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): June 22, 2015
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:
| o | | Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
| o | | Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | | Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | | Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) On June 22, 2015, America’s
Car-Mart, Inc., a Texas corporation (the “Company”), entered into new employment agreements with its Chief Executive
Officer, William H. Henderson, and its Chief Financial Officer, Jeffrey A. Williams, to be effective as of May 1, 2015. The employment
agreements were approved by the Company’s compensation committee and the board of directors. The following summary of the
material terms of the employment agreements is qualified in its entirety by reference to the full text of the agreements, which
are attached to this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference.
Each of the new employment
agreements contains an agreement not to compete, which covers the term of employment and one year thereafter, a covenant against
the solicitation of employees and customers, which covers the term of employment and one year thereafter, a provision against the
use and disclosure of trade secrets, which covers the term of employment and an indefinite period thereafter, and a provision against
the use and disclosure of confidential information, which covers the term of employment and two years thereafter.
William H. Henderson.
Pursuant to his new employment agreement, Mr. Henderson agreed to serve as a senior executive officer of the Company’s operating
subsidiary for a term beginning May 1, 2015 and ending on April 30, 2020. Mr. Henderson is entitled to a base annual salary of
$466,400, or such higher annual salary approved by the board of directors. Mr. Henderson has the right to participate in any operating
subsidiary 401(k) profit sharing plan, as well as the medical and life insurance programs offered by the Company’s operating
subsidiary and the nonqualified deferred compensation plan adopted by the Company in September 2014.
In addition, Mr. Henderson
will be entitled to earn an annual incentive bonus during the term beginning May 1, 2015 and ending April 30, 2020. Such incentive
bonus will be based upon the Company’s attainment of projected fully diluted GAAP earnings per share for each fiscal year.
Mr. Henderson’s targeted bonus potential is $60,000, $70,000, $80,000, $90,000 and $100,000 for fiscal years 2016, 2017,
2018, 2019 and 2020, respectively. If the Company’s actual fully diluted GAAP earnings per share equals 95-99% of the projected
fully diluted GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year
multiplied by 0.67. If the Company’s actual fully diluted GAAP earnings per share equals 100-104% of the projected fully
diluted GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year multiplied
by 1.0. If the Company’s actual fully diluted GAAP earnings per share equals 105% or more of the projected fully diluted
GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year multiplied by
1.33.
Pursuant to the employment
agreement, Mr. Henderson will be granted non-qualified stock options to purchase an aggregate of 30,000 shares of the Company’s
common stock pursuant to the Company’s Amended and Restated Stock Option Plan (the “Restated Option Plan”), which
was adopted by the board of directors on June 10, 2015, subject to stockholder approval at the Company’s 2015 annual meeting.
The stock option grants are contingent upon stockholder approval of the Restated Option Plan. Mr. Henderson will receive an option
for 10,000 shares that will be subject to time-based vesting and will “cliff” vest on April 30, 2020. He will also
receive an option for 20,000 shares that will be subject to performance vesting based on the Company’s consolidated net income
growth during fiscal years 2016 through 2020. For the performance-based option, if the Company’s cumulative consolidated
net income growth, calculated on a compound basis, for the five fiscal years ending April 30, 2020 is equal to 10% or more, the
option will vest in full (20,000 shares) on April 30, 2020. If the Company’s cumulative consolidated net income growth, calculated
on a compound basis, for the five fiscal years ending April 30, 2020 is equal to 5% or more but less than 10%, one half of the
option (10,000 shares) will vest on April 30, 2020. If the Company’s cumulative consolidated net income growth, calculated
on a compound basis, for the five fiscal years ending April 30, 2020 is less than 5%, the option will be forfeited.
Pursuant to the terms of his new employment agreement, if the Company terminates Mr. Henderson without cause
(as defined in the employment agreement) or due to disability, Mr. Henderson’s base salary will continue to be payable through
the term of the employment agreement, Mr. Henderson will be paid, within 60 days after termination, the pro rata portion of any
bonus earned through the date of termination, and all unvested restricted stock and stock options will immediately vest in full
without regard to the achievement of any applicable performance goals; provided, however, that any shares of restricted stock that
are intended to constitute performance-based compensation within the meaning of Section 162(m) of the Code will become vested only
to the extent provided under the applicable restricted stock agreement.
Jeffrey A. Williams.
Pursuant to his new employment agreement, Mr. Williams agreed to serve as a senior executive officer of the Company’s operating
subsidiary for a term beginning on May 1, 2015 and ending on April 30, 2020. Mr. Williams is entitled to an annual salary of $367,290,
or such higher annual salary approved by the board of directors. Mr. Williams has the right to participate in any operating subsidiary
401(k) profit sharing plan, as well as the medical and life insurance programs offered by the Company’s operating subsidiary
and the nonqualified deferred compensation plan adopted by the Company in September 2014.
In addition, Mr. Williams
will be entitled to earn an annual incentive bonus during the term beginning May 1, 2015 and ending April 30, 2020. Such incentive
bonus will be based upon the Company’s attainment of projected fully diluted GAAP earnings per share for each fiscal year.
Mr. Williams’ targeted bonus potential is $40,000, $50,000, $60,000, $70,000 and $80,000 for fiscal years 2016, 2017, 2018,
2019 and 2020, respectively. If the Company’s actual fully diluted GAAP earnings per share equals 95-99% of the projected
fully diluted GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year
multiplied by 0.67. If the Company’s actual fully diluted GAAP earnings per share equals 100-104% of the projected fully
diluted GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year multiplied
by 1.0. If the Company’s actual fully diluted GAAP earnings per share equals 105% or more of the projected fully diluted
GAAP earnings per share, the bonus for each fiscal year will be the targeted bonus potential amount for such year multiplied by
1.33.
Pursuant to the employment
agreement, Mr. Williams will be granted non-qualified stock options to purchase an aggregate of 30,000 shares of the Company’s
common stock pursuant to the Restated Option Plan, subject to stockholder approval of the Restated Option Plan at the annual meeting.
Mr. Williams will receive an option for 10,000 shares that will be subject to time-based vesting and will “cliff” vest
on April 30, 2020. He will also receive an option for 20,000 shares that will be subject to performance vesting based on the Company’s
consolidated net income growth during fiscal years 2016 through 2020. For the performance-based option, if the Company’s
cumulative consolidated net income growth, calculated on a compound basis, for the five fiscal years ending April 30, 2020 is equal
to 10% or more, the option will vest in full (20,000 shares) on April 30, 2020. If the Company’s cumulative consolidated
net income growth, calculated on a compound basis, for the five fiscal years ending April 30, 2020 is equal to 5% or more but less
than 10%, one half of the option (10,000 shares) will vest on April 30, 2020. If the Company’s cumulative consolidated net
income growth, calculated on a compound basis, for the five fiscal years ending April 30, 2020 is less than 5%, the option will
be forfeited.
