UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 17, 2014
AMERICA’S CAR-MART, INC.
(Exact name of registrant as specified in its
charter)
| Texas |
0-14939 |
63-0851141 |
| (State or other jurisdiction of incorporation) |
(Commission file number) |
(I.R.S. Employer Identification No.) |
802 SE Plaza Avenue, Suite 200, Bentonville,
Arkansas 72712
(Address of principal executive
offices, including zip code)
(479) 464-9944
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 1.01. | | Entry into a Material Definitive Agreement. |
On October 8, 2014, America’s
Car-Mart, Inc., a Texas corporation (the “Company”), and its subsidiaries, Colonial Auto Finance, Inc., an Arkansas
corporation (“Colonial”), America’s Car Mart, Inc., an Arkansas corporation (“ACM”), and Texas Car-Mart,
Inc., a Texas corporation (“TCM”), entered into Amendment No. 5 to the Amended and Restated Loan and Security Agreement
(“Agreement”), dated as of March 9, 2012, by and among the Company, Colonial, ACM, TCM and a group of lenders.
Amendment No. 5 to the
Agreement (the “Amendment”) amends the Company’s $145 million credit facility ($200 million including the option
to request revolver commitment increases for up to an additional $55 million). The Amendment extends the term of the Company’s
revolving credit facilities to October 8, 2017.
The Amendment provides
for a new pricing tier for determining the applicable interest rate, based on the Company’s consolidated leverage ratio for
the preceding fiscal quarter, and provides for a 0.125% increase in each of the three existing pricing tiers for determining the
applicable interest rate. The current applicable interest rate under the Amendment is generally LIBOR plus 2.375%. Borrowings are
secured primarily by accounts receivable and inventory of the respective subsidiaries. The Amendment enhances the advances available
to Colonial on its accounts receivable by adding advances at rates ranging from 45% to 50% on medium-term and long-term vehicle
contracts, in addition to existing Colonial advance rates of up to 55% for all other contracts. The effect of the changes results
in additional borrowing availability to support the Company’s growth.
The Amendment also amends
one of two alternative distribution limitations related to repurchases of the Company’s stock. With respect to such limitation,
the Amendment (i) resets the $40 million aggregate limit on repurchases beginning with the effective date of the Amendment (updated
from March 9, 2012), (ii) redefines the aggregate amount of repurchases to be net of proceeds received from the exercise of stock
options, and (iii) changes the requirement that the sum of borrowing bases combined minus the principal balances of all revolver
loans after giving effect to such repurchases be equal to or greater than 30% (increased from 25%) of the sum of the borrowing
bases. The Amendment does not change the alternative distribution limitation that allows Company stock repurchases so long as the
aggregate amount of such repurchases does not exceed 75% of the consolidated net income of the Company measured on a trailing twelve
month basis; provided that immediately before and after giving effect to the stock repurchases, at least 12.5% of the aggregate
funds committed under the credit facilities remain available.
The Amendment required
a closing fee of $217,500 and an arrangement fee of $32,500.
The description above
is a summary and is qualified in its entirety by Amendment No. 5 to the Agreement, which is filed as an exhibit to this report
and is incorporated herein by reference.
| Item 2.03. | | Creation of a Direct Financial Obligation or an Obligation under an Off- Balance
Sheet Arrangement of a Registrant. |
The information
set forth above under Item 1.01 is hereby incorporated by reference into this Item 2.03.
| Item 5.02. | | Departure of Directors or Certain Officers; Election of Directors; Appointment
of Certain Officers; Compensatory Arrangement of Certain Officers. |
On September 17, 2014,
the Compensation Committee (the “Compensation Committee”) of the Board of Directors of the Company approved the America’s
Car-Mart, Inc. Nonqualified Deferred Compensation Plan (the “Plan”). The plan is an unfunded, nonqualified deferred
compensation plan designed to allow a select group of management or highly compensated employees of the Company, including the
named executive officers of the Company to save for retirement on a tax-deferred basis. The eligibility of each participant will
be determined by the Compensation Committee. The Plan is intended to comply with the requirements of 409A if the Internal Revenue
Code of 1986, as amended.
The Plan constitutes an
unsecured promise by the Company to pay benefits in the future. Participants in the Plan shall have the status of general unsecured
creditors of the Company. The Company (or one or more of its subsidiaries) is solely responsible for paying benefits to its participants
and their beneficiaries.
The description above is
a summary and is qualified in its entirety by reference to the Plan, which is filed as an exhibit to this report and is incorporated
herein by reference.
| Item 9.01. | | Financial Statements and Exhibits. |
(d) Exhibits.
| 4.1 | Amended and Restated Loan and Security Agreement dated March 9, 2012, among America’s Car-Mart,
Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s Car Mart, Inc., an
Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions, as Lenders,
with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit 4.1 to
the Company’s Current Report on Form 8-K filed with the SEC on March 12, 2012). |
| 4.2 | Amendment No. 1 to Amended and Restated Loan and Security Agreement dated September 20, 2012, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.3 to the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2012). |
| 4.3 | Amendment No. 2 to Amended and Restated Loan and Security Agreement dated February 4, 2013, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.8 to the Company’s Quarterly Report on Form 10-Q for the quarter ended January 31, 2013 filed with the SEC on March 1,
2013). |
| 4.4 | Amendment No. 3 to Amended and Restated Loan and Security Agreement dated June 24, 2013, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.4 to the Company’s Current Report on Form 8-K filed with the SEC on June 28, 2013). |
| 4.5 | Amendment No. 4 to Amended and Restated Loan and Security Agreement dated February 13, 2014, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.5 to the Company’s Current Report on Form 8-K filed with the SEC on February 19, 2014). |
| 4.6 | Amendment No. 5 to Amended and Restated Loan and Security Agreement dated October 8, 2014, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager. |
| 10.1 | America’s Car-Mart, Inc. Nonqualified Deferred Compensation Plan. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
| |
|
America’s
Car-Mart, Inc.
|
|
| Date: October 10, 2014 |
|
/s/ Jeffrey A. Williams |
|
| |
|
Jeffrey A. Williams |
| |
|
Chief Financial Officer and Secretary |
| |
|
(Principal Financial and Accounting Officer) |
Exhibit Index
| 4.1 | Amended and Restated Loan and Security Agreement dated March 9, 2012, among America’s Car-Mart,
Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s Car Mart, Inc., an
Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions, as Lenders,
with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit 4.1 to
the Company’s Current Report on Form 8-K filed with the SEC on March 12, 2012). |
| 4.2 | Amendment No. 1 to Amended and Restated Loan and Security Agreement dated September 20, 2012, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.3 to the Company’s Current Report on Form 8-K filed with the SEC on September 21, 2012). |
| 4.3 | Amendment No. 2 to Amended and Restated Loan and Security Agreement dated February 4, 2013, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.8 to the Company’s Quarterly Report on Form 10-Q for the quarter ended January 31, 2013 filed with the SEC on March 1,
2013). |
| 4.4 | Amendment No. 3 to Amended and Restated Loan and Security Agreement dated June 24, 2013, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.4 to the Company’s Current Report on Form 8-K filed with the SEC on June 28, 2013). |
| 4.5 | Amendment No. 4 to Amended and Restated Loan and Security Agreement dated February 13, 2014, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager (Incorporated by reference to Exhibit
4.5 to the Company’s Current Report on Form 8-K filed with the SEC on February 19, 2014). |
| 4.6 | Amendment No. 5 to Amended and Restated Loan and Security Agreement dated October 8, 2014, among
America’s Car-Mart, Inc., a Texas corporation, as Parent; Colonial Auto Finance, Inc., an Arkansas corporation, America’s
Car Mart, Inc., an Arkansas corporation, and Texas Car-Mart, Inc., a Texas corporation, as Borrowers; and certain financial institutions,
as Lenders, with Bank of America N.A., as Administrative Agent, Lead Arranger and Book Manager. |
| 10.1 | America’s Car-Mart, Inc. Nonqualified Deferred Compensation Plan. |
Exhibit 4.6
AMENDMENT NO.
