

 

 

 

 

 

 

EX-10.1 2 ex101-changeinctrlseveranc.htm EXHIBIT

 

 

EXHIBIT 10.1

EZCORP, INC.

CHANGE IN CONTROL SEVERANCE PLAN

Terms with their initial letters capitalized shall have the respective meanings ascribed to them in Article II below.

INTRODUCTON

The Board of Directors of EZCORP, Inc. considers the maintenance of a sound management to be essential to protecting and enhancing the best interests of the Company and its stockholders. In this connection, the Company recognizes that the possibility of a Change in Control may exist from time to time and that this possibility, and the uncertainty and questions it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its stockholders. Accordingly, the Board of Directors has determined that appropriate steps should be taken to encourage the continued attention and dedication of members of the Company’s management to their assigned duties without the distraction that may arise from the possibility of a Change in Control.

This Plan does not alter the status of Participants as at-will employees of the Company. Just as Participants remain free to leave the employ of the Company at any time, so too does the Company retain its right to terminate the employment of Participants without notice, at any time, for any reason. The Board of Directors believes, however, that, both prior to and at the time a Change in Control is anticipated or occurring, it is necessary to have the continued attention and dedication of Participants to their assigned duties without distraction, and this Plan is intended as an inducement for Participants’ willingness to continue to serve as employees of the Company (subject, however, to either party’s right to terminate such employment at any time). Therefore, should a Participant still be an employee of the Company at such time, the Company agrees that such Participant shall receive the severance benefits hereinafter set forth in the event the Participant’s employment with the Company terminates under the circumstances described below.

ARTICLE I

ESTABLISHMENT OF PLAN

As of June 2, 2014 (the “Effective Date”), the Company establishes the EZCORP, Inc. Change in Control Severance Plan, as set forth in this document (the “Plan”). The Plan is intended to be a top hat welfare benefit plan under ERISA.

ARTICLE II

DEFINITIONS

As used herein the following words and phrases shall have the respective meanings indicated below, unless the context clearly indicates otherwise.

2.1

Administrator — The Board of Directors or any other person or committee appointed by the Board of Directors to administer the Plan.

 

2.2

Affiliate — Any entity that controls, is controlled by or is under common control with the Company.

 

2.3

Annual Base Salary — With respect to any Participant, the annual base salary paid or payable to such Participant (including any base salary that is subject to deferral at the election of the Participant) by the Company or any of its Affiliates at the greater of (a) the rate in effect (or required to be in effect before any diminution that is a basis of the Participant’s termination for Good Reason) on the Date of Termination or (b) the rate in effect immediately prior to the Change in Control.

 

 

 


 

 

2.4

Annual Incentive Bonus — With respect to any Participant and Fiscal Year, the annual incentive bonus that may be earned by such Participant (including any amount thereof that would be deferred at the election of the Participant) pursuant to the ICP for such Fiscal Year.

 

2.5

Applicable Multiple —

 

(a)

With respect to any Participant who is an Executive Officer at the time of the Change of Control, two; and

 

(b)

With respect to any other Participant, the number or fraction (not less than one nor more than two) designated as the “Applicable Multiple” for such Participant by the Board of Directors at the time such Participant qualifies as a Participant or at any time while the Participant remains a Participant and as documented on Appendix A.

 

2.6

Benefits Continuation Period — With respect to any Participant, number of years (or fraction thereof) following the Date of Termination equal to the Participant’s Applicable Multiple.

 

2.7

Board of Directors — The Board of Directors of the Company.

 

2.8

Business Combination — A reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Company or any of its Affiliates; a sale or other disposition of all or substantially all of the assets of the Company; or the acquisition of assets or securities of another entity by the Company or any of its subsidiaries.

 

2.9

Cause — With respect to any Participant:

 

(a)

The Participant’s willful failure to perform Participant’s duties (other than any such failure resulting from incapacity due to physical or mental illness);

 

(b)

The Participant’s willful failure to comply with any valid and legal directive of the person or entity to whom the Participant reports;

 

(c)

The Participant’s conviction, or entering into a plea of either guilty or nolo contendere to, any felony or any misdemeanor involving material acts of moral turpitude, embezzlement, theft or other similar act;

 

(d)

The Participant’s willful engagement in gross misconduct in the performance of the Participant’s duties;

 

(e)

The Participant’s willful and material violation of any policy of the Company or any of its Affiliates (including the Company’s Code of Conduct); or

 

(f)

The Participant’s willful and material violation of the Protection of Sensitive Information, Nonsolicitation and Noncompetition Agreement between such Participant and the Company.

 

2.10

Change in Control — The occurrence of any of the following events:

 

(a)

Any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the Outstanding Company Voting Securities; provided, however, that, for purposes of this Section 2.10(a), the following acquisitions shall not constitute a Change in Control:

 

(i)

Any acquisition directly from the Company;

 

(ii)

Any acquisition by the Company;

 

(iii)

Any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its Affiliates; or

 

(iv)

Any acquisition pursuant to a transaction that complies with clause (i), (ii) or (iii) of Section 2.10(c);

 

(b)

Individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a director after the Effective Date and whose

 

 


 

 

election, or nomination for election, was approved by a vote of a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board;

 

(c)

Consummation of a Business Combination, unless immediately thereafter:

 

(i)

All or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, at least 65% of the then-outstanding voting securities entitled to vote generally in the election of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination (including an entity that, as a result of such transaction, owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Voting Securities;

 

(ii)

No Person (excluding any entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then-outstanding voting securities of the entity resulting from such Business Combination, except to the extent that such ownership existed prior to the Business Combination; or

 

(iii)

At least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board of Directors providing for such Business Combination; or

 

(d)

Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

 

Notwithstanding the foregoing, if the Incumbent Board approves the occurrence of any of the events in this Section 2.10(a)-(d) above, such occurrence will not constitute a Change in Control with regard to Separation Benefits payable pursuant to this Plan.

2.11

COBRA — The Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time.

 

2.12

Code — The Internal Revenue Code of 1986, as amended from time to time.

 

2.13

Company — EZCORP, Inc., a Delaware corporation, and any successor thereto.

 

2.14

Compensation Committee — The Compensation Committee of the Board of Directors.

 

2.15

Date of Termination —

 

(a)

If the Participant’s Employment is terminated by the Company for Cause, the date of the Participant’s receipt of the Notice of Termination from the Company or such later date specified in the Notice of Termination;

 

(b)

If the Participant’s Employment is terminated by the Participant for Good Reason, the date of the Company’s receipt of the Notice of Termination from the Participant or such later date specified in the Notice of Termination;

 

(c)

If the Participant’s Employment is terminated by the Company other than for Cause or Disability, the date on which the Company notifies the Participant of such termination;

 

(d)

If the Participant resigns without Good Reason, the date on which the Participant notifies the Company of such termination; and

 

(e)

If the Participant’s Employment is terminated by reason of the Participant’s death or Disability, the date of death of the Participant or the 30th day after receipt of the Notice of Termination by the Participant, as the case may be.

 

 

 


 

 

Notwithstanding the foregoing, in no event shall the Date of Termination occur until the Participant experiences a “separation from service” within the meaning of Section 409A of the Code, and the date on which such separation from service takes place shall be the “Date of Termination.”

2.16

Disability — With respect to any Participant, a condition such that the Participant by reason of physical or mental disability becomes unable to perform his or her normal duties for more than 180 days in the aggregate (excluding infrequent or temporary absence due to ordinary transitory illness) during any twelve-month period.

 

2.17

Effective Date — Has the meaning specified in Article I above.