Pursuant to the terms of his new employment agreement, if the Company terminates Mr. Williams without cause
or due to disability, Mr. Williams’ base salary will continue to be payable through the term of the employment agreement,
Mr. Williams will be paid, within 60 days after termination, the pro rata portion of any bonus earned through the date of termination,
and all unvested restricted stock and stock options will immediately vest in full without regard to the achievement of any applicable
performance goals; provided, however, that any shares of restricted stock that are intended to constitute performance-based compensation
within the meaning of Section 162(m) of the Code will become vested only to the extent provided under the applicable restricted
stock agreement.
Change in Control
Provisions. The employment agreements contain change in control provisions entitling the executive officers, upon the occurrence
of certain events, to a multiple of their then current base salary and the immediate vesting of stock options and restricted stock.
Payments to an executive under these change in control provisions are triggered upon an involuntary termination of the executive’s
employment, or a voluntary termination of employment by the executive for good reason (as defined in the employment agreement),
in connection with a change in control of the Company. Under the terms of the employment agreements, a “change in control”
generally means the following:
| · | the acquisition by an individual, entity
or group (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) of ownership
of our stock that, together with stock held by such person, constitutes more than 50% of the total fair market value or total voting
power of our stock; |
| · | the acquisition by an individual, entity
or group (within the meaning of Section 409A of the Code) during the twelve-month period ending on the date of the most recent
acquisition by such person of ownership of our stock possessing 35% or more of the total voting power of our stock; |
| · | the replacement of a majority of the members
of our board of directors during any twelve-month period by directors whose appointment or election is not endorsed by a majority
of the members of our board of directors prior to the date of the appointment or election; or |
| · | the acquisition by an individual, entity
or group (within the meaning of Section 409A of the Code) during the twelve-month period ending on the date of the most recent
acquisition by such person of our assets that have a total gross fair market value equal to or more than 40% of the total gross
fair market value of all of our assets immediately prior to such acquisition. |
If a double trigger event (as defined in the agreement) occurs in connection with a change in control of the
Company, we must pay the named executive officer a lump sum cash payment equal to 2.99 times the executive’s then current
base salary on the 60-day anniversary of such double trigger event and all unvested restricted stock and stock options previously
granted vest in full, without regard to the achievement of any applicable performance goals, unless otherwise prohibited by the
applicable equity compensation plans or award agreements. Such payments are referred to in this report as change in control payments.
A “double trigger event” occurs if, within the period beginning six months before a change in control of the Company
and ending two years after such change in control, the executive’s employment is involuntarily terminated by our operating
subsidiary or the Company (or the surviving or acquiring entity, as the case may be), other than for cause, or the executive terminates
his employment for good reason. A termination for “cause” generally consists of a breach, gross negligence or wrongdoing
by the executive officer. For purposes of the change in control provisions, “good reason” generally means the executive’s
resignation within 30 days after the occurrence of any of the following events:
| · | a significant reduction of the executive’s
duties, authority, responsibilities, or reporting relationships or the assignment to him of such reduced duties, authority, responsibilities,
or reporting relationships, without his written consent; provided, however, that the change in control is not, in and of itself,
a material adverse change in the executive’s duties, authority, responsibilities or reporting relationships; |
| · | a material reduction in the executive’s
base salary, bonus structure or benefits, with the result that the executive’s overall benefits package is significantly
reduced; or |
| · | the relocation of the executive’s
principal work location to a facility or a location more than 50 miles from his then present principal work location, without his
written consent. |
In addition if, prior to the change in control,
the Company terminates the executive officer without cause and the termination is related to the change in control, then, for purposes
of his change in control payments, such executive officer will be treated as being employed on the date the change in control becomes
effective. In such case, the executive officer will receive the change in control payment in addition to any other compensation
to which the executive is entitled under his employment agreement as a result of his termination.
Under the terms
of the employment agreements, in the event the change in control payments and any other payments to which the executive officer
may be entitled in connection with the change in control of the Company exceed in the aggregate 2.99 times “base amount”
(as defined by Section 280G of the Code) with respect to his compensation, which would result in excise taxes being owed by the
executive under Code Section 4999 and the loss of a tax deduction by the Company under Code Section 280G for the excess payment
above the base amount, the Company and the executive agree to retain an independent accounting firm to evaluate whether the executive
would be better off by receiving the full change in control payments and paying the excise tax or by the Company reducing the aggregate
payment amount so that it would not be subject to excise taxes under Section 4999 of the Code. Based on the accountant’s
finding that the executive would be better off receiving the full payment amount and paying the required excise taxes, no change
will be made in the change in control payments and the Company will forego its deduction for the amount of such payments above
the base amount. Based on the accountant’s finding that the executive would be better off receiving the reduced change in
control payments and not being subject to excise tax, the change in control payments will be reduced to an aggregate amount that
does not exceed 2.99 times the base amount and the Company will retain its eligibility to deduct the amount actually paid.
Specified Employee
Delay Provision. If the executive officer is a “specified employee” within the meaning of Section 409A of the Code,
any benefits or payments that constitute a “deferral of compensation” under the Section 409A of the Code, become payable
as a result of the executive officer’s termination for reasons other than death, and become due under the employment agreement
during the first six months after termination of employment, will be delayed and all such delayed payments will be paid to such
named executive officers in full in the seventh month after the date of termination and all subsequent payments will be paid in
accordance with their original payment schedule.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
| Exhibit No. |
Description of Exhibit |
| |
|
| 10.1 |
Employment Agreement, dated as of May 1, 2015, between America’s Car Mart, Inc., an Arkansas corporation, and William H. Henderson. (This agreement has been redacted pursuant to a confidential treatment request filed with the Securities and Exchange Commission on the date hereof.) |
| |
|
| 10.2 |
Employment Agreement, dated as of May 1, 2015, between America’s Car Mart, Inc., an Arkansas corporation, and Jeffrey A. Williams. (This agreement has been redacted pursuant to a confidential treatment request filed with the Securities and Exchange Commission on the date hereof.) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
|
AMERICA’S CAR-MART, INC.
|
| Date: June 23, 2015 |
|
/s/ Jeffrey A. Williams |
| |
|
Jeffrey A. Williams |
| |
|
Chief Financial Officer and Secretary |
| |
|
(Principal Financial and Accounting Officer) |
EXHIBIT INDEX
| Exhibit No. |
Description
of Exhibit |
| |
|
| 10.1 |
Employment Agreement, dated as of May 1, 2015, between America’s Car Mart, Inc., an Arkansas corporation, and William H. Henderson. (This agreement has been redacted pursuant to a confidential treatment request filed with the Securities and Exchange Commission on the date hereof.) |
| |
|
| 10.2 |
Employment Agreement, dated as of May 1, 2015, between America’s Car Mart, Inc., an Arkansas corporation, and Jeffrey A. Williams. (This agreement has been redacted pursuant to a confidential treatment request filed with the Securities and Exchange Commission on the date hereof.) |
Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement
(the “Agreement”) is made effective as of May 1, 2015 between AMERICA’S CAR MART, INC., an Arkansas corporation
(the “Company”) and WILLIAM H. HENDERSON (the “Associate”).