5 TO
AMENDED AND RESTATED
LOAN AND SECURITY
AGREEMENT
This AMENDMENT NO. 5
TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (“Amendment”) is dated as of October 8, 2014 and is
entered into by and among AMERICA’S CAR-MART, INC., a Texas corporation (“Parent”), COLONIAL
AUTO FINANCE, INC., an Arkansas corporation (“Colonial”), AMERICA’S CAR MART, INC., an Arkansas
corporation (“ACM”), TEXAS CAR-MART, INC., a Texas corporation (“TCM”)(each of Colonial,
ACM and TCM, a “Borrower”, and collectively, “Borrowers”), the financial institutions party
to the Loan Agreement (as hereinafter defined) as lenders (collectively, “Lenders”), BANK OF AMERICA, N.A.,,
as administrative agent for the Lenders (“Agent”) and lead arranger and book manager for the Lenders. All capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to them in the Loan Agreement (as hereinafter defined).
WITNESSETH
WHEREAS, Parent,
Borrowers, Lenders and Agent have entered into that certain Amended and Restated Loan and Security Agreement dated as of March
9, 2012 (as previously amended, amended and restated, modified, supplemented or renewed, the “Loan Agreement”);
WHEREAS, Parent,
Borrowers, Lenders and Agent have agreed to amend the Loan Agreement subject to the terms and conditions stated herein; and
NOW, THEREFORE,
in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Lenders, Agent, Parent and Borrowers hereby agree as follows:
I.
Amendments to the Loan Agreement.
A.
The definition of “ACM-TCM Revolver Termination Date” as set forth in Section 1.1 of the Loan Agreement
is hereby amended and restated in its entirety as follows:
ACM-TCM Revolver
Termination Date: October 8, 2017.
B.
The definition of “Colonial Contracts Advance Rate” as set forth in Section 1.1 of the Loan Agreement
is hereby amended and restated in its entirety as follows:
Colonial
Contracts Advance Rate: 45% with respect to Long Term Contracts, 50% with respect to Medium Term Contracts and 55% with respect
to all other Vehicle Contracts; provided, however, that the applicable Contracts Advance Rate shall be reduced by
0.25% for each 0.25% (or portion thereof) that the Contracts Advance Rate Adjustment Percent for the month immediately preceding
the date of determination exceeds 35%; in each instance such adjustment shall be calculated as of the last day of each month and
shall be effective as of the first day of the month immediately following the date of determination, based upon information delivered
by Borrowers to Agent pursuant to Section 8. For example, if the Colonial Contracts Advance Rate Adjustment Percent is 35.10%,
the Colonial Contracts Advance Rate shall be 44.75% with respect to Long Term Contracts, 49.75% with respect to Medium Term Contracts
and 54.75% with respect to all other Vehicle Contracts; if the Colonial Contracts Advance Rate Adjustment Percent is 35.30%, the
Colonial Contracts Advance Rate shall be 44.50% with respect to Long Term Contracts, 49.50% with respect to Medium Term Contracts
and 54.50% with respect to all other Vehicle Contracts; if the Colonial Contracts Advance Rate Adjustment Percent is 35.6%, the
Colonial Contracts Advance Rate shall be 44.25% with respect to Long Term Contracts, 49.25% with respect to Medium Term Contracts
and 54.25% with respect to all other Vehicle Contracts; if the Colonial Contracts Advance Rate Adjustment Percent is 35.90%, the
Colonial Contracts Advance Rate shall be 44% with respect to Long Term Contracts, 49% with respect to Medium Term Contracts and
54% with respect to all other Vehicle Contracts; if the Colonial Contracts Advance Rate Adjustment Percent is 36.10%, the Colonial
Contracts Advance Rate shall be 43.75% with respect to Long Term Contracts, 48.75% with respect to Medium Term Contracts and 53.75%
with respect to all other Vehicle Contracts; and so on.
C.
The definition of “Amendment No. 5 Effectiveness Date” is hereby added to Section 1.1 of the Loan Agreement
in alphabetical order as follows:
Amendment
No. 5 Effectiveness Date: October 8, 2014.
D.
The definition of “Applicable Margin” as set forth in Section 1.1 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
Applicable
Margin: with respect to any Type of Revolver Loan, the margin set forth below, as determined by the Leverage Ratio for the
last Fiscal Quarter:
|
Level |
Leverage Ratio |
Base Rate Revolver Loans |
LIBOR Revolver Loans |
| I |
< 0.75:1.00 |
0% |
2.250% |
| II |
> 0.75:1.00 and < 1.25:1.00 |
0% |
2.375% |
| III |
> 1.25:1.00 and < 1.50:1.00 |
0.25% |
2.625% |
| IV |
> 1.50:1.00 |
0.50% |
2.875% |
| |
|
|
|
The margins
shall be subject to increase or decrease upon receipt by Agent pursuant to Section 10.1.2 of the financial statements and
corresponding Compliance Certificate for the last Fiscal Quarter, which change shall be effective on the first day of the calendar
month following receipt. If, by the first day of a month, any financial statements and Compliance Certificate due in the preceding
month have not been received, then the margins shall be determined as if Level IV were applicable, from such day until the first
day of the calendar month following actual receipt.
In addition
to the determination of the margins as set forth above, if any financial statements delivered to Agent reflect that Fixed Charge
Coverage Ratio is less than 1.10:1.00, the Applicable Margin in effect shall be increased by 0.50% effective on the first day of
the calendar month following delivery of such financial statements and continuing until a subsequent financial statements and compliance
certificate are delivered as set forth above, reflecting a Fixed Charge Coverage Ratio equal to or in excess of 1.10:1.00.
E.
The definition of “Colonial Revolver Termination Date” as set forth in Section 1.1 of the Loan Agreement
is hereby amended and restated in its entirety as follows:
Colonial
Termination Date: October 8, 2017.
F.
The definition of “Consumer Finance Laws” is hereby added to Section 1.1 of the Loan Agreement in alphabetical
order as follows:
Consumer
Finance Laws: all Applicable Laws governing or relating to the extension of consumer credit, the creation of a security interest
in personal property or a mortgage in real property in connection with the consumer credit, the collection of consumer debt and
the protection of consumers’ interests in connection with consumer credit transactions (including with respect to the advertising,
solicitation, underwriting, origination, assignment, administration, servicing and collection thereof), including without limitation,
any usury laws, any privacy laws, discriminatory lending laws, predatory lending laws, the Federal Consumer Credit Protection
Act, the Federal Fair Credit Reporting Act, and Fair and Accurate Credit Transactions Act, the Equal Credit Opportunity Act and
any regulations related thereto, the Fair Debt Collections Practices Act, RESPA, the Magnuson-Moss Warranty Act, the Servicemember’s
Civil Relief Act, the Gramm-Leach-Bliley Act, the Dodd–Frank Wall Street Reform and Consumer Protection Act, the Federal
Trade Commission’s Rules and Regulations, the rules and regulations promulgated by the Consumer Financial Protection Bureau
(including Regulations B, M, N, O P, V, X and Z) and Regulations B and Z of the Federal Reserve Board, as any of the foregoing
may be amended from time to time.
G.
The definition of “Credit Guidelines” as set forth in Section 1.1 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
Credit
Guidelines: Borrowers’ guidelines (delivered to Agent prior to the Closing Date) which state in detail the credit criteria
used by Borrowers in determining the creditworthiness of Contract Debtors and the collection criteria used by Borrowers in collection
of amounts due from Contract Debtors.
H.
The definition of “Distribution” as set forth in Section 1.1 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
Distribution:
any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind and for the
purpose of calculating Fixed Charges, net of proceeds from exercise of stock options); any distribution, advance or repayment of
Debt to a holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest.
I.
Clause (l) of the definition of “Eligible Vehicle Contracts” as set forth in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety by deleting and replacing it with the following:
(l) (A)
the original term of the Vehicle Contract is not more than 60 months, (B) if the original term of the Vehicle Contract is greater
than 36 months but no greater than 42 months (“Medium Term Contracts”), then the aggregate amount of Colonial
Net Eligible Contract Payments attributable to such Medium Term Contracts at no time exceeds 10% of the Colonial Net Balance,
and (C) if the original term of the Vehicle Contract is greater than 42 months but no greater than 60 months (“Long Term
Contracts”), then the aggregate amount of Colonial Net Eligible Contract Payments attributable to such Long Term Contracts
at no time exceeds 5% of the Colonial Net Balance;
J.