 

2.18

Employment — With respect to any Participant, such Participant’s full-time employment with the Company or any of its Affiliates.

 

2.19

ERISA — The Employee Retirement Income Security Act of 1974, as amended from time to time.

 

2.20

Exchange Act — The Securities Exchange Act of 1934, as amended from time to time.

 

2.21

Executive Officer — An employee of the Company or any of its Affiliates who is designated by the Board of Directors as an “Executive Officer” of the Company.

 

2.22

Fiscal Year — A fiscal year of the Company, consisting of a period of twelve consecutive calendar months commencing October 1 and ending the following September 30.

 

2.23

Good Reason — With respect to any Participant, actions taken by the Company resulting in a material negative change in such Participant’s Employment, including any of the following actions taken without such Participant’s written consent:

 

(a)

The Participant is assigned duties materially inconsistent with such Participant’s position, duties, responsibilities and status with the Company during the 90-day period immediately preceding a Change in Control;

 

(b)

The Participant’s position, authority, duties or responsibilities are materially diminished from those in effect during the 90-day period immediately preceding a Change in Control (whether or not occurring solely as a result of the Company ceasing to be a publicly traded entity);

 

(c)

A material reduction in the Participant’s Annual Base Salary or total annual compensation opportunity from such Annual Base Salary or total annual compensation opportunity, as the case may be, as in effect at the time of the Change in Control or (if higher) at the Date of Termination in the event of a termination of Employment after a Change in Control;

 

(d)

The Company requires the Participant regularly to perform such Participant’s duties of Employment beyond a 50-mile radius from the location of the Participant’s Employment immediately prior to the Change in Control;

 

(e)

The Company fails to obtain a satisfactory agreement from any successor to assume and perform this Plan, as contemplated by Article V below; or

 

(f)

Any other action or inaction that constitutes a material breach by the Company of this Plan with respect to such Participant.

 

In order to invoke a termination of Employment for Good Reason, the Participant shall provide a Notice of Termination to the Company’s General Counsel within 90 days following the initial existence of any of the conditions described in clauses (a) through (f) above, which notice shall specify in reasonable detail the conditions constituting Good Reason. The Company shall have a period of 30 days following receipt of such Notice of Termination during which it may remedy the conditions cited in the Notice of Termination. In the event that the Company fails to remedy such conditions during such 30-day period, in order for the termination of Employment to constitute a termination for Good Reason, the Participant’s “separation from service” (within the meaning of Section 409A) must occur, if at all, on or before the later of (i) the second anniversary of the initial existence of any of the conditions constituting Good Reason or (ii) the second anniversary of the Change in Control. The Participant’s mental or physical incapacity following the occurrence of an event described above in clauses (a) through (f) above shall not affect the Participant’s ability to terminate employment for Good Reason and the Participant’s death following delivery of a Notice of Termination invoking a termination of

 

 


 

 

Employment for Good Reason shall not affect the Participant’s estate’s entitlement to Separation Benefits provided hereunder.

2.24

ICP — The EZCORP, Inc. Incentive Compensation Plan, pursuant to which Participants may earn annual incentive bonuses calculated as a multiple of Annual Base Salary.

 

2.25

Incumbent Board — The Board of Directors as constituted at the Effective Time (taking into consideration the proviso stated in Section 2.10(b)).

 

2.26

Independent Committee — Has the meaning specified in Section 8.2.

 

2.27

Notice of Termination — A written notice of the termination of a Participant’s Employment (whether given by the Company or by the Participant) that (a) indicates the specific termination provision in this Plan relied upon and (b) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for the termination of the Participant’s Employment under the provision so indicated. The failure by the Participant or the Company to set forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good Reason or Cause shall not waive any right of the Participant or the Company, respectively, hereunder or preclude the Participant or the Company, respectively, from asserting such fact or circumstance in enforcing the Participant’s or the Company’s respective rights hereunder.

 

2.28

NQDCP — The EZCORP, Inc. Nonqualified Deferred Compensation Plan, pursuant to which Participants may defer a portion of their compensation.

 

2.29

Outstanding Company Voting Securities — At any time, the then-outstanding voting securities of the Company entitled to vote generally in the election of directors.

 

2.30

Participant — An individual who qualifies as such pursuant to Section 3.1.

 

2.31

Plan — Has the meaning specified in Article I above.

 

2.32

PPACA — The Patient protection and Affordable Care Act of 2010 and the related regulations and guidance promulgated thereunder.

 

2.33

Qualifying Termination — With respect to any Participant, the termination of such Participant’s Employment either (a) by the Company for any reason other than Cause, death, Disability or retirement under a mandatory retirement policy of the Company or any of its Affiliates that is in effect at the Effective Time or is otherwise approved by the Incumbent Board or (b) by the Participant for Good Reason, so long as, in either case, such termination of Employment either (i) occurs after a Change in Control and on or prior to the second anniversary of the Change in Control or (ii) occurs prior to a Change in Control and the Participant demonstrates that such termination was requested or otherwise occurred in connection with a potential Change in Control. A Qualifying Termination that occurs prior to a Change in Control will be deemed to occur upon the occurrence of the Change in Control for purposes of the Plan.

 

2.34

Section 409A — Section 409A of the Code, and the rules and regulations issued thereunder.

 

2.35

Separation Benefits — The benefits described in Section 4.2 that are provided to Participants under this Plan.

 

2.36

Target Bonus — With respect to any Participant, the greater of the following amounts:

 

(a)

The amount of the Participant’s Annual Incentive Bonus (before any diminution thereof that is a basis for the Participant’s termination for Good Reason) for the Fiscal Year in which the Date of Termination occurs; or

 

(b)

The amount of the Participant’s Annual Incentive Bonus for the Fiscal Year in which the Change in Control occurs;

 

in either case, assuming that all Annual Incentive Bonuses under the ICP for such Fiscal Year are paid at “Target Amount,” as designated in the ICP for such Fiscal Year (annualized for any Fiscal Year during which the Participant was employed by the Company or any of its Affiliates for less than 12 full months).

 

 


 

 

ARTICLE III

ELIGIBILITY

3.1

Participation — At any time, the Participants shall consist of (a) each person who is then serving as an Executive Officer (unless the Board of Directors has specified that such person shall not be a Participant) and (b) each other employee of the Company or any of its Affiliates who has theretofore been designated by the Compensation Committee as a Participant. Eligible employees shall be limited to a select group of management or highly compensated employees within the meaning of Sections 201, 301 and 404 of ERISA. Appendix A of this Plan document, as it may be updated from time to time by the Compensation Committee, shall at all times contain a current list of Participants. Notwithstanding the foregoing, if a Participant is eligible to receive severance benefits under another plan, agreement or arrangement maintained by the Company, the Participant shall only be entitled to receive severance benefits under this Plan or such other plan, agreement or arrangement, whichever provides the greatest cumulative benefit to the Participant. For the avoidance of doubt, in no event shall a Participant be entitled to receive a Separation Benefit under this Plan that would be duplicative of any other severance benefits for which a Participant is eligible under another plan, agreement or arrangement.

 

3.2

Duration of Participation — The Compensation Committee may remove a person as a Participant by providing written notice of removal to such person and updating Appendix A of this Plan document to remove such person from the list of Participants; provided, however, that no such removal shall be effective (a) during the two-year period following a Change in Control, (b) if effectuated in connection with a potential Change in Control or (c) at such time as the Participant is entitled to payment of a Separation Benefit or any other amounts payable under the Plan. Notwithstanding any other provision hereof to the contrary, a Participant who is entitled to payment of a Separation Benefit or any other amounts under the Plan shall remain a Participant in the Plan until the full amount of the Separation Benefit and any other amounts payable under the Plan have been paid to the Participant.