W I T N E
S S E T H:
WHEREAS, the Company is
engaged in the business of the sale and financing of used vehicles (“Company Business”); and
WHEREAS,
the Associate is a Senior Executive Officer of the Company, and the Company desires to continue the employment of the Associate,
and the Associate desires to provide his services to the Company upon the terms and conditions hereinafter set forth;
WHEREAS,
the Company periodically sells its finance receivables to Colonial Auto Finance, Inc., an Arkansas corporation (“Colonial”)
and services those loans on Colonial’s behalf (collectively, the Company and Colonial are referred to herein as “Car-Mart”);
and
WHEREAS,
America’s Car-Mart, Inc., a Texas corporation (the “Parent Company”), owns 100% of the outstanding common
stock of the Company;
WHEREAS, in order to conduct
its business, the Company owns and uses trade secrets as defined under applicable law, as well as confidential and propriety information;
and
WHEREAS, the Associate,
during the term of his employment with the Company and in order to carry out his duties with the Company, has or will have contact
with the Company’s customers and employees and has or will have access to and has or will become privy to or acquainted with
certain confidential information and trade secrets, which are owned by the Company and which are regularly used in the business
of the Company and which are generally not known to its competitors;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties hereto, each intending to
be legally bound hereby, agree as follows:
1. Employment.
The Company hereby continues the employment of the Associate as a Senior Executive Officer of the Company, and the Associate accepts
such employment. During the term of employment under this Agreement (the “Employment Term”), the Associate shall perform
such duties as shall reasonably be required of a Senior Executive Officer of the Company. The Associate further agrees to perform,
without additional compensation, such other work for the Company and for any subsidiary or affiliate of the Company in which the
Company has an interest, including, without limitation, Colonial and the Parent Company, as the Board of Directors of the Company
or the Parent Company shall from time to time reasonably specify. It is expressly agreed and understood between the Company and
the Associate that the term of this Agreement is in no way dependent upon the Associate’s holding or being elected to any
office of the Company. The Associate may be deemed an employee of, and paid by the Company, Colonial, or the Parent Company, as
reasonably determined by the Company.
*Filed under an application for confidential treatment.
2. Performance.
The Associate agrees to devote his entire business efforts to the performance of his duties hereunder, provided, however, that
the Associate may engage in personal investment activities not involving the Company so long as they do not interfere with the
performance of his duties hereunder.
3. Term. Unless
otherwise terminated in accordance with Sections 8, 9, 10 or 11, the Employment Term shall be for a term ending April 30, 2020.
This Agreement shall be automatically renewed for successive additional Employment Terms of one (1) year each unless notice of
termination is given in writing by either party to the other party at least thirty (30) days prior to the expiration of the initial
Employment Term or any renewal Employment Term.
(a) Base Salary
and Benefits. The basic annual salary of the Associate for his employment services hereunder shall be $466,400 or such higher annual
salary, if any, as shall be approved by the Board of Directors of the Parent Company from time to time (the “Base Salary”),
which shall be payable in accordance with the Company’s payroll policy. Nothing contained herein shall affect or in any way
limit the Associate’s rights as an Associate of the Company to participate in any Company 401(k) profit sharing plan or medical
and life insurance programs offered by the Company to its employees, all of which shall be available to the Associate to the same
extent as if this Agreement had not existed, and compensation received by the Associate hereunder shall be in addition to the foregoing.
In addition, nothing contained herein shall affect or in any way limit the Associate’s eligibility to participate in any
nonqualified deferred compensation plan of the Company or the Parent.
(b) Bonus.
In addition to the Base Salary and fringe benefits described above, the Associate shall be eligible to earn an annual cash bonus
(the “Bonus”) during the term hereof beginning May 1, 2015 and ending April 30, 2020. The Bonus shall be based upon
Parent Company’s projected fully diluted earnings per share calculated in accordance with GAAP for each fiscal year (“GAAP
Earnings Per Share”). The Bonus will depend on the Parent Company attaining a minimum of 95% of its projected GAAP Earnings
Per Share, as set forth in Appendix A to this Agreement. The Bonus, if any, shall be paid each fiscal year, within fifteen
(15) days following the Parent Company’s filing of its annual report on Form 10-K for such fiscal year (but no later than
two and one-half (2½) months following the calendar year in which the Bonus was earned), based upon the Parent Company’s
GAAP Earnings Per Share for that fiscal year. Any Bonus shall be deemed to be earned by the Associate if the Associate was an employee
of the Company as of the last day of the fiscal year in question.
(c) Non-Qualified
Stock Options.
(i) Subject
to Section 4(c)(iii) herein, the Parent Company will grant to the Associate, pursuant to the Parent Company’s Amended and
Restated Stock Option Plan (the “Option Plan”), non-qualified stock options to purchase an aggregate of 30,000 shares
of Parent Company Stock, as follows:
(A) A non-qualified
stock option to purchase 10,000 shares of Parent Company Stock, which will vest in full (or “cliff” vest) on April
30, 2020, subject to the Associate’s continuous service (as that term is defined in the Option Plan) as of the vesting date;
and
(B) A non-qualified
stock option to purchase 20,000 shares of Parent Company Stock, with vesting of such option subject to the attainment of certain
performance conditions based on the Parent Company’s consolidated net income growth during fiscal years 2016 through 2020.
If the Parent Company’s cumulative consolidated net income growth, calculated on a compound basis, for the five (5) fiscal
years ending April 30, 2020 is equal to 10% or more, the stock option will “cliff” vest in its entirety (20,000 shares)
on the date which marks the fifth (5th) anniversary of the stock option grant date (the “Vesting Date”).
If the Parent Company’s cumulative consolidated net income growth, calculated on a compound basis, for the five (5) fiscal
years ending April 30, 2020 is equal to 5% or more but less than 10%, the stock option will “cliff” vest as to 10,000
shares on the Vesting Date. If the Company’s cumulative consolidated net income growth, calculated on a compound basis, for
the five (5) fiscal years ending April 30, 2020 is less than 5%, the stock option will be forfeited.
(ii) For purposes
of this Section 4(c), “consolidated net income” for a given fiscal year shall mean “Net income” as reported
in the Company’s consolidated statement of operations included in the Company’s Annual Report on Form 10-K for such
fiscal year as filed with the Securities and Exchange Commission, except that if on the Vesting Date the Company has not yet filed
its Annual Report on Form 10-K for the fiscal year ending April 30, 2020, “consolidated net income” for fiscal year
2020 shall be the Company’s “Net income” as reported in the Company’s public earnings press release for
such fiscal year. All terms used in this Section 4(c) shall have the definitions set forth in this Agreement, the Option Plan or
the applicable Stock Option Agreement, as the case may be.