The definition of “Permitted Asset Disposition” as set forth in Section 1.1 of the Loan Agreement is
hereby amended and restated in its entirety as follows:
Permitted
Asset Disposition: as long as no Default or Event of Default exists and all Net Proceeds are remitted to Agent for application
to the Obligations, an Asset Disposition that is (a) a sale of Inventory in the Ordinary Course of Business; (b) a disposition
of Equipment that, in the aggregate during any 12-month period, has a fair market or book value (whichever is more) of $100,000
or less; (c) a disposition of Inventory that is obsolete, unmerchantable or otherwise unsalable in the Ordinary Course of Business;
(d) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably
be expected to have a Material Adverse Effect and does not result from an Obligor’s default; (e) Permitted Sale/Leaseback;
(f) a Permitted Contract Sale; or (g) approved in writing by Agent and Required Lenders.
K.
Upon the effectiveness of this Amendment, the consent of Agent and Lenders with respect to “Vehicle Contract Sales”
(as set forth in that certain Amendment No. 4 to Amended and Restated Loan and Security Agreement by and between Agent, Lenders
and Borrowers dated as of February 13, 2014) is no longer effective and the definition of “Permitted Contract Sale”
is hereby added to Section 1.1 of the Loan Agreement in alphabetical order as follows:
Permitted
Contract Sale: A sale of Vehicle Contracts to a third party approved Agent (which approval will not be unreasonably withheld)
and its Affiliates which satisfy the following conditions:
(a) immediately
before and after giving effect to each such sale, no Default or Event of Default exists,
(b) each
Vehicle Contract disposed pursuant to such sale is not an Eligible Vehicle Contract or the original term of the Vehicle Contract
is in excess of 36 months,
(c) the
cash consideration received by ACM for each Vehicle Contract disposed pursuant to such sale is equal to or greater than ACM’s
investment plus costs with respect to such Vehicle Contract and such cash consideration is paid to ACM in full promptly after the
consummation of such sale, and
(d) each
such sale is non-recourse to Borrowers or their Affiliates except for ACM’s repurchase obligations set forth in the documents
evidencing the applicable sale which is to be exercised solely with respect to Vehicle Contracts which do not satisfy the representations
and warranties set forth in the documents evidencing the applicable sale.
L.
The definition of “Permitted Distributions” as set forth in Section 1.1 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
Permitted
Distributions: Distributions by
(i) the
Subsidiaries of Parent to Parent in an aggregate amount not greater than $50,000 per year in order to provide the funds necessary
for Parent to repay its obligations under the AFI Note, so long as no Default or Event of Default exists immediately before and
after giving effect to such Distribution, and
(ii) Parent
to its Equity Interest Holders in order to repurchase Parent’s stock from such holders so long as:
(a) (1)
immediately before and after giving effect to such repurchase, the aggregate amount of such repurchases consummated after the Amendment
No. 5 Effectiveness Date does not exceed $40,000,000 (net of proceeds received from exercise of stock options),
(2) the sum
of: (w) the amount under clause (b) of the Colonial Borrowing Base minus the principal balance of all Colonial Revolver Loans,
and (x) the amount of the ACM-TCM Borrowing Base minus the principal balance of all ACM-TCM Revolver Loans, immediately after
giving effect to such repurchase is equal to or greater than 30% of the sum of (y) the amount under clause (b) of the Colonial
Borrowing Base, and (z) the amount of the ACM-TCM Borrowing Base, immediately after giving effect to such repurchase, and
(3) no Default
or Event of Default exists immediately before and after giving effect to any such repurchase, or
(b) if
such repurchase is not permitted under clause (ii)(a) above,
(1) immediately
before and after giving effect to such repurchase (net of proceeds received from exercise of stock options), the aggregate amount
of such repurchases does not exceed 75% of the consolidated net income of Parent and its Subsidiaries measured on a trailing twelve
month basis, and
(2) no Default
or Event of Default exists immediately before and after giving effect to any such repurchase; provided, that no Distributions under
clause (ii) above shall be permitted if immediately before and after giving effect thereto the sum of the Colonial Availability
and ACM-TCM Availability is less than 12.5% of the aggregate Revolver Commitments.
M.
The definition of “Vehicle Contract Compliance Requirements” as set forth in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
Vehicle Contract
Compliance Requirements: all Applicable Laws (including Consumer Finance Laws) established from time to time by any local,
state or federal agency with respect to the form and substance of consumer finance contracts, including but not limited to Regulation
Z of the Truth in Lending Act (TILA) of 1968.
N.
Section 9.1.13 of the Loan Agreement is hereby amended and restated in its entirety as follows:
9.1.13 Compliance
with Laws. Parents and its Subsidiaries are in compliance in all material respects with all Applicable Laws (including Consumer
Finance Laws) and material to the conduct of its business and operations; each Borrower possesses all the franchises, permits,
licenses, certificates of compliance and approval and grants of authority necessary or required in the conduct of its business
and the same are valid, binding, enforceable and subsisting without any defaults thereunder or enforceable adverse limitations
thereon, and are not subject to any proceedings or claims opposing the issuance, development or use thereof or contesting the validity
thereof; and no approvals, waivers or consents, governmental (federal, state or local) or non-governmental, under the terms of
contracts or otherwise, are required by reason of or in connection with such Borrower’s execution and performance of the
Loan Documents.
O.
Section 10.1.5 of the Loan Agreement is hereby amended and restated in its entirety as follows:
10.1.5 Compliance
with Laws. (a) Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and
laws regarding collection and payment of Taxes, and maintain all Governmental Approvals necessary to the ownership of its Properties
or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could
not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental
Release occurs at or on any Properties of Parent or any of its Subsidiaries, it shall act promptly and diligently to investigate
and report to Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial action to eliminate,
such Environmental Release, whether or not directed to do so by any Governmental Authority.
(b) Comply
in all material respects with all Consumer Finance Laws and Vehicle Contract Compliance Requirements, and the provisions and requirements
of all franchises, permits, certificates of compliance and approval issued by regulatory authorities and other like grants of authority
held by Borrowers relating to consumer credit; and notify Administrative Agent immediately (and in detail) of any actual or alleged
failure to comply with or perform, breach, violation or default under any such Consumer Finance Laws or under the terms of any
of such franchises or licenses, grants of authority, or of the occurrence or existence of any facts or circumstances which with
the passage of time, the giving of notice or otherwise could create such a breach, violation or default or could occasion the termination
of any of such franchises or grants of authority (which Agent will thereafter deliver to Lenders).
P.
Section 10.1.15 is hereby added to the Loan Agreement as follows:
10.1.15 Credit
Guidelines. Borrowers’ Credit Guidelines shall at all times comply in all material respects with all requirements of
Applicable Law (including, but not limited to, Consumer Finance Laws and laws relating to usury, truth-in-lending, fair lending,
predatory and abusive lending, consumer credit protection, fair credit reporting, equal credit opportunity, unfair and deceptive
practices and disclosure obligations related thereto).
Q.
Section 10.2.1 of the Loan Agreement is hereby amended by adding clause (k) thereto as follows:
(k) Debt
consisting of deferred employee compensation incurred in the Ordinary Course of Business.
R.
Section 10.2.22 of the Loan Agreement is hereby amended and restated in its entirety as follows:
10.2.22 Credit
Guidelines. Make any changes in the Credit Guidelines which were provided to and reviewed by Agent and Lenders prior to the
Closing Date without prior written notice to Agent (it being understood and agreed that Agent may lower advance rates, establish
Availability Reserves or adjust the criteria of ineligibility in the definition of “Eligible Contracts” based on (and
reasonably related to) such change in the Credit Guidelines).
S.
Section 10.2.26 of the Loan Agreement is hereby amended and restated in its entirety as follows:
10.2.26 Reserved.
II.