ARTICLE IV

SEPARATION BENEFITS

4.1

Terminations of Employment Which Give Rise to Separation Benefits — A Participant shall be entitled to Separation Benefits as set forth in Section 4.2 below if the Participant experiences a Qualifying Termination.

 

4.2

Separation Benefits —

 

(a)

If a Participant experiences a Qualifying Termination, then the Company shall pay to the Participant, in a lump sum in cash within 10 days after the Date of Termination, the aggregate of the following amounts, which benefits shall be in addition to any other benefits to which the Participant is entitled other than by reason of the Plan:

 

(i)

Unpaid salary with respect to any paid time off accrued but not taken as of the Date of Termination;

 

(ii)

Accrued but unpaid salary through the Date of Termination;

 

(iii)

Any earned but unpaid Annual Incentive Bonus for the Fiscal Year immediately preceding the Fiscal Year in which the Date of Termination occurs (unless the Participant has made an irrevocable election under any deferred compensation arrangement subject to Section 409A to defer any portion of such Annual Incentive Bonus, in which case any such deferred bonus shall be paid in accordance with such election);

 

(iv)

An amount equal to the Applicable Multiple times the Participant’s Annual Base Salary; and

 

(v)

An amount equal to the Applicable Multiple times the Participant’s Target Bonus.

 

(b)

If the Participant’s employment is terminated under circumstances that entitle the Participant to Separation Benefits under Section 4.2(a), the Company shall provide the Participant and the Participant’s eligible dependents with continued health care, dental and life insurance benefits under the Company’s health care, dental and life insurance benefits programs for the Benefits Continuation Period, which benefits shall be no less than those provided to the Participant and the Participant’s eligible dependents at the time of the Date of Termination or (if greater) at the time of the Change in Control; provided, however, that the Participant must comply with all

 

 


 

 

terms and conditions of the applicable plans, including paying the necessary employee contributions; and provided further, however, that, if the Participant becomes reemployed with another employer and becomes eligible to receive health care, dental or life insurance benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Benefit continuation will be provided concurrently with any benefits required under COBRA. The difference between the cost for such benefits under COBRA and the amount of the necessary contributions that the Participant is required to pay for such coverage as provided above will be paid by the Company and considered imputed income to the Participant. The Participant is responsible for the payment of income tax due as a result of such imputed income. Notwithstanding the foregoing, if the Company’s providing benefit continuation hereunder would violate the nondiscrimination rules applicable to non-grandfathered plans or would result in imposition of penalties under PPACA, the Company may reform this Section 4.2(b) in a manner as is necessary to comply with PPACA.

 

(c)

The Participant shall not be required to mitigate the amount of any payment provided for in this Section 4.2 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 4.2 be reduced by any compensation earned by the Participant as the result of employment by another employer or by retirement benefits paid by the Company after the Date of Termination, or otherwise, or by any set-off, counterclaim, recoupment or other claim, right or action the Company may have against the Participant or others.

ARTICLE V

EQUITY AWARDS

Notwithstanding the terms of the Company’s equity plans under which a Participant’s equity awards are granted or any applicable award agreements, if a Participant has a Qualifying Termination, then:

(a)

All of the Participant’s outstanding unvested time-based awards shall become fully vested and any restrictions thereon shall lapse and, in the case of stock options and stock appreciation rights, shall remain exercisable for the remainder of their full term; and

 

(b)

All of the Participant’s outstanding unvested equity awards with performance-based vesting shall be deemed achieved at target levels with respect to performance goals or other vesting criteria.

ARTICLE VI

DEFERRED COMPENSATION

Notwithstanding the terms under the Company’s NQDCP, if a Participant has a Qualifying Termination, then all Company contributions under the NQDCP will become fully vested.

ARTICLE VII

EXCISE TAXES

Notwithstanding anything to the contrary in this Plan, if a Participant is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Plan, together with any other payments and benefits which such Participant has the right to receive from the Company or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Plan shall be either:

(a)

Reduced (but not below zero) so that the present value of such total amounts and benefits received by such Participant from the Company and its Affiliates will be one dollar ($1.00) less than three times such Participant’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by such Participant shall be subject to the excise tax imposed by Section 4999 of the Code or

 

(b)

Paid in full,

 

 

 


 

 

whichever produces the better net after-tax position to such Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or its Affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times such Participant’s base amount, then such Participant shall be required to immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Article V shall require the Company to be responsible for, or have any liability or obligation with respect to, such Participant’s excise tax liabilities under Section 4999 of the Code.

ARTICLE VIII

PLAN ADMINISTRATOR

8.1

Authority of the Administrator — The Plan shall be administered by the Compensation Committee. Subject to the express provisions of the Plan and applicable law, the Administrator will have the authority, in its sole and absolute discretion, to:

 

(a)

Adopt, amend, and rescind administrative and interpretive rules and regulations related to the Plan,

 

(b)

Delegate its duties under the Plan to such agents as it may appoint from time to time, and

 

(c)

Make all other determinations, perform all other acts and exercise all other powers and authority necessary or advisable for administering the Plan, including the delegation of those ministerial acts and responsibilities as the Administrator deems appropriate.

 

The Administrator shall have complete discretion and authority with respect to the Plan and its application except to the extent that discretion is expressly limited by the Plan. The Administrator may correct any defect, supply any omission, or reconcile any inconsistency in the Plan in any manner and to the extent it deems necessary or desirable to carry the Plan into effect, and the Administrator will be the sole and final judge of that necessity or desirability. The determinations of the Administrator on the matters referred to in this Section 8.1 will be final and conclusive; provided, however, that in the event that no Independent Committee is appointed as described in Section 8.2 below, any determination by the Compensation Committee of whether “Cause” or “Good Reason” exists shall be subject to de novo review.

8.2

Independent Committee — In the event of an impending Change in Control, the Compensation Committee may appoint one or more persons (including members of the Compensation Committee) to a separate committee (the “Independent Committee”) to administer the Plan effective upon the occurrence of a Change in Control and such Independent Committee shall not be removed or modified following a Change in Control, other than at its own initiative.

ARTICLE IX

CLAIMS FOR BENEFITS

9.1

Initial Claim — In the event that a Participant or his estate claims (a “claimant”) to be eligible for a payment under the Plan, or claims any other rights under the Plan, such claimant must complete and submit such claim forms and supporting documentation as will be required by the Administrator, in its sole and absolute discretion. In connection with the determination of a claim, or in connection with review of a denied claim, the claimant may examine the Plan and any other pertinent documents generally available to Participants that are specifically related to the claim. A written notice of the disposition of any such claim will be furnished to the claimant within ninety (90) days after the claim is filed with the Administrator. Such notice will refer, if appropriate, to pertinent provisions of the Plan, will set forth in writing the reasons for denial of the claim, if a claim is denied (including references to any pertinent provisions of the Plan), and, where appropriate, will describe any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary. If the claim is denied, in whole or in part, the claimant will also be notified of the Plan’s claim review procedure and the time limits applicable to such procedure.

 

 

 


 

 

9.2

Request for Review — Within ninety (90) days after receiving written notice of the Administrator’s disposition of the claim, the claimant may file with the Administrator a written request for review of his claim. In connection with the request for review, the claimant will be entitled to be represented by counsel and will be given, upon request and free of charge, reasonable access to all pertinent documents for the preparation of his claim. If the claimant does not file a written request for review within ninety (90) days after receiving written notice of the Administrator’s disposition of the claim, the claimant will be deemed to have accepted the Administrator’s written disposition, unless the claimant was physically or mentally incapacitated so as to be unable to request review within the ninety (90) day period.