(iii) The stock
option grants under this Section 4(c) shall be made on August 5, 2015, the date of the Parent Company’s annual meeting of
shareholders, subject to and contingent upon the approval by such shareholders of the Option Plan.
5. Expense Account
and Vacations. Matters relating to expense accounts for the Associate, vacations and the like shall be mutually agreed upon
from time to time. However, the Company agrees to reimburse the Associate for all expenses reasonably incurred by him on behalf
of the Company in accordance with the prevailing practices and policies of the Company. In addition, the Associate shall be entitled
to that number of days of paid vacation and paid sick leave as is consistent with the prevailing practices and policies of the
Company for other employees in the same or similar position as that held by the Associate hereunder.
6. Non-Competition,
Non-Solicitation, Non-Disclosure, and Confidentiality Provisions
(a) Non-Solicitation:
Customers. During Associate’s employment and for one (1) year immediately following the cessation of Associate’s employment
with the Company for any reason, Associate shall not, on his own behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise (except the Company), solicit, call upon, or attempt to solicit or call
upon, any customer of the Company, or any representative of any customer of the Company with a view to selling or providing any
product or service competitive with any product or service sold or provided by the Company in the Company Business, as defined
herein, during the twelve (12) month period immediately preceding cessation of Associate’s employment with the Company, provided
that the restrictions set forth in this section shall apply only to customers of the Company, or representatives of customers of
the Company with whom Associate had material contact during such twelve (12) month period. “Material contact” exists
between Associate and each of the Company’s existing customers: (i) with whom Associate actually dealt for a business purpose
while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose business
dealings with the Company were handled, coordinated or supervised by Associate or performed by Associate in whole or in part.
(b) Non-Solicitation:
Employees. During Associate’s employment and for one (1) year immediately following the cessation of Associate’s employment
with the Company for any reason, Associate will not solicit or in any manner encourage employees of the Company to leave the employ
of the Company. The foregoing prohibition applies only to employees with whom Associate had material contact pursuant to Associate’s
duties during the twelve (12) month period immediately preceding cessation of Associate’s employment with the Company. “Material
contact” means interaction between Associate and another employee of the Company: (i) with whom Associate actually dealt
or worked with; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or
supervised by Associate.
(c) Non-Disclosure.
(i) TRADE SECRETS.
Associate acknowledges that the Company owns and uses trade secrets as defined under applicable law. “Trade secret(s)”
means information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern,
a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans,
or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
(a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy. Associate further acknowledges that in the course of Associate’s employment
with the Company and in order to carry out Associate’s duties thereunder, Associate has or will become privy to the Trade
Secrets of the Company. Accordingly, Associate shall not disclose, divulge, publish to others, or use for any purpose, except as
necessary to perform Associate’s duties while employed by the Company, any Trade Secret of the Company without the prior
written consent of the Company, for so long as such information shall remain a Trade Secret under applicable law.
(ii) CONFIDENTIAL
INFORMATION. Associate acknowledges that in order to conduct its business, the Company owns and uses written and unwritten confidential
information. “Confidential Information” means data and information relating to the business of the Company (which may
not rise to the level of a Trade Secret under applicable law) which is or has been disclosed to Associate or of which Associate
became aware as a consequence of or through Associate’s relationship with the Company and which has value to the Company
and is not generally known to its competitors. Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Associate without authorization)
or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means.
Associate further acknowledges that in the course of his employment with the Company and in order to carry out his duties thereunder,
Associate has or will become privy to Confidential Information of the Company. Accordingly, Associate agrees that while employed
by the Company, and for a period of two (2) years from the conclusion of Associate’s employment with the Company for any
reason, Associate will not disclose, divulge, publish to others or use for any purpose any Confidential Information of the Company
except to the extent necessary to perform his duties and responsibilities as an Associate for the Company, without the prior written
consent of the Company.
(iii) NOTICE
OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. Associate acknowledges that the Company hereby designates Trade Secrets and Confidential
Information to include, by way of illustration but not limitation, confidential customer and prospective customer lists; information
provided to the Company by its customers or clients or prospective customers or clients; customer preferences; client contacts;
marketing plans, presentations and strategies; products; processes; designs; formulas; methods; clinical data; licenses; software;
computer or electronic data disks or tapes; processes; research and plans for research; computer programs; methods of operations
and costs data; contracts; personnel information; credit terms; financial information (including without limitation information
regarding fee and pricing structures, assets, status of client accounts or credit); or any other information designated as a trade
secret, confidential or proprietary by the Company.
(iv) TREATMENT OF TRADE SECRETS
AND CONFIDENTIAL INFORMATION. Associate understands and agrees to treat whatever information the Company wants to protect from
disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer
lists “confidential,” and restricting access to the customer list to designated and appropriate personnel, and the
like. Associate further agrees, as an Associate, to use his best efforts and the utmost diligence to guard and protect the Company’s
Trade Secrets and Confidential Information from disclosure to any competitor, customer or supplier of the Company or any other
person, firm, corporation or other entity, unless such disclosure has been specifically authorized by the Company in writing.
(d) Non-Competition.
Associate acknowledges that the Company is engaged in the Company Business as defined herein. Associate further acknowledges that
the Company Business is primarily concentrated in and focused in Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Oklahoma,
Tennessee and Texas (hereinafter the “Territory”), and that Associate’s duties and responsibilities were not
limited to any particular area within that region but will be within and throughout the entire Territory, and rendered in connection
with Company Business. Associate further agrees and acknowledges that because of his association with the Company and his access
to Trade Secrets and confidential, proprietary information of the Company which relate to the Company Business as herein defined,
Associate’s competition with the Company as or with a direct competitor in the same line of business as the Company would
damage and impair the business of the Company. Therefore, during the term of his employment and for a period of one (1) year from
the conclusion of Associate’s employment with the Company for any reason, Associate shall not, for himself or on behalf of
any other person, firm, partnership, association, corporation, business organization, entity or enterprise, perform duties which
are substantially similar to the duties performed by Associate on behalf of Company within the Territory for any business engaged
in the Company Business as defined herein.
(e) Ownership of Work Product.
For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs, inventions
(whether or not patentable), and all works of authorship, including all worldwide rights therein under patent, copyright, trade
secret, confidential information, and other property rights, created or developed in whole or in part by Associate, relating to
the Company Business whether prior to the date of this Agreement or in the future, either (i) while employed by the Company and
that have been or will be paid for by the Company, or (ii) while employed by the Company (whether developed during working hours
or not) and not otherwise the subject of a written agreement between the Company and Associate. All Work Product shall be considered
work made for hire by Associate and owned by the Company. If any of the Work Product may not, by operation of law, be considered
work made for hire by Associate for the Company, or if ownership of all rights, title, and interest of the intellectual property
rights therein shall not otherwise vest exclusively in the Company, Associate hereby assigns to the Company, and upon the future
creation thereof automatically assigns to the Company without further consideration, the ownership of all Work Product. The Company
shall have the right to obtain and hold in its own name patents, copyrights, registrations and any other protection available in
the Work Product. Associate agrees to perform, during and after his employment, such further acts as may be necessary or desirable
to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested by the Company.