Post Effectiveness Requirements. Within 30 days after the date of this Amendment (or such longer time period
as approved by Agent), Borrowers shall provide to Agent a written opinion of counsel, in form and substance and by a law firm satisfactory
to Agent, with respect to the compliance of Borrowers’ form Contracts (in each state where such Contract is used) with the
applicable Consumer Finance Laws.
III.
Conditions. The effectiveness of this Amendment is subject to the satisfaction of the following conditions
precedent:
A.
Amendment. Fully executed copies of this Amendment signed by Parent, Borrowers and Lenders shall have been delivered
to Agent.
B.
Other Documents. Borrowers shall have executed and delivered to Agent such other documents and instruments as Agent
may reasonably require.
IV.
Miscellaneous.
A.
Survival of Representations and Warranties. All representations and warranties made in the Loan Agreement or any
other document or documents relating thereto, including, without limitation, any Loan Document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Agent
or the Lenders shall affect the representations and warranties or the right of Agent or the Lenders to rely thereon.
B.
Reference to Loan Agreement. The Loan Agreement, each of the Loan Documents, and any and all other agreements, documents
or instruments now or hereafter executed and delivered pursuant to the terms hereof, or pursuant to the terms of the Loan Agreement
as amended hereby, are hereby amended so that any reference therein to the Loan Agreement shall mean a reference to the Loan Agreement
as amended hereby.
C.
Loan Agreement Remains in Effect. The Loan Agreement and the Loan Documents, as amended hereby, remain in full force
and effect and Parent and each Borrower ratifies and confirms its agreements and covenants contained therein. Parent and each
Borrower hereby confirms that to the best of its knowledge no Event of Default or Default exists.
D.
Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held
to be invalid or unenforceable.
E.
Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute one and the same instrument.
F.
Headings. The headings, captions and arrangements used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.
G.
NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT
BETWEEN LENDERS, AGENT AND BORROWERS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN AGENT, LENDERS AND BORROWERS.
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
IN WITNESS WHEREOF,
the parties have executed this Amendment under seal on the date first written above.
| |
BORROWERS: |
| |
COLONIAL AUTO FINANCE, INC.,
an Arkansas corporation |
| |
By: |
/s/ Jeffrey A. Williams |
| |
Name: |
Jeffrey A. Williams |
| |
Title: |
Vice President |
| |
|
| |
|
| |
AMERICA’S CAR MART, INC.,
an Arkansas corporation |
| |
By: |
/s/ Jeffrey A. Williams |
| |
Name: |
Jeffrey A. Williams |
| |
Title: |
Vice President |
| |
|
| |
|
| |
TEXAS CAR-MART, INC.,
a Texas corporation |
| |
By: |
/s/ Jeffrey A. Williams |
| |
Name: |
Jeffrey A. Williams |
| |
Title: |
Vice President |
| |
|
| |
|
| |
|
|
|
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
| |
PARENT: |
| |
AMERICA’S CAR-MART, INC.,
a Texas corporation |
| |
By: |
/s/ Jeffrey A. Williams |
| |
Name: |
Jeffrey A. Williams |
| |
Title: |
CFO |
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|
|
|
|
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
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AGENT AND LENDERS: |
|
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BANK OF AMERICA, N.A.,
as Agent and Lender |
| |
By: |
/s/ Carlos Gil |
| |
Name: |
Carlos Gil |
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Title: |
Senior Vice President |
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
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BOKF, NA D/B/A BANK OF ARKANSAS,
as Lender |
| |
By: |
/s/ Jacob Hudson |
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Name: |
Jacob Hudson |
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Title: |
Vice President |
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as Lender |
| |
By: |
/s/ Stephen D. Anderson |
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Name: |
Stephen D. Anderson |
| |
Title: |
VP |
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
| |
ARVEST BANK,
as Lender |
|
| |
By: |
/s/ Robert Bresnahan |
| |
Name: |
Robert Bresnahan |
|
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Title: |
AVP |
|
[Signatures
continue on the following page.]
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
| |
COMMERCE BANK,
as Lender |
| |
By: |
/s/ Aaron Stone |
| |
Name: |
Aaron Stone |
| |
Title: |
Vice President |
Signature
Page to Amendment No. 5 to Amended and Restated Loan and Security Agreement
Exhibit 10.1
AMERICA’S CAR-MART, INC.
NONQUALIFIED DEFERRED COMPENSATION
PLAN
AMERICA’S CAR-MART, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
PURPOSE
America’s Car-Mart, Inc., a Texas
corporation (the “Company”), has established the America’s Car-Mart, Inc. Nonqualified Deferred Compensation
Plan (the “Plan”) effective as of September 17, 2014 for the benefit of a select group of management and highly
compensated employees as described in Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, including Officers, who contribute materially
to the continued growth, development and future business success of the Company and its affiliates.
The Plan shall be unfunded for tax purposes
and for purposes of Title I of ERISA. The Plan shall be interpreted, construed, administered and operated in good faith in a manner
that satisfies the requirements of Section 409A of the Code and applicable guidance issued thereunder. Nothing in the Plan shall
be construed as an entitlement to or guarantee of any particular tax treatment to a Participant.
ARTICLE
1.
DEFINITIONS
As used within this document, the following
words and phrases have the meanings described in this Article 1 unless a different meaning is required by the context. Some of
the words and phrases used in the Plan are not defined in this Article 1, but for convenience, are defined as they are introduced
into the text. Words in the masculine gender shall be deemed to include the feminine gender. Any headings used are included for
ease of reference only and are not to be construed so as to alter any of the terms of the Plan.
1.1
“Account Balance” shall mean, with respect to a Participant, a credit on the records of the Company equal
to the sum of the Participant’s Deferral Account balance and any subaccounts established thereunder. The Account Balance
shall be a bookkeeping entry only and shall be used solely as a device for the measurement and determination of the amounts to
be paid to a Participant, or his or her designated Beneficiary, pursuant to the Plan.
1.2
“Administrator” shall mean the Committee described in Article 8 to administer the Plan, or such other
person or persons to whom the Committee has delegated its duties pursuant to Article 8.
1.3
“Affiliate” shall mean any corporation or other entity (other than the Company) controlled by the Company
or under common control with the Company. For purposes of this definition, “control” (including with correlative meanings,
the terms “controlled by” or “under common control with”), as used with respect to any entity,
shall mean the possession, directly or indirectly, of fifty percent (50%) or more of the total combined voting power of all classes
of stock or other applicable equity rights in such corporation or other applicable entity.
1.4
“Annual Deferral Amount” shall mean that portion of a Participant’s Base Annual Salary and Bonus
that a Participant elects to have, and is, deferred in accordance with Article 3, for any one Plan Year. In the event of a Participant’s
Termination of Employment prior to the end of a Plan Year, such year’s Annual Deferral Amount shall be the actual amount
deferred prior to such event.
1.5
“Base Annual Salary” shall mean the annual cash compensation relating to services performed during any
calendar year, whether or not paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year,
excluding bonuses, commissions, overtime, fringe benefits, stock options or other equity-based compensation (including dividend
equivalent units or dividends on restricted stock) or payments in connection with the sale, exchange or disposition of equity awards
or equity-based awards, moving and relocation expenses, payments of accrued vacation or paid time off on termination of employment,
incentive payments, tax equalization payments or other amounts attributable to tax-equalization packages, non-monetary awards,
directors fees and other fees, automobile and other allowances paid to a Participant for employment services rendered (whether
or not such allowances are included in the Employee’s gross income). Base Annual Salary shall be calculated before reduction
for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or non-qualified plans of any
Employer or any Affiliate and shall be calculated to include amounts not otherwise included in the Participant’s gross income
under Sections 125, 132(f), 402(e)(3), 402(h), or 403(b) of the Code pursuant to plans established by any Employer or any Affiliate;
provided, however, that all such amounts will be included in compensation only to the extent that, had there been no such plan,
the amount would have been payable in cash to the Employee.