 

9.3

Decision on Review — After receipt by the Administrator of a written application for review of an initial claim determination, the Administrator will review the claim taking into account all comments, documents, records and other information submitted by the claimant regarding the claim without regard to whether such information was considered in the initial benefit determination. The Administrator will notify the claimant of its decision by delivery via certified or registered mail to the claimant’s last known address. A decision on review of the claim will be made by the Administrator within forty-five (45) days of receipt of the written request for review. If special circumstances require an extension of the forty-five (45) day period, the Administrator will so notify the claimant and a decision will be rendered within ninety (90) days of receipt of the request for review. In any event, if a claim is not determined by the Administrator within ninety (90) days of receipt of written submission for review, it will be deemed to be denied. The decision of the Administrator will be provided to the claimant as soon as possible but no later than five (5) days after the benefit determination is made. The decision will be in writing and will include the specific reasons for the decision presented in a manner calculated to be understood by the claimant and will contain references to all relevant Plan provisions on which the decision was based. Such decision will also advise the claimant that he may receive upon request, and free of charge, reasonable access to and copies of all documents, records and other information relevant to his claim and will inform the claimant of his right to file a civil action under Section 502(a) of ERISA, in the case of an adverse decision regarding his appeal. The decision of the Administrator will be final and conclusive.

 

9.4

Exhaustion of Administrative Remedies —The exhaustion of these claims procedures is mandatory for resolving every claim and dispute arising under the Plan. As to such claims and disputes:

 

(a)

No claimant shall be permitted to commence any legal action to recover benefits or to enforce or clarify rights under the Plan under Section 502 or Section 510 of ERISA or under any other provision of law, whether or not statutory, until these claims procedures have been exhausted in their entirety; and

 

(b)

In any such legal action, all explicit and implicit determinations by the Administrator (including, but not limited to, determinations as to whether the claim, or a request for a review of a denied claim, was timely filed) shall be afforded the maximum deference permitted by law.

ARTICLE X

DURATION, AMENDMENT AND TERMINATION

10.1

Duration — Unless earlier terminated pursuant to Section 10.2, if a Change in Control has not occurred, the Plan shall expire three years from the Effective Date, unless the Board of Directors, prior to the third anniversary of the Effective Date, determines to extend the Plan for an additional period not to exceed three years. If a Change in Control occurs while the Plan is in effect, the Plan shall continue in full force and effect for at least two years following such Change in Control, and shall not terminate or expire until after all Participants who become entitled to any payments or benefits hereunder shall have received such payments and benefits in full.

 

10.2

Amendment or Termination — The Company reserves the right to amend, modify, suspend or terminate the Plan at any time by action of a majority of the Board of Directors; provided, however, that no such amendment, modification, suspension or termination that has the effect of reducing or diminishing the right of any Participant shall be effective without the written consent of such Participant for a period of two years following the Change in Control if adopted after a Change in Control or in anticipation of a Change in Control. Any amendment, modification, suspension or termination of this Plan adopted after a Change in Control or in anticipation of a Change in Control shall not affect the right of any Participant to payments or benefits to be paid or provided as a result of events that occur prior to the second anniversary of the Change in Control.

 

 

 


 

 

10.3

Procedure for Extension, Amendment or Termination — Any extension, amendment or termination of this Plan by the Board of Directors in accordance with this Article VI shall be made by action of the Board of Directors in accordance with the Company’s charter and by-laws and applicable law.

ARTICLE XI

MISCELLANEOUS

11.1

Taxes —The Company is authorized to withhold from any payments made hereunder amounts of withholding and other taxes due or potentially payable in connection therewith and to take such other action as the Company may deem advisable to enable the Company and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any payments made under this Plan.

 

11.2

No Assignment — No interest of any Participant or spouse of any Participant or any other beneficiary under this Plan, or any right to receive payment hereunder, shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment or other alienation or encumbrance of any kind, nor may such interest or right to receive a payment or distribution be taken, voluntarily or involuntarily, for the satisfaction of the obligations or debts of, or other claims against, a Participant or spouse of a Participant or other beneficiary, including for alimony.

 

11.3

Unfunded Obligation — All benefits due a Participant under this Plan are unfunded and unsecured and are payable out of general assets of the Company.

 

11.4

Effect on Other Plans, Agreements and Benefits — Except to the extent expressly set forth herein, any benefit or compensation to which a Participant is entitled under any agreement between the Participant and the Company or any of its Affiliates or under any plan maintained by the Company or any of its Affiliates in which the Participant participates or participated shall not be modified or lessened in any way, but shall be payable according to the terms of the applicable plan or agreement, and adoption of the Plan by the Company will not be construed as creating any limitations on the power of the Company to adopt such other incentive arrangements as it may deem desirable. Notwithstanding the foregoing, any benefits received by a Participant pursuant to the Plan shall be in lieu of any severance benefits to which the Participant would otherwise be entitled under any general severance policy or other severance plan maintained by the Company for its management personnel and, upon consummation of a Change in Control, Participants in the Plan shall in no event be entitled to participate in any such severance policy or other severance plan maintained by the Company for its management personnel. In the event of a Participant’s termination of Employment entitling the Participant to Separation Benefits under Section 4.2, any non-competition or non-solicitation provisions applicable to the Participant with respect to the Company or any of its Affiliates shall cease to apply as of the Participant’s Date of Termination.

 

11.5

Notice — For the purpose of the Plan, notices and all other communications provided for in the Plan shall be in writing and shall be deemed to have been duly given when actually delivered or mailed by United States registered mail, return receipt requested, postage prepaid, addressed (in the case of notice to the Company) to the Company’s General Counsel at the Company’s corporate headquarters address or (in the case if notice to a Participant) to the Participant at the last address of the Participant on the Company’s books and records.

 

11.6

Employment Status — This Plan does not constitute a contract of employment or impose on the Participant or the Company any obligation for the Participant to remain an Employee or change the status of the Participant’s employment or the policies of the Company and its Affiliates regarding termination of employment.

 

11.7

Validity and Severability — The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

11.8

Successors — The Plan shall inure to the benefit of and be binding upon the Company and its successors. The Company shall require any corporation, entity, individual or other person who is the successor (whether direct or indirect by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all the business or assets of the Company to expressly assume and agree to perform, by a written agreement in form and in substance satisfactory to the Company, all of the obligations of the Company under the Plan. As used herein, the term “Company” shall mean the Company as hereinbefore defined and any successor to its business or assets as aforesaid that assumes and agrees to perform the Plan by operation of law, written agreement or otherwise. It is a condition of the Plan, and all rights of each person eligible to receive benefits under the Plan shall be subject hereto, that no right or interest of any such person in the Plan shall be

 

 


 

 

assignable or transferable in whole or in part, except by operation of law, including lawful execution, levy, garnishment, attachment, pledge, bankruptcy, alimony, child support or qualified domestic relations order.

 

11.9

Clawback —Notwithstanding any provisions in the Plan to the contrary, any compensation, payments, or benefits provided hereunder, whether in the form of cash or otherwise, shall be subject to a clawback to the extent necessary to comply with the requirements of any applicable law, including but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Section 304 of the Sarbanes Oxley Act of 2002, or any regulations promulgated thereunder, or any policy adopted by the Company pursuant to any such law (whether in existence as of the Effective Date or later adopted).