(f) Return
of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents,
files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs,
data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies
or extracts, stored in any medium), whether prepared or developed by Associate or otherwise coming into Associate’s possession,
whether maintained by Associate in the facilities of the Company, at Associate’s home, or at any other location, is, and
shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or reproductions
retained by Associate, in the event of Associate’s termination for any reason, or at any other time or times the Company
may request. Upon termination of employment for any reason, Associate agrees to sign and deliver the “Termination Certification”
attached hereto as Appendix B.
(g) Reasonable
Restrictions. Associate agrees and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in
order to protect the valuable proprietary assets, goodwill and business of the Company and that the restrictions will not prevent
or unreasonably restrict his ability to earn a livelihood. Associate also agrees and acknowledges that if his employment with the
Company ends for any reason, Associate will be able to earn a livelihood without violating the restrictions contained in this Agreement
and that Associate’s ability to earn a livelihood without violating said restrictions is an important reason in Associate
choosing to sign this Agreement.
7. Remedies.
The Associate expressly agrees that the remedy at law for any breach of the provisions of Section 6 will be inadequate and that
upon any such breach or threatened breach, the Company shall be entitled, as a matter of right, to injunctive relief in any court
of competent jurisdiction, in equity or otherwise, to enforce the specific performance of the Associate’s obligations under
these provisions without the necessity of proving the actual damage to the Company or the inadequacy of a legal remedy.
8. Termination Without
Compensation.
(a) The Employment
Term will terminate as of the end of the term of this Agreement unless terminated earlier in accordance with this Section 8, Section
9, Section 10, or Section 11.
(b) The Employment
Term may also be terminated by the Company for cause (“Cause”) with written notice to the Associate upon the occurrence
of any of the following:
(i) the commission
by the Associate of any deliberate and premeditated act involving moral turpitude detrimental to the economic interests of the
Company;
(ii) the conviction
of the Associate of a felony;
(iii) the willful
failure or refusal of the Associate to perform his duties hereunder (which failure or refusal persists after written notice from
the Company to the Associate complaining of such failure or refusal) or the Associate’s gross negligence of a material nature
in connection with the performance of such duties; or
(iv) the breach
by the Associate of any provision of this Agreement which is not cured within thirty (30) days subsequent to written notice from
the Company to the Associate of the breach.
(c) Upon termination
of the Employment Term under subsections (a) or (b) above, the parties hereto will be relieved of any further obligations hereunder
except for any obligations set forth in Section 6.
9. Termination Without
Cause. The Company shall have the right to terminate the Employment Term without Cause at any time. If the termination is effected
by the Company other than as described in Section 8, then, under such circumstances and subject to the Associate’s continued
compliance with the terms of this Agreement, (i) the Associate’s Base Salary then in effect hereunder will continue
to be payable in accordance with the Company’s payroll policy through the Employment Term, (ii) the Associate shall
be paid within sixty (60) days after termination the pro rata portion of the Bonus earned, if any, through the date of termination,
(iii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest
in full without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option Plan
(or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock options,
and (iv) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the Parent Company
shall immediately vest in full without regard to the achievement of any applicable performance conditions, unless otherwise prohibited
by the Amended and Restated Stock Incentive Plan (the “Incentive Plan”) (or successor plan) or the restricted stock
agreements between the Parent Company and the Associate with respect to such restricted stock awards; provided, however, that any
shares of restricted stock that are intended to constitute performance-based compensation within the meaning of Section 162(m)
of the Internal Revenue Code of 1986, as amended (the “Code”), shall become vested only to the extent provided pursuant
to the terms of the applicable restricted stock agreement and the provisions of this Section 9 shall not apply to any shares of
restricted stock that are intended to constitute performance-based compensation. Bonus payments to the Associate in accordance
with this Section 9 shall be paid no later than two and one-half (2½) months following the calendar year in which the termination
without Cause occurred.
Notwithstanding the foregoing, the Associate
shall not be entitled to receive any of the payments or benefits described in Section 9 unless, not later than sixty (60) days
after the termination date, the Associate has executed a release of claims against the Company and its affiliates (the “Release”),
and the period during which the Release may be revoked has expired without the Associate having revoked the Release. None of the
payments or benefits described in Section 9 shall be paid until the Release has been signed and become effective, and any payments,
which would otherwise be payable during such sixty-day period prior to the date the Release becomes effective, shall be accumulated
and paid to the Associate on the first payroll date following the date the Release becomes effective, without interest, or, if
such sixty-day period begins in one calendar year and ends in a second calendar year, the first payroll date during the second
calendar year following the date the Release becomes effective, as described above.
10. Death of the
Associate. If the Associate dies during the Employment Term, the Employment Term shall terminate, and within 60 days after
death, or as soon thereafter as administratively practicable, the Company will pay to the Associate’s estate (i) the
Associate’s Base Salary then in effect through the end of the calendar month in which such death occurs, and (ii) the
pro rata portion of the Bonus earned, if any, through the date of death. In addition, all outstanding and unvested stock options
previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of
any applicable performance conditions, unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements
between the Parent Company and the Associate with respect to such stock options, and all outstanding and unvested shares of restricted
stock (if any) previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the
achievement of any applicable performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or
the restricted stock agreements between the Parent Company and the Associate with respect to such restricted stock awards.
11. Termination Following
Disability. If the Associate becomes disabled during the Employment Term, the Company may terminate the Employment Term, in
which event the Company will pay to the Associate the Associate’s Base Salary then in effect, payable in accordance with
the Company’s payroll policy through the end of the Employment Term; provided, however, any amounts payable to the Associate
under the Company’s disability insurance policy shall be deducted from the amounts payable to the Associate hereunder. For
the purposes of this Agreement, the Associate shall be deemed to be “disabled” when, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last for a period of not less than
twelve (12) consecutive months, he has received replacement income for a period of at least three (3) months under the Company’s
disability insurance policy, or if the Company does not have a disability insurance policy for the Associate, the Associate shall
be deemed disabled if he is unable to perform his services or discharge his duties as an Associate of the Company by reason of
any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for
a period of not less than twelve (12) consecutive months. Any disability, as defined herein, shall not constitute “Cause”
for purposes of Section 8(b) hereof. In addition, all outstanding and unvested stock options previously granted to the Associate
by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions,
unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and
the Associate with respect to such stock options, and all outstanding and unvested shares of restricted stock (if any) previously
granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable
performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements
between the Parent Company and the Associate with respect to such restricted stock awards.