1.6
“Beneficiary” shall mean one or more persons, trusts, estates or other entities, designated in accordance
with Article 6, that are entitled to receive benefits under the Plan upon the death of a Participant. If a Participant fails to
designate a Beneficiary or if all designated Beneficiaries predecease the Participant or die prior to complete distribution of
the Participant’s benefits, then the Participant’s designated Beneficiary shall be deemed to be his or her surviving
spouse. If the Participant has no surviving spouse, the benefits remaining under the Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant’s estate.
1.7
“Beneficiary Designation Form” shall mean the form established from time to time by the Administrator
that a Participant completes and returns to the Administrator to designate one or more Beneficiaries.
1.8
“Board” shall mean the board of directors of the Company.
1.9
“Bonus” shall mean any compensation, in addition to Base Annual Salary, relating to services performed
during any fiscal year of the Company or calendar year, whichever is applicable for such bonus, whether or not paid in such year,
payable to a Participant as an Employee under any Employer’s bonus and cash incentive plans, excluding any award that constitutes
stock options or other equity-based compensation (including dividend equivalent units or dividends on restricted stock) or payments
in connection with the sale, exchange or disposition of equity awards or equity-based awards.
1.10
“Change in Control” shall mean any transaction that constitutes a change in the ownership or effective
control of the Company or in the ownership of a substantial portion of the assets of the Company within the meaning of Section
409A of the Code and applicable guidance issued thereunder. For purposes of applying the foregoing requirements, the default provisions
of Section 409A and applicable guidance shall apply; provided, however, that for purposes of determining (a) whether a change in
effective control of a corporation has occurred based on the acquisition of stock ownership, the percentage threshold that shall
be applied shall be “50 percent or more” (rather than “30 percent or more”), and (b) whether a change in
the ownership of a substantial portion of a corporation’s assets has occurred, based on an acquisition of threshold of assets
having a total gross fair market value equal to or more than 50 percent of the total gross fair market value of all of the assets
of the corporation (rather than 40 percent thereof).
1.11
“Change in Control Benefit” shall mean the benefit set forth in Section 4.3.
1.12
“Code” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.
1.13
“Committee” shall mean the Compensation Committee of the Board.
1.14
“Company” shall mean America’s Car-Mart, Inc., a Texas corporation.
1.15
“Deferral Account” shall mean (a) the sum of all of a Participant’s Annual Deferral Amounts, plus
(b) amounts credited in accordance with all the applicable crediting provisions of the Plan that relate to the Participant’s
Deferral Account, less (c) all distributions made to the Participant or his or her Beneficiary pursuant to the Plan that relate
to his or her Deferral Account.
1.16
“Distribution Date” has the meaning given to such term in Section 4.2.
1.17
“Effective Date” means September 17, 2014.
1.18
“Election Form” shall mean the form established from time to time by the Administrator that a Participant
completes and returns to the Administrator in accordance with rules established by the Administrator, and that is accepted by the
Administrator, to make a deferral election under the Plan.
1.19
“Employee” shall mean a person who is an employee of any Employer and who is paid on a U.S. payroll.
1.20
“Employer(s)” shall mean the Company and its Affiliates (now in existence or hereafter formed or acquired)
that have been selected by the Administrator to participate in the Plan and have adopted the Plan as an “Employer”.
1.21
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time
to time.
1.22
“Measurement Fund” shall mean the investment fund or funds selected by the Administrator from time to
time.
1.23
“Officer” shall mean a person who is an officer of the Company or an Affiliate and an Employee, as determined
by the Administrator in its sole discretion.
1.24
“Participant” shall mean (a) an Officer who is subject to United States income tax or (b) any Employee
designated to participate in the Plan by the Administrator and who is subject to United States income tax and who, in either case
(i) elects to participate in the Plan, (ii) completes an Election Form that is accepted by the Administrator, and (iii) commences
participation in the Plan. A spouse or former spouse of a Participant shall not be treated as a Participant in the Plan or have
an account balance under the Plan, even if he or she has an interest in the Participant’s benefits under the Plan as a result
of applicable law or property settlements resulting from legal separation or divorce or any other reason.
1.25
“Performance-Based Compensation” means any compensation that is considered performance-based compensation
for purposes of Section 409A of the Code.
1.26
“Plan” shall mean the America’s Car-Mart, Inc. Nonqualified Deferred Compensation Plan, which shall
be evidenced by this instrument, as amended from time to time.
1.27
“Plan Year” shall mean a period beginning on January 1 of each calendar year and continuing through December
31 of such calendar year.
1.28
“Specified Date” shall mean the date selected by the Participant on the Election Form as described in
Section 4.2.
1.29
“Termination of Employment” shall mean the severing of the Participant’s employment with the Company
and all Affiliates, voluntarily or involuntarily for any reason (including death or disability), as determined by the Administrator
which, in either case, constitutes a “separation from service” and “termination of employment” within the
meaning of Section 409A of the Code without application of any alternative levels of reductions of bona fide services permitted
thereunder.
1.30
“Unforeseeable Emergency” shall mean a severe financial hardship to the Participant resulting from (a)
illness or accident of the Participant or his or her dependent (as defined in Section 152 of the Code without regard to Section
152(b)(1), (b)(2) and (d)(1)(B) thereof), spouse or Beneficiary, (b) a loss of the Participant’s property due to casualty,
or (c) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the Administrator, and, in any event, which constitutes an “unforeseeable
emergency” within the meaning of Section 409A of the Code. For the avoidance of doubt, an Unforeseeable Emergency shall
not include, among other things, sending a child to college or purchasing a home.
ARTICLE
2.
PARTICIPATION
2.1
Eligibility for Participation. Participation in the Plan shall be limited to a select group of management and highly
compensated Employees, including Officers. Officers shall be automatically eligible to participate in the Plan subject to the terms
and conditions hereof. The Committee may select additional Employees from the select group of management and highly compensated
Employees to participate in the Plan.
2.2
Enrollment Requirements. As a condition to participation with respect to Annual Deferral Amounts, each Officer and
selected Employee shall complete, execute and return to the Administrator an Election Form which is accepted by the Administrator.
In addition, the Administrator shall establish from time to time such other enrollment requirements as it determines in its sole
discretion are necessary or appropriate.
2.3
Commencement of Participation. Provided an Officer or Employee selected to participate in the Plan has met all enrollment
requirements set forth in the Plan and required by the Administrator, including returning all required documents to the Administrator
within the specified time periods, that Employee or Officer shall commence participation in the Plan on the day on which his or
her Election Form first becomes effective in accordance with the terms of the Plan or, if applicable, the date on which a contribution
is first credited to his or her Deferral Account in accordance with the terms of the Plan.
ARTICLE
3.
DEFERRALs
AND ACCOUNTS
3.1
Election to Defer; Effect of Election Form. Subject to the terms and conditions set forth herein and such terms and
conditions as the Administrator may determine, eligible Participants may elect to defer Base Annual Salary and Bonus by timely
completing and delivering to the Administrator an Election Form that is accepted by the Administrator. Subject to the terms and
conditions herein, after a Plan Year commences, such deferral election shall be irrevocable and shall continue for the entire Plan
Year unless modified in accordance with the terms and conditions of the Plan and rules established by the Administrator. Notwithstanding
any other provision of the Plan, compensation eligible to be deferred under the Plan will only be deferred under a Participant’s
Election Form to the extent a Participant elects to defer compensation paid from the U.S. payroll of the Company or another Employer.
(a)
Base Annual Salary and Bonus. Subject to any terms and conditions imposed by the Administrator, an election with
respect to deferrals of Base Annual Salary and Bonus attributable to services performed in any Plan Year shall be effective only
if the Election Form is completed by the Participant, timely delivered to the Administrator no later than December 31 of the year
immediately preceding the Plan Year (or such earlier date determined and set by the Administrator in its sole discretion), and
accepted by the Administrator. With respect to an Officer or Employee who first becomes eligible to participate in the Plan on
or after the first day of a Plan Year (determined by the Administrator in accordance with Section 409A of the Code), the Administrator
may permit a deferral election to be made within thirty (30) days after the date on which the Officer or Employee becomes eligible
to participate in the Plan; provided, however, that any election made pursuant to this provision shall apply only with respect
to compensation paid for services to be performed after the date of the election (with the amount of such Bonus paid for services
after the date of the election determined in accordance with Treasury Regulation Section 1.409A-2(a)(7)(i)). An election form
pursuant to the preceding sentence shall be effective only if the Election Form is completed by the Participant, timely delivered
to the Administrator within the applicable thirty (30) day period (or such earlier date determined and set by the Administrator
in its sole discretion), and accepted by the Administrator. If no Election Form is timely delivered and accepted for a Plan Year
in accordance with this Section 3.1, the Annual Deferral Amount shall be zero for that Plan Year.