 

11.10

Section 409A —

 

(a)

General — The Plan is intended to comply with the requirements of Section 409A or an exemption or exclusion therefrom and, with respect to amounts that are subject to Section 409A, shall in all respects be administered in accordance with Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. Each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of Section 409A. All payments to be made upon a termination of employment under this Plan may only be made upon a “separation from service” under Section 409A. In no event may the Participant, directly or indirectly, designate the calendar year of any payment under this Plan.

 

(b)

In-Kind Benefits and Reimbursements — Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind benefits provided under the Plan shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Participant’s lifetime (or during a shorter period of time specified in the Plan), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, except, if such benefits consist of the reimbursement of expenses referred to in Section 105(b) of the Code, a maximum, if provided under the terms of the plan providing such medical benefit, may be imposed on the amount of such reimbursements over some or all of the period in which such benefit is to be provided to the Participant as described in Treasury Regulation Section 1.409A-3(i)(iv)(B), (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, provided that the Participant shall have submitted an invoice for such fees and expenses at least ten days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

(c)

Delay of Payments — Notwithstanding any other provision of this Plan to the contrary, if the Participant is considered a “specified employee” for purposes of Section 409A (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A that is otherwise due to the Participant under this Plan during the six-month period following the Participant’s separation from service (as determined in accordance with Section 409A) on account of the Participant’s separation from service shall be accumulated and paid to the Participant on the first business day after the date that is six months following the Participant’s separation from service. No interest will be paid by the Company with respect to any such delayed payments. If the Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A shall be paid to the personal representative of the Participant’s estate on the first to occur of the date specified above or 30 days after the date of the Participant’s death.

 

11.11

Governing Law — The validity, interpretation, construction and performance of the Plan shall in all respects be governed

by the laws of Delaware, without reference to principles of conflict of law, except to the extent pre-empted by Federal law.

 

(SIGNATURE PAGE FOLLOWS)

 

 

 

 


 

 

This Change in Control Severance Plan is hereby adopted as of the Effective Date specified above.

EZCORP, INC.

By:         /s/ Thomas H. Welch, Jr.    

Name:    Thomas H. Welch, Jr.

Title:    Senior Vice President,

General Counsel and Secretary

 

 

 

 

 

 

EX-10.2 3 ex102-executiveseverancepa.htm EXHIBIT

 

 

EXHIBIT 10.2

EZCORP, INC.

EXECUTIVE SEVERANCE PAY PLAN

EZCORP, Inc. (the “Company”) hereby adopts the EZCORP, Inc. Executive Severance Pay Plan (the “Plan”) for eligible employees of the Company and its Affiliates, effective as of June 2, 2014 (the “Effective Date”). The Plan is intended to offer severance pay to eligible employees in the event of certain involuntary terminations of employment from the Company. The Plan, as a “severance pay arrangement” within the meaning of Section 3(2)(B)(i) of ERISA (as defined below), is intended to be and shall be administered and maintained as an unfunded welfare benefit plan under Section 3(1) of ERISA.

This document constitutes both the formal Plan document and a summary of the Plan, called a summary plan description (“SPD”), and describes the provisions of the Plan that are in effect as of the Effective Date and thereafter. Each Participant (as defined below) should read this SPD carefully so that they will understand the Plan as it applies to them, and should keep this document in a safe place for future reference.

ARTICLE I

DEFINITIONS

As used herein, the following words and phrases have the respective meanings indicated below, unless the context clearly indicates otherwise.

1.1

Administrator — The Board of Directors or any committee thereof designated by the Board of Directors to administer the Plan. The Board of Directors has designated the Compensation Committee as the Administrator.

 

1.2

Affiliate — Any entity that controls, is controlled by or is under common control with the Company.

 

1.3

Annual Base Salary — With respect to any Participant, the annual base salary paid or payable to such Participant (including any base salary that is subject to deferral at the election of the Participant) by the Company or any of its Affiliates.

 

1.4

Annual Incentive Bonus — With respect to any Participant and Fiscal Year, the annual incentive bonus that was paid to such Participant (including any amount thereof that was deferred at the election of the Participant) pursuant to the ICP for such Fiscal Year.

 

1.5

Applicable Bonus — With respect to any Participant, the following:

 

(a)

If the Participant has received an Annual Incentive Bonus for each of the three Fiscal Years immediately preceding the Fiscal Year in which the Date of Termination occurs, then “Applicable Bonus” shall be the average Annual Incentive Bonus paid to such Participant for the three Fiscal Years immediately preceding the Fiscal Year in which the Date of Termination occurs;

 

(b)

If the Participant does not meet the requirements of subsection (a) of this Section but has received an Annual Incentive Bonus for each of the two Fiscal Years immediately preceding the Fiscal Year in which the Date of Termination occurs, then “Applicable Bonus” shall mean the average Annual Incentive Bonus paid to such Participant for the two Fiscal Years immediately preceding the Fiscal Year in which the Date of Termination occurs;

 

(c)

If the Participant does not meet the requirements of either subsection (a) or (b) of this Section but has received an Annual Incentive Bonus for the Fiscal Year immediately preceding the Fiscal Year in which the Date of Termination occurs, then “Applicable Bonus” shall mean the amount of the Annual Incentive Bonus paid to such Participant for the Fiscal Year immediately preceding the Fiscal Year in which the Date of Termination occurs; or

 

(d)

If the Participant does not meet the requirements of either subsection (a), (b) or (c) of this Section, then “Applicable Bonus” shall mean the amount of the Annual Incentive Bonus that such Participant would have been paid for

 

 


 

 

the Fiscal Year in which the Date of Termination occurs had Participant remained employed by the Company or any of its Affiliates through the end of such Fiscal Year or, if later, the date of which Annual Incentive Bonuses for such Fiscal Year are paid (taking into account all applicable performance goals and objectives).

 

If the Annual Incentive Bonus paid to the Participant for any Fiscal Year was reduced or prorated because the Participant was not employed by the Company or any of its Affiliates for the full year, then such Annual Incentive Bonus shall be annualized for purposes of calculating the “Applicable Bonus” as described in this Section.

1.6

Benefits Continuation Period — With respect to any Participant, the period (not to exceed one year) designated as the “Benefits Continuation Period” for such Participant by the Administrator at the time such Participant qualifies as a Participant or at any time while the Participant remains a Participant and as documented on Appendix A.

 

1.7

Board of Directors — The Board of Directors of the Company.

 

1.8

Bonus Multiple — With respect to any Participant, the number or fraction designated as the “Bonus Multiple” for such Participant by the Administrator at the time such Participant qualifies as a Participant or at any time while the Participant remains a Participant and as documented on Appendix A.

 

1.9

Cause — With respect to any Participant:

 

(a)

The Participant’s willful failure to perform his or her duties (other than any such failure resulting from his or her Disability);

 

(b)

The Participant’s willful failure to comply with any valid and legal directive of the person or entity to whom the Participant reports;

 

(c)

The Participant’s conviction of, or entering into a plea of either guilty or nolo contendere to, any felony or any misdemeanor involving material acts of moral turpitude, embezzlement, theft or other similar act;

 

(d)

The Participant’s willful engagement in gross misconduct in the performance of the Participant’s duties;

 

(e)

The Participant’s willful and material violation of any policy of the Company or any of its Affiliates (including the Company’s Code of Conduct);

 

(f)

The Participant’s willful and material violation of the Protection of Sensitive Information, Nonsolicitation and Noncompetition Agreement between such Participant and the Company; or

 

(g)

The Participant’s failure to improve his work performance to an acceptable level after the Participant was previously warned in writing by the Company about poor performance.

 

1.10

COBRA — The Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time.

 

1.11

Code — The Internal Revenue Code of 1986, as amended from time to time.