12. Change in Control
of the Parent Company
(a) If a Double
Trigger Event (as defined in Section 12(c) herein) occurs in connection with a Change in Control (as defined in Section 12(b) herein)
of the Parent Company, on the sixty-day anniversary of the date of the Double Trigger Event, (i) the Company shall pay to the Associate
a lump sum cash payment equal to 2.99 times the Associate’s Base Salary in effect immediately prior to the Change in Control;
(ii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest
in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option
Plan (or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock
options; and (iii) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the
Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless
otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements between the Parent Company and
the Associate with respect to such restricted stock awards (collectively, (i), (ii) and (iii) are referred to as the “Change
in Control Payments”).
Notwithstanding
the foregoing, the Associate shall not be entitled to receive any of the payments or benefits described in Section 12 unless, not
later than sixty (60) days after the termination date, the Associate has executed a release of claims against the Company and its
affiliates (the “Release”), and the period during which the Release may be revoked has expired without the Associate
having revoked the Release. None of the payments or benefits described in Section 12 shall be paid until the Release has been signed
and become effective, and any payments, which would otherwise be payable during such sixty-day period prior to the date the Release
becomes effective, shall be accumulated and paid to the Associate on the first payroll date following the date the Release becomes
effective, without interest, or, if such sixty-day period begins in one calendar year and ends in a second calendar year, the first
payroll date during the second calendar year following the date the Release becomes effective, as described above.
(b) For purposes
of this Section 12, “Change in Control” of the Parent Company shall mean:
(i) Change in
Ownership. The acquisition by an individual, entity or group (within the meaning of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”)) (a “Person”) of ownership of stock of the Parent Company that, together
with stock held by such Person, constitutes more than 50% of the total fair market value or total voting power of the stock of
the Parent Company. However, if any Person is considered to own more than 50% of the total fair market value of total voting power
of the stock of the Parent Company, the acquisition of additional stock by the same Person is not considered to cause a change
in ownership of the Parent Company (or to cause a change in the effective control of the Parent Company). An increase in the percentage
of stock owned by any one Person as a result of a transaction in which the Parent Company acquires its stock in exchange for property
will be treated as an acquisition of stock for purposes of this paragraph. This paragraph applies only when there is a transfer
of stock of the Parent Company (or issuance of stock of the Parent Company) and stock in the Parent Company remains outstanding
after the transaction; or
(ii) Change
in Effective Control. (A) the acquisition by any Person during the 12-month period ending on the date of the most recent acquisition
by such Person, of ownership of stock of the Parent Company possessing 35% or more of the total voting power of the stock of the
Parent Company; or (B) the replacement of a majority of members of the Parent Company’s Board of Directors during any 12-month
period by directors whose appointment or election is not endorsed by a majority of the members of the Parent Company’s Board
of Directors prior to the date of the appointment or election.
A change in effective
control also may occur in any transaction in which either of the two corporations involved in the transaction has a “Change
in Ownership” under paragraph (i) or “Change in Ownership of a Substantial Portion of the Company’s Assets”
under paragraph (iii). If any one Person is considered to effectively control the Parent Company, the acquisition of additional
control of the Parent Company by the same Person is not considered to cause a change in the effective control of the Parent Company
(or to cause a “Change in Ownership” of the Parent Company within the meaning of paragraph (i) above); or
(iii) Change
in Ownership of a Substantial Portion of Assets. The acquisition by any Person during the 12-month period ending on the date of
the most recent acquisition by such Person, of assets from the Parent Company that have a total gross fair market value equal to
or more than 40% of the total gross fair market value of all of the assets of the Parent Company immediately prior to such acquisition(s).
For this purpose, gross fair market value means the value of the assets of the Parent Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such assets. No Change in Control shall be deemed to
have occurred in the event of a transfer to a related person or as described in Code Section 409A.
The definition
of Change in Control in this Subsection 12(b), and all other terms and provisions of this Agreement, shall be interpreted at all
times in such a manner as to comply with Code Section 409A, meaning that no additional income tax is imposed on the Associate pursuant
to Code Section 409A(1)(a).
(c) For purposes
of this Section 12, a “Double Trigger Event” shall be deemed to occur if, within the period beginning six (6) months
prior to a Change in Control and ending two (2) years following such Change in Control, (i) the Associate’s employment is
involuntarily terminated by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other
than for Cause, or (ii) the Associate terminates his employment for Good Reason (as defined in Section 12(d) herein). If the termination
of the Associate’s employment, as contemplated by this Section 12(c), occurs prior to the Change in Control, then the Associate
shall be treated for purposes of this Section 12 as being employed on the date the Change in Control becomes effective and the
Associate’s Base Salary in effect immediately prior to such termination shall be deemed in effect, for purposes of this Section
12, immediately prior to the Change in Control. For purposes of this Section 12, the date of the Double Trigger Event shall be
the later of the effective date of the Change in Control and the date of the Associate’s termination of employment as contemplated
in this Section 12(c).
(d) For purposes
of this Section 12, “Good Reason” shall mean:
(i) If the
Associate is a party to an employment or service agreement with the Company, the Parent Company or an affiliate of the Company
that supersedes and replaces, in whole or in part, any provisions of this Agreement and such agreement provides for a definition
of Good Reason, the definition contained therein; or
(ii) If no such
agreement exists, the Associate’s resignation from the Company within thirty (30) days following the occurrence of any of
the following events with respect to the Associate:
(A) Without
the Associate’s express written consent, the significant reduction of the Associate’s duties, authority, responsibilities,
or reporting relationships relative to the Associate’s duties, authority, responsibilities, or reporting relationships as
in effect immediately prior to such reduction, or the assignment to the Associate of such reduced duties, authority, responsibilities,
or reporting relationships, which reduction or assigned reduction remains in effect five (5) business days after written notice
by the Associate to the Chief Executive Officer or the Chief Financial Officer of the Parent Company (or the surviving or acquiring
entity, as the case may be) of such conditions; provided, however, that the mere occurrence of a Change in Control shall not, in
and of itself, constitute a material adverse change in the Associate’s duties, authority, responsibilities or reporting relationships.
(B) A material
reduction by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be) in the Base Salary, bonus
structure or benefits of the Associate as in effect immediately prior to such reduction, with the result that the Associate’s
overall benefits package is significantly reduced; or
(C) The relocation
of the Associate’s principal work location to a facility or a location more than fifty (50) miles from the Associate’s
then present principal work location, without the Associate’s express written consent.
(e) The Change
in Control Payments shall be in addition to any other rights and benefits for which the Associate is eligible, either by way of
contract or with respect to rights and benefits generally available to other executive officers or Associates of the Company.
13. Definition of
Termination of Employment. “Termination of Employment” as used in this Agreement shall have the same meaning as
set out in, and shall occur on the date determined in accordance with, Section 1.409A-1(h) of the regulations promulgated under
Code Section 409A.