(b)
Performance-Based Compensation. Notwithstanding the foregoing provisions of Sections 3.1(a), the Administrator may
permit a deferral election with respect to Performance-Based Compensation to be made after the date specified in Section 3.1(a)
if the Election Form is completed by the Participant, timely delivered to the Administrator no later than the date that is six
(6) months prior to the last day of the applicable performance period (or such earlier date determined and set by the Administrator
in its sole discretion), and accepted by the Administrator. A deferral election shall be permitted under this Section 3.1(b) only
with respect to a Participant who has performed services continuously from the later of the beginning of the applicable performance
period or the date on which the performance criteria relating to the compensation were established through the date that the Election
Form is delivered to the Administrator. In no event will a deferral election be permitted under this Section 3.1(b) after the Performance-Based
Compensation has become readily ascertainable.
3.2
Maximum Deferrals. For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, up
to 100% of his or her Base Annual Salary and Bonus. The Administrator may impose a lower permitted Annual Deferral Amount or unilaterally
modify a Participant’s Election Form to ensure compliance with applicable tax rules and other required withholding requirements.
3.3
Accounts; Crediting of Deferrals. Solely for record keeping purposes and to the extent applicable, the Administrator
shall establish a Deferral Account for each Participant. A Participant’s Accounts shall be credited with the deferrals made
by him or her under this Article 3 and shall be credited (or charged, as the case may be) with the hypothetical or deemed investment
earnings and losses determined pursuant to Section 3.5, and charged with distributions made to or with respect to him or her pursuant
to the terms of the Plan. For each Plan Year, the Base Annual Salary portion of the Annual Deferral Amount, if any, shall be withheld
and credited to the Participant’s Deferral Account at the time of each regularly scheduled Base Annual Salary payroll but
for the deferral election in either the percentages or dollar amounts specified by the Participant in the Election Form, as adjusted
from time to time for increases and decreases in Base Annual Salary if applicable. The Bonus portion of the Annual Deferral Amount
shall be withheld and credited to the Participant’s Deferral Account at the time the Bonus is or otherwise would be paid
to the Participant but for the deferral election in the percentages specified by the Participant in the Election Form, whether
or not this occurs during the Plan Year itself.
3.4
Vesting. A Participant shall at all times be 100% vested in his or her Deferral Account.
3.5
Earnings Credits or Losses. In accordance with, and subject to, the rules and procedures that are established from
time to time by the Administrator, in its sole discretion, amounts shall be credited or debited to a Participant’s Account
Balance in accordance with the following rules:
(a)
Measurement Funds. The Administrator shall from time to time select types of Measurement Funds and specific Measurement
Funds for deemed investment designation by Participants for the purpose of crediting additional amounts to his or her Account Balance.
As necessary, the Administrator may, in its sole discretion, discontinue, substitute or add a Measurement Fund. The Administrator
shall notify the Participants of the types of Measurement Funds and the specific Measurement Funds selected from time to time.
(b)
Election of Measurement Funds. A Participant, in connection with his or her initial Election Form in accordance with
Section 3.1 above or otherwise in accordance with rules established by the Administrator, shall elect one or more Measurement Fund(s)
to be used to determine the additional amounts to be credited to his or her Account Balance, unless changed in accordance with
the terms of the Plan. In making any election in accordance with Section 3.1, the Participant shall specify on the Election Form,
in increments of whole percentage points (1%), the percentage of his or her Account Balance to be allocated to a Measurement Fund
(as if the Participant was making an investment in that Measurement Fund with that portion of his or her Account Balance). The
Participant may (but is not required to) elect, in accordance with rules established by the Administrator, to add or delete one
or more Measurement Fund(s) to be used to determine the additional amounts to be credited to his or her Account Balance, or to
change the portion of his or her Account Balance allocated to each previously or newly elected Measurement Fund. Any election of
a Measurement Fund shall become effective as soon as administratively practicable after the Participant’s election and shall
continue thereafter until changed in accordance with the previous sentence. Changes may be made to allocations at any time during
the Plan Year, up to a maximum number of changes per Plan Year, if any, established by the Administrator. If no election of a Measurement
Fund is made by a Participant, additional amounts will be credited to his or her Account Balance based on a default Measurement
Fund selected by the Administrator from time to time.
(c)
Crediting or Debiting Method. The performance of each elected Measurement Fund (either positive or negative) will
be determined by the Administrator, in its sole discretion, based on the performance of the Measurement Funds themselves. A Participant’s
Account Balance shall be credited or debited as frequently as is administratively feasible, but no less often than quarterly,
based on the performance of each Measurement Fund selected by the Participant, as determined by the Administrator in its sole
discretion.
(d)
No Actual Investment. Notwithstanding any other provision of the Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only, and a Participant’s election of any such Measurement Fund,
the allocation to his or her Account Balance thereto, the calculation of additional amounts and the crediting or debiting of such
amounts to a Participant’s Account Balance shall not be considered or construed in any manner as an actual investment of
his or her Account Balance in any such Measurement Fund. In the event that any Employer, in its own discretion, decides to invest
funds in any or all of the Measurement Funds, no Participant shall have any rights in or to such investments themselves. Without
limiting the foregoing, a Participant’s Account Balance shall at all times be a bookkeeping entry only and shall not represent
any investment made on his or her behalf by the Employer; the Participant shall at all times remain an unsecured creditor of the
Employers.
3.6
Distributions. Any distribution with respect to a Participant’s Account Balance shall be charged to the appropriate
Account as of the date such payment is made from the Account in accordance with the terms of the Plan.
ARTICLE
4.
DISTRIBUTIONS
4.1
Distribution of Benefits. A Participant shall receive distribution of his or her unpaid Account Balance in accordance
with the following:
4.2
Termination of Employment or Specified Date. Distribution of a Participant’s unpaid Account Balance shall be
distributed upon the earliest to occur of a Participant’s Termination of Employment, the death of the Participant or the
Specified Date selected by the Participant in the applicable Deferral Election (the earliest to occur of such three events referred
to as the “Distribution Date”). Unless the Participant has elected to receive installments for all or a portion of
his or her unpaid Account Balance for a Termination of Employment or a Specified Date, as applicable, the Participant’s unpaid
Account Balance shall be paid in a lump sum payment which shall be made no later than the later of (i) December 31 of the calendar
year during which the Participant’s Distribution Date occurs or (i) within sixty (60) days after the Participant’s
Distribution Date. In no event shall the Participant be permitted to elect the year of distribution for such lump sum payment.
A Participant may elect to have all or a portion of his Account Balance paid in annual installments over a period elected by the
Participant not exceeding [ten] years following a Distribution Event which is a Termination of Employment or a Specified Date,
subject to the following:
(a)
A Participant may elect, with respect to each Plan Year, for distribution of amounts deferred during such Plan Year (and
any earnings or losses credited with respect to such amounts pursuant to Section 3.5 of the Plan) to be made in installments rather
than a lump sum by selecting installments (and the number of years of such installments of up to ten years) in the applicable
Deferral Election that applies for such Plan Year.
(b)
If the Participant dies while receiving installments, the Participant’s remaining Account Balances will be paid in
a lump sum within sixty (60) days to the Participant’s Beneficiary.
(c)
The amount of each installment paid under this Section 4.2 will equal the result of dividing the applicable portion of the
Participant's Account Balances that the Participant elected to have distributed as installments (determined as of the most recent
Valuation Date occurring before the date on which such payment is made) by the number of installments remaining immediately before
the payment with respect to such portion of the Participant’s Account Balances.