 

1.12

Company -—EZCORP, Inc., a Delaware corporation, and any successor thereto.

 

1.13

Compensation Committee — The Compensation Committee of the Board of Directors.

 

1.14

Date of Termination —

 

(a)

If the Participant’s Employment is terminated by the Company for Cause, the date of the Participant’s receipt of the Notice of Termination from the Company or such later date specified in the Notice of Termination;

 

(b)

If the Participant’s Employment is terminated by the Participant for Good Reason, the date of the Company’s receipt of the Notice of Termination from the Participant or such later date specified in the Notice of Termination;

 

(c)

If the Participant’s Employment is terminated by the Company other than for Cause or Disability, the date on which the Company notifies the Participant of such termination;

 

 

 


 

 

(d)

If the Participant resigns without Good Reason, the date on which the Participant notifies the Company of such termination; and

 

(e)

If the Participant’s Employment is terminated by reason of the Participant’s death or Disability, the date of death of the Participant or the 30th day after receipt of the Notice of Termination by the Participant, as the case may be.

 

Notwithstanding the foregoing, in no event shall the Date of Termination occur until the Participant experiences a “separation from service” within the meaning of Section 409A of the Code, and the date on which such separation from service takes place shall be the “Date of Termination.”

1.15

Disability — With respect to any Participant, a condition such that the Participant by reason of physical or mental disability becomes unable to perform his or her normal duties for more than 180 days in the aggregate (excluding infrequent or temporary absence due to ordinary transitory illness) during any twelve-month period.

 

1.16

Employment -—With respect to any Participant, such Participant’s full-time employment with the Company or any of its Affiliates.

 

1.17

ERISA — The Employee Retirement Income Security Act of 1974, as amended from time to time.

 

1.18

Fiscal Year — A fiscal year of the Company, consisting of a period of twelve consecutive calendar months commencing October 1 and ending the following September 30.

 

1.19

Good Reason -—With respect to any Participant, actions taken by the Company resulting in a material negative change in such Participant’s Employment, including any of the following actions taken without such Participant’s written consent:

 

(a)

Material diminution in Participant’s position, duties, responsibilities and status with the Company (other than in connection with any of the events or circumstances described in the definition of “Cause” in Section 1.9);

 

(b)

Material reduction in the Participant’s Annual Base Salary or total annual compensation opportunity (other than in connection with any of the events or circumstances described in the definition of “Cause” in Section 1.9);

 

(c)

Material change in geographic location at which Participant regularly performs his or her duties of Employment beyond a 50-mile radius; or

 

(d)

Any other action or inaction that constitutes a material breach by the Company of this Plan with respect to such Participant.

 

In order to invoke a termination of Employment for Good Reason, the Participant shall provide a Notice of Termination to the Company’s General Counsel within 90 days following the initial existence of any of the conditions described in clauses (a) through (d) above, which notice shall specify in reasonable detail the conditions constituting Good Reason. The Company shall have a period of 30 days following receipt of such Notice of Termination during which it may remedy the conditions cited in the Notice of Termination. In the event that the Company fails to remedy such conditions during such 30-day period, in order for the termination of Employment to constitute a termination for Good Reason, the Participant’s “separation from service” (within the meaning of Section 409A) must occur, if at all, on or before the second anniversary of the initial existence of any of the conditions constituting Good Reason. The Participant’s mental or physical incapacity following the occurrence of an event described above in clauses (a) through (d) above shall not affect the Participant’s ability to terminate employment for Good Reason and the Participant’s death following delivery of a Notice of Termination invoking a termination of Employment for Good Reason shall not affect the Participant’s estate’s entitlement to Severance Pay provided hereunder.

1.20

ICP — The EZCORP, Inc. Incentive Compensation Plan, pursuant to which Participants may earn annual incentive bonuses calculated as a multiple of Annual Base Salary.

 

1.21

Notice of Termination — A written notice of the termination of a Participant’s Employment (whether given by the Company or by the Participant) that (a) indicates the specific termination provision in this Plan relied upon and (b) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for the termination of the Participant’s Employment under the provision so indicated. The failure by the Participant or the Company to set forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good Reason

 

 


 

 

or Cause shall not waive any right of the Participant or the Company, respectively, hereunder or preclude the Participant or the Company, respectively, from asserting such fact or circumstance in enforcing the Participant’s or the Company’s respective rights hereunder.

 

1.22

Participant — An individual who qualifies as such pursuant to Article II.

 

1.23

Plan — The EZCORP, Inc. Executive Severance Pay Plan.

 

1.24

PPACA — The Patient Protection and Affordable Care Act of 2010 and the related regulations and guidance promulgated thereunder.

 

1.25

Qualifying Termination — With respect to any Participant, the termination of such Participant’s Employment either (a) by the Company for any reason other than Cause, death, Disability or retirement under a mandatory retirement policy of the Company or any of its Affiliates or (b) by the Participant for Good Reason.

 

1.26

Salary Multiple -—With respect to any Participant, the number or fraction designated as the “Salary Multiple” for such Participant by the Administrator at the time such Participant qualifies as a Participant or at any time while the Participant remains a Participant and as documented on Appendix A.

 

1.27

Section 409A — Section 409A of the Code, and the rules and regulations issued thereunder.

 

1.28

Severance Pay — The benefits described in Article IV that are provided to Participants under this Plan.

ARTICLE II

ELIGIBLE EMPLOYEES

2.1

An employee of the Company becomes eligible to participate in the Plan as of the date the employee is specifically designated by the Administrator in writing as a participant in the Plan (a “Participant”). Appendix A of this Plan document, as it may be updated from time to time by the Administrator, shall at all times contain a current list of Participants along with their Salary Multiple, Bonus Multiple and Benefits Continuation Period. Notwithstanding the foregoing, if a Participant is eligible to receive severance benefits under another plan, agreement or arrangement maintained by the Company, the Participant shall only be entitled to receive severance benefits under this Plan or such other plan, agreement or arrangement, whichever provides the greatest cumulative benefit to the Participant. For the avoidance of doubt, in no event shall a Participant be entitled to receive a Severance Pay under this Plan that would be duplicative of any other severance benefits for which a Participant is eligible under another plan, agreement or arrangement.

 

2.2

The Administrator may remove a person as a Participant by providing written notice of removal to such person and updating Appendix A of this Plan document to remove such person from the list of Participants; provided, however, that no such removal shall be effective at such time as the Participant is entitled to payment of Severance Pay or any other amounts payable under the Plan. Notwithstanding any other provision hereof to the contrary, a Participant who is entitled to payment of Severance Pay or any other amounts under the Plan shall remain a Participant in the Plan until the full amount of the Severance Pay and any other amounts payable under the Plan have been paid to the Participant.

ARTICLE III

ELIGIBILITY FOR SEVERANCE PAY

3.1

A Participant becomes eligible to receive Severance Pay under the Plan upon a Qualifying Termination, provided that the Participant:

 

(a)

Performs all transition and other matters required of the Participant by the Company prior to his or her Qualifying Termination;

 

(b)

Returns to the Company any property of the Company which has come into the Participant’s possession; and

 

(c)

Timely returns (and does not thereafter revoke) a signed and dated original agreement and general release in a form acceptable to the Company, in its sole and absolute discretion (the “Release”), under which the Participant,

 

 


 

 

among other things, releases and discharges the Company and its subsidiaries and affiliates from all claims and liabilities relating to his or her employment with the Company and the termination of his or her employment, including without limitation, claims under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act, the Family Medical and Leave Act, Equal Pay Act, ERISA, the Age Discrimination in Employment Act, the Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the Sarbanes Oxley Act of 2002, the Worker Adjustment and Retraining Notification Act of 1988, and the Older Workers Benefit Protection Act.