14. Specified Employee
Delay. If the Associate is a “specified employee” within the meaning of Code Section 409A, any benefits or payments
(including installments and insurance premiums and contributions) which (a) constitute a “deferral of compensation”
under Code Section 409A, (b) become payable as a result of the Associate’s termination of employment for reasons other than
death, and (c) become due under this Agreement during the first six (6) months (or such longer period as required by Code Section
409A) after termination of employment shall be delayed and all such delayed payments (or delayed installments, premiums or contributions)
shall be paid to the Associate in full in the seventh (7th) month after the date of termination and all subsequent payments
(or installments) shall be paid in accordance with their original payment schedule. To the extent that any insurance premiums or
other benefit contributions constituting a “deferral of compensation” become subject to the above delay, the Associate
shall be responsible for paying such amounts directly to the insurer or other third party and shall receive reimbursement from
Company for such amounts in the seventh (7th) month as described above. This paragraph shall not apply to payments made
as a result of a termination of employment that is the result of the Associate’s death.
15. Notices.
All notices, demands and requests which may be given or which are required to be given by either party to the other, and any exercise
of a right of termination provided by this Agreement, shall be in writing and shall be deemed effective when either: (a) personally
delivered to the intended recipient; (b) sent by certified or registered mail, return receipt requested, addressed to the
intended recipient at the address specified below; (c) delivered in person to the address set forth below for the party to
which the notice was given; (d) deposited into the custody of a nationally recognized overnight delivery service such as FedEx
Corporation or United Parcel Service, Inc., addressed to such party at the address specified below; or (e) sent by facsimile,
telegram or telex, provided that receipt for such facsimile, telegram or telex is verified by the sender and followed by a notice
sent in accordance with one of the other provisions set forth above. Notices shall be effective on the date of delivery, or receipt
of, if delivery is not accepted, on the earlier of the date that delivery is refused or three (3) days after the date the notice
is mailed. For purposes of this paragraph, the addresses of the parties for all notices are as follows (unless changes by similar
notice in writing are given by the particular person whose address is to be changed):
If to the Associate,
to William H. Henderson, ____________________________ ________________________________________________;
If to the Company,
to America’s Car-Mart, Inc., 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-273-7556.
With a copy to
W. Brett Papasan, Chief Legal Officer, 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-271-0796;
And a copy to
Jeffrey A. Williams, Chief Financial Officer, 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-464-4234.
Any party hereto may designate
a different address by written notice given to the other parties.
16. Governing Law.
This agreement shall be construed in accordance with and governed by the laws of the State of Arkansas.
17. Compliance with
Section 409A. The payments due under this Agreement are intended to comply with Section 409A of the Code (“Code Section
409A”) or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding
any other provision of this Agreement, payments of “nonqualified deferred compensation” provided under this Agreement
may only be made upon an event and in a manner that complies with Code Section 409A or an applicable exemption. Any payments under
this Agreement that may be excluded from Code Section 409A either as separation pay due to an involuntary separation from service
or as a short-term deferral shall be excluded from Code Section 409A to the maximum extent possible. To the extent Code Section
409A applies, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments of “nonqualified
deferred compensation” to be made under this Agreement by reason of a termination of employment shall only be made if such
termination of employment constitutes a “separation from service” under Code Section 409A. Notwithstanding the foregoing,
the Company makes no representations that the payments and benefits provided under this Agreement comply with Code Section 409A
and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may
be incurred by the Associate on account of non-compliance with Code Section 409A. To the extent required by Code Section 409A,
each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following: (i) the
amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (ii) any reimbursement of an eligible
expense shall be paid to the Associate on or before the last day of the calendar year following the calendar year in which the
expense was incurred; and (iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation
or exchange for another benefit.
18. Section 280G.
(a) In the event that
the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent upon
a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be
received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total
amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and
after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate
would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax.
(b) The accounting firm
engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary in connection
with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such calculations,
the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to perform such
calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting
Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to
be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations,
together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date
on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by
Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines
that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably
acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of
the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments
or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following
order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s
approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election
does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would
otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting
of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced,
such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless
the Associate elects in writing a different order for cancellation.
19. Assignability.
The Associate may not assign his interest in or delegate his duties under this Agreement. The rights and obligations of the Company
hereunder may be assigned only by operation of law in connection with a merger in which the Company is not the surviving corporation
or in connection with the sale of substantially all of the assets of the Company; and in the latter event, such assignment shall
not relieve the Company of its obligations hereunder.
20. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns.
21. Entire Agreement;
Modification. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties hereto. This Agreement supersedes and replaces any
and all prior employment agreements between the Company and the Associate, all of which are hereby terminated and declared null
and void; provided, however, this Agreement shall not affect, in any manner, previously awarded restricted stock or stock options,
which awards shall remain in full force and effect in accordance with the terms of such previous awards.
22. Duration.
Notwithstanding the termination of the Employment Term and of the Associate’s employment by the Company, this Agreement shall
continue to bind the parties for so long as any obligations remain under this Agreement, and, in particular, the Associate shall
continue to be bound by the terms of Section 6.
23. Waiver. No
waiver by the Company of any breach by the Associate of this Agreement shall be construed to be a waiver as to succeeding breaches.
24. Enforceability.
The covenants and provisions contained herein are severable and are to be interpreted as such to the extent permitted by applicable
law. The parties understand, acknowledge and agree that should any provision of this Agreement be declared or determined by any
court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions
of this Agreement shall not be affected thereby, and that the Agreement will be amended to delete or modify, as necessary, any
invalid or unenforceable parts, terms or provisions to the extent necessary to allow for enforcement.
25. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same agreement.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the
parties have executed this Agreement on June 23, 2015, but this Agreement shall be effective as of the day and year first above
written.
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COMPANY: |
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AMERICA’S CAR-MART,
INC., an
Arkansas corporation
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By: |
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Name: |
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Title: |
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ASSOCIATE: |
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William H. Henderson |
(Signature Page to Employment
Agreement of William H. Henderson)
APPENDIX A
Applicable to the Bonus
pursuant to Section 4(b)
of Employment Agreement
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Fiscal Year |
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2016 |
2017 |
2018 |
2019 |
2020 |
| Projected GAAP Earnings Per Share |
2015 Actual GAAP Earnings Per Share multiplied by [X.XX]* |
2016 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2017 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2018 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2019 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
| Bonus Potential: |
$60,000 |
$70,000 |
$80,000 |
$90,000 |
$100,000 |
If Parent Company’s actual GAAP Earnings
Per Share equals 95-99% of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage point),
the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 0.67.
If Parent Company’s actual GAAP Earnings
Per Share equals 100-104% of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage
point), the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 1.00.
If Parent Company’s actual GAAP Earnings
Per Share equals 105% or more of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage
point), the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 1.33.
*Filed under an application for confidential treatment.
APPENDIX B
TERMINATION CERTIFICATION
The undersigned Associate
certifies that he/she does not possess and has not failed to return any property belonging to AMERICA’S CAR MART, INC., its
parent, subsidiaries, affiliates, successors or assigns (together, the “Company”) or its customers, including, but
not limited to, equipment, devices, records, correspondence, documents, files, reports, studies, manuals, compilations, drawings,
blueprints, sketches, videos, memoranda, computer software and programs, data or any other information, including Trade Secrets
and Confidential Information as set forth herein (whether originals, copies or extracts, stored in any medium), whether prepared
or developed by Associate or otherwise coming into Associate’s possession, whether maintained by Associate in the facilities
of the Company, at Associate’s home, or at any other location.