(d)
If payments are to be made in the form of installment payments, the first installment shall be made at the same time that
the lump sum payment would otherwise be made as described above in Section 4.2 and the remaining annual payments will be made each
anniversary thereof until the number of installment payments specified in the Payment Schedule has been paid.
4.3
Change in Control Benefit. In the event of a Change in Control prior the Participant’s Distribution Date, a
Participant shall receive a lump sum Change in Control Benefit which shall be equal to the Participant’s unpaid Account Balance.
The lump sum payment shall be made no event later than the later of (i) December 31 of the calendar year during which the Change
in Control occurs or (ii) within sixty (60) days following the date of such Change in Control. In no event shall the Participant
be permitted to elect the year of distribution. In no event will a Participant (or Beneficiary) be entitled to a payment under
both Section 4.2 and Section 4.3.
4.4
Delayed Distributions for Specified Employee Participants. Notwithstanding any provision of the Plan to the contrary,
upon the Termination of Employment of a Participant who is a “specified employee” (determined in accordance with Section
409A of the Code) for any reason other than death, any distribution under the Plan that otherwise would be paid to Participant
on account of such Termination of Employment and during the period of time beginning with such Termination of Employment and ending
six (6) months thereafter shall not be paid during such six-month period but shall be delayed and instead paid in a lump sum on
the first day of the seventh calendar month following such Termination of Employment. There shall be no such six-month delay period
in the event of, and any six-month delay period which has already commenced shall terminate immediately upon, (a) the Participant’s
death or (b) a Change in Control.
ARTICLE
5.
UNFORESEEABLE
EMERGENCIES
If a Participant experiences an Unforeseeable
Emergency, the Participant may petition the Administrator to (a) suspend any deferrals required to be made by a Participant and/or
(b) receive a partial or full payout from the Plan. The payout on account of an Unforeseeable Emergency shall not exceed the lesser
of the Participant’s Account Balance or the amount reasonably needed to satisfy the Unforeseeable Emergency. The determination
of the amount reasonably needed to satisfy the Unforeseeable Emergency must take into account any additional compensation that
is available if the Participant is permitted to cancel his or her deferral election. In the discretion of the Administrator, the
amount reasonably needed to satisfy the Unforeseeable Emergency may include amounts necessary to pay any Federal, State, local
or foreign income taxes or penalties reasonably anticipated to result form the distribution. No suspension or payment shall be
made due to Unforeseeable Emergency to the extent that the emergency may be relieved through reimbursement or compensation from
insurance or otherwise, by liquidation of the Participant’s assets (to the extent that the liquidation of such assets would
not cause severe financial hardship), or by cessation of deferrals under the Plan. If, in the sole discretion of the Administrator,
the petition for a suspension and/or payout is approved, suspension shall take effect upon the date of approval and any payout
shall be made within sixty (60) days of the date of approval but in no event shall the Participant be permitted to elect the year
of the payment.
ARTICLE
6.
BENEFICIARY
DESIGNATIONs
6.1
Beneficiary. Each Participant shall have the right, at any time, to designate his or her Beneficiary(ies) (both primary
as well as contingent) to receive any benefits payable under the Plan to a beneficiary upon the death of a Participant. The Beneficiary
designated under the Plan may be the same as or different from the Beneficiary designation under any other plan of an Employer
in which the Participant participates.
6.2
Beneficiary Designation; Change. A Participant shall designate his or her Beneficiary by completing the Beneficiary
Designation Form and returning it to the Administrator. A Participant shall have the right to change a Beneficiary by completing
and otherwise complying with the terms of the Beneficiary Designation Form and the Administrator’s rules and procedures,
as in effect from time to time. No Beneficiary Designation Form shall be valid unless accepted by the Administrator. Upon the acceptance
by the Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be canceled. The
Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the Administrator
prior to the Participant’s death.
6.3
Doubt as to Beneficiary. If the Administrator has any doubt as to the proper Beneficiary to receive payments pursuant
to the Plan, the Administrator shall have the right, exercisable in its discretion, to cause the Participant’s Employer to
withhold such payments until this matter is resolved to the Administrator’s satisfaction.
6.4
Discharge of Obligations. The payment of benefits under the Plan to a Beneficiary shall fully and completely discharge
all Employers and the Administrator from all further obligations under the Plan with respect to the Participant, and that Participant’s
Election Form shall terminate upon such full payment of benefits.
ARTICLE
7.
TERMINATION,
AMENDMENT OR MODIFICATION
7.1
Termination With Respect to Account Balances. The Plan shall not terminate with respect to Account Balances and any
Employers, except in a manner that complies with Section 409A of the Code and applicable guidance issued thereunder. Upon a termination
of the Plan with respect to Account Balances that complies with Section 409A of the Code, each Participant shall be entitled to
receive his or her Account Balance in a lump sum payment in accordance with the payment schedule determined by the Administrator
upon termination in accordance with Section 409A of the Code. During the period of time between the date the Plan is terminated
with respect to Account Balances and the date of such payment, Account Balance distributions which otherwise would be made pursuant
to the Plan shall be made without regard to such termination.
7.2
Amendment. The Company may, at any time, amend or modify the Plan in whole or in part by the action of the Board,
the Committee or persons or person authorized by the Board or the Committee; provided, however, that no amendment or modification
shall be effective to decrease or restrict the value of a Participant’s Account Balance in existence at the time the amendment
or modification is made, calculated as if the Participant had experienced a Termination of Employment as of the effective date
of the amendment or modification.
7.3
Effect of Payment. The full payment of the applicable benefit under Article 4, 5 or 6 of the Plan shall completely
discharge all obligations to a Participant and his or her designated Beneficiaries under the Plan and the Participant’s rights
under the Plan shall terminate.
ARTICLE
8.
ADMINISTRATION
8.1
Administrator Duties. The Committee shall be the Administrator and shall conduct the general administration of the
Plan in accordance with the Plan and shall have all the necessary power and authority to carry out that function. Among the Administrator’s
necessary powers and duties (in addition to those set forth elsewhere in the Plan) are the following:
(a)
Except to the extent provided otherwise by the terms of the Plan, to delegate all or part of its function as Administrator
to others and to revoke any such delegation.
(b)
To conclusively determine all questions arising under the Plan, including the power to determine the eligibility of Participants
(as otherwise set forth herein) and the rights of Participants and other persons entitled to benefits under the Plan and their
respective benefits except as otherwise set forth in the Plan, and to remedy any ambiguities, inconsistencies or omissions of
whatever kind; to determine the amounts and time of payment of benefits, to take any actions necessary to assure timely payment
of benefits under the Plan.
(c)
To select and engage attorneys, accountants, actuaries, trustees, appraisers, brokers, consultants, administrators, physicians
or other persons to render service or advice with regard to any responsibility the Administrator has under the Plan, or otherwise,
to designate such persons to carry out fiduciary responsibilities (other than trustee responsibilities) under the Plan, and (with
the Committee, the Employers and their officers, directors, trustees and Employees) to rely upon the advice, opinions or valuations
of any such persons, to the extent permitted by law, being fully protected in acting or relying thereon in good faith.
(d)
To conclusively interpret the Plan for purpose of the administration and application of the Plan, in a manner not inconsistent
with the Plan or applicable law and to amend or revoke any such interpretation.
(e)
To establish a claims procedure.
(f)
To generally operate and administer the Plan in all matters except as otherwise provided herein.
8.2
Binding Effect of Decisions. The decision or action of the Administrator with respect to any question arising out
of or in connection with the administration, interpretation and application of the Plan, Section 409A of the Code and applicable
guidance issued thereunder shall be final and conclusive and binding upon all persons having any interest in the Plan. No benefits
shall be paid to any person unless the Administrator determines that such person is entitled thereto under the terms of the Plan.
8.3
Indemnification. All Employers shall indemnify and hold harmless any of their officers, directors, Administrator
or Committee members or Employees who are involved in the administration of the Plan against any and all claims, losses, damages,
expenses or liabilities arising out of the good faith performance of their administrative functions.