 

3.2

If the Participant dies before receiving a portion of his or her Severance Pay under the Plan, any remaining Severance Pay will be paid to the appointed administrator, executor or personal representative of the Participant’s estate no later than March 15th following the calendar year in which the Participant’s death occurs.

ARTICLE IV

AMOUNT OF SEVERANCE PAY

4.1

If the Participant satisfies the requirements of the Plan, including but not limited to the Participant’s completion and non-revocation of the Release, upon a Qualifying Termination, the Participant will be eligible to receive in a lump sum in cash within 10 days after the Date of Termination, the aggregate of the following amounts, which benefits shall be in addition to any other benefits to which the Participant is entitled other than by reason of the Plan:

 

(a)

An amount equal to the Salary Multiple times the Participant’s Annual Base Salary; and

 

(b)

An amount equal to the Bonus Multiple times the Participant’s Applicable Bonus.

 

Notwithstanding the foregoing, if the Participant’s Applicable Bonus is determined under Section 1.5(d), then the amount described in subsection (b) of this Section shall be paid in a lump sum in cash within 10 days after the date of determination of the amount of such Applicable Bonus.

4.2

If the Participant’s employment is terminated under circumstances that entitle the Participant to Severance Pay under Section 4.1, the Company shall provide the Participant and the Participant’s eligible dependents with continued health care, dental and life insurance benefits under the Company’s health care, dental and life insurance benefits programs for the Benefits Continuation Period, which benefits shall be no less than those provided to the Participant and the Participant’s eligible dependents at the time of the Date of Termination; provided, however, that the Participant must comply with all terms and conditions of the applicable plans, including paying the necessary employee contributions; and provided further, however, that, if the Participant becomes reemployed with another employer and becomes eligible to receive health care, dental or life insurance benefits under another employer provided plan, the benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. Benefit continuation will be provided concurrently with any benefits required under COBRA. The difference between the cost for such benefits under COBRA and the amount of the necessary contributions that the Participant is required to pay for such coverage as provided above will be paid by the Company and considered imputed income to the Participant. The Participant is responsible for the payment of income tax due as a result of such imputed income. Notwithstanding the foregoing, if the Company’s providing benefit continuation hereunder would violate the nondiscrimination rules applicable to non-grandfathered plans or would result in imposition of penalties under PPACA, the Company may reform this Section 4.2 in a manner as is necessary to comply with PPACA.

ARTICLE V

EXCISE TAXES

Notwithstanding anything to the contrary in this Plan, if a Participant is a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for in this Plan, together with any other payments and benefits which such Participant has the right to receive from the Company or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Plan shall be either:

(a)

Reduced (but not below zero) so that the present value of such total amounts and benefits received by such Participant from the Company and its Affiliates will be one dollar ($1.00) less than three times such Participant’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by such Participant shall be subject to the excise tax imposed by Section 4999 of the Code, or

 

 


 

 

 

(b)

Paid in full,

 

whichever produces the better net after-tax position to such Participant (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by the Company in good faith. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or its Affiliates used in determining if a “parachute payment” exists, exceeds one dollar ($1.00) less than three times such Participant’s base amount, then such Participant shall be required to immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this Article V shall require the Company to be responsible for, or have any liability or obligation with respect to, such Participant’s excise tax liabilities under Section 4999 of the Code.

ARTICLE VI

PLAN ADMINISTRATION

6.1

The Plan is administered by the Administrator. The Administrator has sole discretion and authority to interpret and make determinations and decisions with respect to the Plan, including the authority to interpret its provisions and construe all of its terms, to authorize the payment of benefits, to establish and enforce such rules and regulations as it shall deem proper for the efficient administration of the Plan, to determine eligibility for benefits under the Plan and to determine the entitlement to and amount of Severance Pay which shall be payable to any person in accordance with the provisions of the Plan. The decision of the Administrator based on the Plan and documents presented to it shall be final, conclusive and binding on all persons.

 

6.2

The Administrator may delegate any or all of its authority and responsibilities with respect to the Plan, on such terms and conditions as it considers appropriate, to the Chief Executive Officer of the Company; provided, however, that all determinations and decisions regarding the Plan and Severance Pay with respect to the Executive Officers may not be delegated and shall be made by the Compensation Committee. All references to “Administrator” herein shall include those persons to whom the Administrator has properly delegated authority and responsibility.

 

6.3

The Administrator is authorized, on behalf of the Plan, to engage accountants, legal counsel and such other personnel as it deems necessary or advisable to assist it in the performance of its duties under the Plan.

 

6.4

The Administrator shall utilize the records of the Company with respect to a Participant’s service with the Company,

employment history, monthly Salary, absences, illnesses and all other relevant matters and such records shall be conclusive for all purposes under the Plan.

ARTICLE VII

CLAIMS PROCEDURES

7.1

Initial Claims — In order to file a claim to receive benefits under the Plan, the Participant or his or her authorized representative must submit a written claim for benefits to the Plan within 60 days after the Participant’s termination of employment. Claims should be addressed and sent to the Administrator. If the Participant’s claim is denied, in whole or in part, the Participant will be furnished with written notice of the denial within 90 days after the Administrator’s receipt of the Participant’s written claim, unless special circumstances require an extension of time for processing the claim, in which case a period not to exceed 180 days will apply. If such an extension of time is required, written notice of the extension will be furnished to the Participant before the termination of the initial 90-day period and will describe the special circumstances requiring the extension, and the date on which a decision is expected to be rendered. Written notice of the denial of the Participant’s claim will contain the following information:

 

(a)

The specific reason or reasons for the denial of the Participant’s claim;

 

 

 


 

 

(b)

References to the specific Plan provisions on which the denial of the Participant’s claim was based;

 

(c)

A description of any additional information or material required by the Administrator to reconsider the Participant’s claim (to the extent applicable) and an explanation of why such material or information is necessary; and

 

(d)

A description of the Plan’s review procedure and time limits applicable to such procedures, including a statement of the Participant’s right to bring a civil action under Section 502(a) of ERISA following a benefit claim denial on review.

 

7.2

Appeal of Denied Claims — If the Participant’s claim is denied and he or she wishes to submit a request for a review of the denied claim, the Participant or his or her authorized representative must follow the procedures described below:

 

(a)

Upon receipt of the denied claim, the Participant (or his or her authorized representative) may file a request for review of the claim in writing with the Administrator. This request for review must be filed no later than 60 days after the Participant has received written notification of the denial.

 

(b)

The Participant has the right to submit in writing to the Administrator any comments, documents, records or other information relating to his or her claim for benefits.

 

(c)

The Participant has the right to be provided with, upon request and free of charge, reasonable access to and copies of all pertinent documents, records and other information that is relevant to his or her claim for benefits.

 

(d)

The review of the denied claim will take into account all comments, documents, records and other information that the Participant submitted relating to his or her claim, without regard to whether such information was submitted or considered in the initial denial of his or her claim.

 

7.3

Administrator’s Response to Appeal — The Administrator will provide the Participant with written notice of its decision within 60 days after the Administrator’s receipt of the Participant’s written claim for review. There may be special circumstances that require an extension of this 60-day period. In any such case, the Administrator will notify the Participant in writing within the 60-day period and the final decision will be made no later than 120 days after the Administrator’s receipt of the Participant’s written claim for review. The Administrator’s decision on the Participant’s claim for review will be communicated to the Participant in writing and will clearly state:

 

(a)

The specific reason or reasons for the denial of the Participant’s claim;

 

(b)

Reference to the specific Plan provisions on which the denial of the Participant’s claim is based;

 

(c)

A statement that the Participant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, the Plan and all documents, records and other information relevant to his or her claim for benefits; and

 

(d)

A statement describing the Participant’s right to bring an action under Section 502(a) of ERISA.