8.4
Employer Information. To enable the Administrator to perform its functions, each Employer shall supply full and timely
information to the Administrator on all matters relating to the compensation of its Participants, the date and circumstances of
the Termination of Employment of its Participants (including death), and such other pertinent information as the Administrator
may reasonably require.
ARTICLE
9.
MISCELLANEOUS
9.1
Status of Plan. The Plan as applied to employees is intended to be a plan that is not qualified within the meaning
of Section 401(a) of the Code and that is “unfunded and is maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated employees” within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA. The Plan shall be administered and interpreted to the extent possible in a manner consistent
with that intent.
9.2
Unsecured General Creditor. Participants and their Beneficiaries, heirs, successors and assigns shall have no legal
or equitable rights, interests or claims in any property or assets of any Employer. For purposes of the payment of benefits under
the Plan, any and all of an Employer’s assets shall be, and remain, the general, unpledged unrestricted assets of the Employer.
An Employer’s obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future.
9.3
Source of Benefits. The amount of any benefit payable under the Plan will be paid from the general revenues of the
Employer with respect to whose former employee the benefit is payable. Subject to the foregoing, if a Participant has been employed
by more than one Employer, the portion of the Plan benefit payable by each such Employer shall be equal to the portion of the Participant’s
Account Balance which is attributable to the reduction of his or her compensation from that Employer which is made pursuant to
his or her Election Form or which is otherwise attributable to the contributions by that Employer. An Employer’s obligation
under the Plan shall be reduced to the extent that any amounts due under the Plan are paid from one or more trusts, the assets
of which are subject to the claims of the general creditors of the Employer or any affiliate thereof, or from an insurance policy
owned by the Employer; provided, however, that nothing in the Plan shall require the Company or any Employer to establish any trust
to provide benefits under the Plan or to purchase an insurance policy. No employee or other individual entitled to benefits under
the Plan shall have any right, title or interest whatsoever in any assets of the Company, any of the other Employers or any Affiliate
or to any investment reserves, accounts or funds that the Company or any other Employer may purchase, establish or accumulate to
aid in providing the benefits under the Plan, including any investment in any Measurement Fund.
9.4
Employer’s Liability. An Employer’s liability for the payment of benefits shall be defined only by the
Plan and the Election Form(s), as entered into between the Employer and a Participant. An Employer shall have no obligation to
a Participant under the Plan except as expressly provided in the Plan and his or her Election Form(s).
9.5
Nonassignability. Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer,
pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate, alienate or convey in advance of actual receipt, the
amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are expressly declared to be, unassignable
and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure, attachment, garnishment
or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person,
be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.
Notwithstanding the foregoing, the Administrator is authorized to make any payments directed by court order in any action in which
the Plan or the Administrator has been named as a party. In addition, if a court determines that a spouse or former spouse of
a Participant has an interest in the Participant’s benefits under the Plan in connection with a property settlement or otherwise,
the Administrator, in its sole discretion, shall have the right, notwithstanding any election made by a Participant, to immediately
distribute the spouse’s or former spouse’s interest in the Participant’s benefits under the Plan to that spouse
or former spouse.
9.6
Tax Withholding. Each Employer may withhold or cause to be withheld from any amounts otherwise due to the Participant
or subject to a deferral election under the Plan or any payment of benefits made pursuant to the Plan any taxes required to be
withheld and such sum as the Employer may reasonably estimate to be necessary to cover any taxes for which the Employer may be
liable and which may be assessed with regard to such deferrals or payments under the Plan. Notwithstanding the foregoing, withholding
of amounts otherwise subject to a deferral election (or otherwise deferred under the Plan) shall be limited to (a) the amount required
to pay the tax imposed by the Federal Insurance Contributions Act (“FICA”) under Sections 3101, 3121(a) and
3121(v) of the Code on compensation deferred under the Plan (the “FICA Amount”), and (b) income tax imposed
under Section 3401 of the Code or the corresponding withholding provisions of applicable state, local or foreign tax laws as a
result of the payment of the FICA Amount and to pay the additional income tax attributable to the pyramiding of wages under Section
3401 and taxes. Notwithstanding the foregoing, the total amount of withholding pursuant to the preceding sentence shall not exceed
the aggregate FICA Amount and the income tax withholding related to such FICA Amount.
9.7
Coordination with Other Benefits. The benefits provided for a Participant and Participant’s Beneficiary under
the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the
Participant’s Employer. The Plan shall supplement and shall not supersede, modify or amend any other such plan or program
except as may otherwise be expressly provided.
9.8
Compliance. A Participant shall have no right to receive payment with respect to the Participant’s Account
Balance until all legal and contractual obligations of the Employers relating to establishment of the Plan and the making of such
payments shall have been complied with in full. In addition, the Company shall impose such restrictions on Stock delivered to a
Participant hereunder and any other interest constituting a security as it may deem advisable in order to comply with the Securities
Act, the requirements of the NASDAQ or any other stock exchange or automated quotation system upon which the Stock is then listed
or quoted, any state securities laws applicable to such a transfer, any provision of the Company’s Articles of Incorporation
or Bylaws, or any other applicable law or applicable regulation.
9.9
Not a Contract of Employment. The terms and conditions of the Plan shall not be deemed to constitute a contract of
employment between any Employer and the Participant. Such employment is hereby acknowledged to be an “at will” employment
relationship that can be terminated at any time for any reason, or no reason, with or without cause, and with or without notice,
unless expressly provided in a written employment agreement. Nothing in the Plan shall be deemed to give a Participant the right
to be retained in the service of any Employer or to interfere with the right of any Employer to discipline or discharge the Participant
at any time.
9.10
Furnishing Information. A Participant or his or her Beneficiary will cooperate with the Administrator by furnishing
any and all information requested by the Administrator and take such other actions as may be requested in order to facilitate
the administration of the Plan and the payments of benefits hereunder, including but not limited to taking such physical examinations
as the Administrator may deem necessary.
9.11
Governing Law. Subject to ERISA, the provisions of the Plan shall be construed and interpreted according to the internal
laws of the State of [Arkansas] without regard to its conflicts of laws principles.
9.12
Notice. Any notice or filing required or permitted to be given to the Administrator under the Plan shall be sufficient
if in writing and hand-delivered, or sent by registered or certified mail, to the Company at its principal corporate offices, to
the attention of the Company’s General Counsel. Such notice shall be deemed given as of the date of delivery or, if delivery
is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Any notice or filing required
or permitted to be given to a Participant under the Plan shall be sufficient if in writing and hand-delivered, or sent by mail,
to the last known address of the Participant.
9.13
Successors. The provisions of the Plan shall bind and inure to the benefit of the Participant’s Employer and
its successors and assigns and the Participant and the Participant’s designated Beneficiaries.
9.14
Validity. In case any provision of the Plan shall be illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts hereof, but the Plan shall be construed and enforced as if such illegal or invalid provision
had never been inserted herein.
9.15
Incompetent. If the Administrator determines in its discretion that a benefit under the Plan is to be paid to a minor,
a person declared incompetent or to a person incapable of handling the disposition of that person’s property, the Administrator
may direct payment of such benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent
or incapable person. The Administrator may require proof of minority, incompetence, incapacity or guardianship, as it may deem
appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Participant
and the Participant’s Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan
for such payment amount.
9.16
Action by Employers. Any action required or permitted to be taken under the Plan by any Employer shall be taken by
appropriate action of its applicable governing body (such as its board of directors, general partner, board of trustees, management
committee) or an authorized committee thereof, or by a person or persons authorized by the governing body or committee, as applicable.
9.17
Supplements. The provisions of the Plan as applied to any Employer or to any group of employees of any Employer
may, with the consent of Administrator, be modified or supplemented from time to time by the adoption of one or more Supplements.
Each Supplement shall form a part of the Plan as of the Supplement’s effective date. In the event of any inconsistency between
a Supplement and the Plan document, the terms of the Supplement shall govern.
IN WITNESS WHEREOF, the Company has signed
the Plan document as of September 17, 2014.
America’s Car-Mart, Inc.
a Texas corporation
By:__/s/ Jeffrey A. Williams
Jeffrey A. Williams
Title: Chief Financial Officer, Vice President
16
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