ARTICLE VIII

YOUR RIGHTS UNDER ERISA

8.1

As a Participant in the Plan you are entitled to certain rights and protections under ERISA. ERISA provides that all Plan Participants shall be entitled to:

 

(a)

Examine, without charge, at the Administrator’s office and at other specified locations, such as worksites and union halls, all documents governing the plan and a copy of the latest annual report (Form 5500 Series) filed by the Plan with the U.S. Department of Labor and available at the Employee Benefits Security Administration;

 

(b)

Obtain, upon written request to the Administrator, copies of documents governing the operation of the Plan and copies of the latest annual report (Form 5500 Series) and updated summary plan description. The Administrator may impose a reasonable charge for the copies; and

 

 


 

 

 

(c)

Receive a summary of the Plan’s annual financial report. The Administrator is required by law to furnish each Participant with a copy of this summary annual report.

 

8.2

In addition to creating rights for Plan Participants, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan Participants and beneficiaries. No one, including your employer, your union, or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a welfare benefit under the Plan or exercising your rights under ERISA.

 

8.3

If your claim for a welfare benefit is denied or ignored, in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules. Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents or the latest annual report from the Plan and do not receive it within 30 days, you may file suit in a federal court. In such a case, the court may require the Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Administrator. If you have a claim for benefits that is denied or ignored, in whole or in part, you may file suit in a state or federal court. If it should happen that Plan fiduciaries misuse the Plan’s money, or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees if, for example, it finds your claim is frivolous.

 

If you have any questions about the Plan, you should contact the Administrator at: Administrator, EZCORP, Inc., 1901 Capital Parkway, Austin, Texas 78746 or (512) 314-3400. If you have any questions about this statement or about your rights under ERISA, or if you need assistance in obtaining documents from the Administrator, you should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or 200 Constitution Avenue N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.

ARTICLE IX

MISCELLANEOUS

9.1

Taxes — The Company shall have authority to withhold or cause to have withheld applicable income and payroll taxes from any payments made under the Plan to the extent required by law.

 

9.2

Limitation on Rights Conferred Under Plan — The Plan shall not be deemed to constitute a contract of employment or impose on the Company any obligation to retain any Participant as an employee, to continue any Participant’s current employment status or to change any employment policies of the Company, nor shall any provision hereof restrict the right of the Company to discharge any of its employees or restrict the right of any such employee to terminate his or her employment with the Company.

 

9.3

Unfunded Obligation — The Plan is an unfunded employee welfare benefit plan as defined in Section 3(1) of ERISA. Severance Pay provided for under the Plan shall be paid from the general assets of the Company if and when such Severance Pay is owed. No Participant, employee of the Company or any other person shall have any rights to or interest in any specific assets or accounts of the Company or any of its affiliates by reason of the Plan.

 

9.4

Amendment and Termination — Subject to Section 2.2 above, the Company reserves the right, in its sole and absolute discretion, to amend, modify or terminate the Plan, in whole or in part, at any time or for any reason.

 

9.5

Severability — Should any provisions of the Plan be deemed or held to be unlawful or invalid for any reason, such fact shall not adversely affect the other provisions of the Plan unless such determination shall render impossible or impracticable the functioning of the Plan, and in such case, an appropriate provision or provisions shall be adopted so that the Plan may continue to function properly.

 

 

 


 

 

9.6

Assignment - The rights of a Participant under the Plan are personal. No interest of a Participant under the Plan may be assigned, transferred, seized by legal process or subjected to the claims of creditors in any way. A Participant’s rights under the Plan are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge or encumbrance.

 

9.7

Governing Law - The Plan shall be construed according to the laws of Delaware, without reference to principles of conflict of law, except as preempted by ERISA or other applicable federal law.

 

9.8

Clawback - Notwithstanding any provisions in the Plan to the contrary, any compensation, payments, or benefits provided hereunder, whether in the form of cash or otherwise, shall be subject to a clawback to the extent necessary to comply with the requirements of any applicable law, including but not limited to, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, section 304 of the Sarbanes Oxley Act of 2002, or any regulations promulgated thereunder, or any policy adopted by the Company pursuant to any such law (whether in existence as of the Effective Date or later adopted).

 

9.9

Application of Section 409A -

 

(a)

General - The Plan is intended to comply with the requirements of Section 409A or an exemption or exclusion therefrom and, with respect to amounts that are subject to Section 409A, shall in all respects be administered in accordance with Section 409A. Any payments that qualify for the “short-term deferral” exception or another exception under Section 409A shall be paid under the applicable exception. Each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of Section 409A. All payments to be made upon a termination of employment under this Plan may only be made upon a “separation from service” under Section 409A. In no event may the Participant, directly or indirectly, designate the calendar year of any payment under this Plan.

 

(b)

In-Kind Benefits and Reimbursements — Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind benefits provided under the Plan shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Participant’s lifetime (or during a shorter period of time specified in the Plan), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, except, if such benefits consist of the reimbursement of expenses referred to in Section 105(b) of the Code, a maximum, if provided under the terms of the plan providing such medical benefit, may be imposed on the amount of such reimbursements over some or all of the period in which such benefit is to be provided to the Participant as described in Treasury Regulation Section 1.409A-3(i)(iv)(B), (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, provided that the Participant shall have submitted an invoice for such fees and expenses at least ten days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

(c)

Delay of Payments — Notwithstanding any other provision of this Plan to the contrary, if the Participant is considered a “specified employee” for purposes of Section 409A (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A that is otherwise due to the Participant under this Plan during the six-month period following the Participant’s separation from service (as determined in accordance with Section 409A) on account of the Participant’s separation from service shall be accumulated and paid to the Participant on the first business day after the date that is six months following the Participant’s separation from service. No interest will be paid by the Company with respect to any such delayed payments. If the Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A shall be paid to the personal representative of the Participant’s estate on the first to occur of the date specified above or 30 days after the date of the Participant’s death.

 

 


 

 

ARTICLE X

ADDITIONAL INFORMATION

Plan Name

 

EZCORP, Inc. Executive Severance Pay Plan

 

 

 

 

 

 

 

Fiscal Year of Plan

 

October 1 through September 30

 

 

 

 

 

 

 

Type of Plan

 

Welfare Plan

 

 

 

 

 

 

 

Plan Sponsor

 

EZCORP, Inc.

 

 

 

 

1901 Capital Parkway

 

 

 

 

Austin, Texas 78746

 

 

 

 

 

 

 

 

 

Phone: (512) 314-3400

 

 

 

 

 

 

 

 

 

Employer I.D. Number: 74-2540145

 

 

 

 

 

 

 

Plan Administrator

 

EZCORP, Inc.

 

 

 

 

1901 Capital Parkway

 

 

 

 

Austin, Texas 78746

 

 

 

 

 

 

 

 

 

Phone: (512) 314-3400

 

 

 

 

 

 

 

Agent for Service of Legal Process    

 

The Plan Administrator, at the address specified above.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

This Executive Severance Pay Plan is hereby adopted as of the Effective Date set forth above.

EZCORP, INC.

 

By:     /s/ Thomas H. Welch, Jr.    

Name:    Thomas H. Welch, Jr.

Title:    Senior Vice President,

General Counsel and Secretary