Associate further certifies
that he/she will comply with all the terms of his/her Non-Competition, Non-Solicitation, Non-Disclosure, and Confidentiality Agreement.
| Date: ____________________ |
___________________________________ |
| |
Associate |
B-1
Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement
(the “Agreement”) is made effective as of May 1, 2015 between AMERICA’S CAR MART, INC., an Arkansas corporation
(the “Company”) and JEFFREY A. WILLIAMS (the “Associate”).
W I T N E
S S E T H:
WHEREAS, the Company
is engaged in the business of the sale and financing of used vehicles (“Company Business”); and
WHEREAS,
the Associate is a Senior Executive Officer of the Company, and the Company desires to continue the employment of the Associate,
and the Associate desires to provide his services to the Company upon the terms and conditions hereinafter set forth;
WHEREAS,
the Company periodically sells its finance receivables to Colonial Auto Finance, Inc., an Arkansas corporation (“Colonial”)
and services those loans on Colonial’s behalf (collectively, the Company and Colonial are referred to herein as “Car-Mart”);
and
WHEREAS,
America’s Car-Mart, Inc., a Texas corporation (the “Parent Company”), owns 100% of the outstanding common
stock of the Company;
WHEREAS, in order to
conduct its business, the Company owns and uses trade secrets as defined under applicable law, as well as confidential and propriety
information; and
WHEREAS, the Associate,
during the term of his employment with the Company and in order to carry out his duties with the Company, has or will have contact
with the Company’s customers and employees and has or will have access to and has or will become privy to or acquainted with
certain confidential information and trade secrets, which are owned by the Company and which are regularly used in the business
of the Company and which are generally not known to its competitors;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties hereto, each intending to
be legally bound hereby, agree as follows:
1. Employment.
The Company hereby continues the employment of the Associate as a Senior Executive Officer of the Company, and the Associate accepts
such employment. During the term of employment under this Agreement (the “Employment Term”), the Associate shall perform
such duties as shall reasonably be required of a Senior Executive Officer of the Company. The Associate further agrees to perform,
without additional compensation, such other work for the Company and for any subsidiary or affiliate of the Company in which the
Company has an interest, including, without limitation, Colonial and the Parent Company, as the Board of Directors of the Company
or the Parent Company shall from time to time reasonably specify. It is expressly agreed and understood between the Company and
the Associate that the term of this Agreement is in no way dependent upon the Associate’s holding or being elected to any
office of the Company. The Associate may be deemed an employee of, and paid by the Company, Colonial, or the Parent Company, as
reasonably determined by the Company.
*Filed under an application for confidential treatment.
2. Performance.
The Associate agrees to devote his entire business efforts to the performance of his duties hereunder, provided, however, that
the Associate may engage in personal investment activities not involving the Company so long as they do not interfere with the
performance of his duties hereunder.
3. Term.
Unless otherwise terminated in accordance with Sections 8, 9, 10 or 11, the Employment Term shall be for a term ending April 30,
2020. This Agreement shall be automatically renewed for successive additional Employment Terms of one (1) year each unless notice
of termination is given in writing by either party to the other party at least thirty (30) days prior to the expiration of the
initial Employment Term or any renewal Employment Term.
(a) Base
Salary and Benefits. The basic annual salary of the Associate for his employment services hereunder shall be $367,290 or such higher
annual salary, if any, as shall be approved by the Board of Directors of the Parent Company from time to time (the “Base
Salary”), which shall be payable in accordance with the Company’s payroll policy. Nothing contained herein shall affect
or in any way limit the Associate’s rights as an Associate of the Company to participate in any Company 401(k) profit sharing
plan or medical and life insurance programs offered by the Company to its employees, all of which shall be available to the Associate
to the same extent as if this Agreement had not existed, and compensation received by the Associate hereunder shall be in addition
to the foregoing. In addition, nothing contained herein shall affect or in any way limit the Associate’s eligibility to participate
in any nonqualified deferred compensation plan of the Company or the Parent.
(b) Bonus.
In addition to the Base Salary and fringe benefits described above, the Associate shall be eligible to earn an annual cash bonus
(the “Bonus”) during the term hereof beginning May 1, 2015 and ending April 30, 2020. The Bonus shall be based upon
Parent Company’s projected fully diluted earnings per share calculated in accordance with GAAP for each fiscal year (“GAAP
Earnings Per Share”). The Bonus will depend on the Parent Company attaining a minimum of 95% of its projected GAAP Earnings
Per Share, as set forth in Appendix A to this Agreement. The Bonus, if any, shall be paid each fiscal year, within fifteen
(15) days following the Parent Company’s filing of its annual report on Form 10-K for such fiscal year (but no later than
two and one-half (2½) months following the calendar year in which the Bonus was earned), based upon the Parent Company’s
GAAP Earnings Per Share for that fiscal year. Any Bonus shall be deemed to be earned by the Associate if the Associate was an employee
of the Company as of the last day of the fiscal year in question.
(c) Non-Qualified
Stock Options.
(i) Subject
to Section 4(c)(iii) herein, the Parent Company will grant to the Associate, pursuant to the Parent Company’s Amended and
Restated Stock Option Plan (the “Option Plan”), non-qualified stock options to purchase an aggregate of 30,000 shares
of Parent Company Stock, as follows:
(A) A
non-qualified stock option to purchase 10,000 shares of Parent Company Stock, which will vest in full (or “cliff” vest)
on April 30, 2020, subject to the Associate’s continuous service (as that term is defined in the Option Plan) as of the vesting
date; and
(B) A
non-qualified stock option to purchase 20,000 shares of Parent Company Stock, with vesting of such option subject to the attainment
of certain performance conditions based on the Parent Company’s consolidated net income growth during fiscal years 2016 through
2020. If the Parent Company’s cumulative consolidated net income growth, calculated on a compound basis, for the five (5)
fiscal years ending April 30, 2020 is equal to 10% or more, the stock option will “cliff” vest in its entirety (20,000
shares) on the date which marks the fifth (5th) anniversary of the stock option grant date (the “Vesting Date”).
If the Parent Company’s cumulative consolidated net income growth, calculated on a compound basis, for the five (5) fiscal
years ending April 30, 2020 is equal to 5% or more but less than 10%, the stock option will “cliff” vest as to 10,000
shares on the Vesting Date. If the Company’s cumulative consolidated net income growth, calculated on a compound basis, for
the five (5) fiscal years ending April 30, 2020 is less than 5%, the stock option will be forfeited.
(ii) For
purposes of this Section 4(c), “consolidated net income” for a given fiscal year shall mean “Net income”
as reported in the Company’s consolidated statement of operations included in the Company’s Annual Report on Form 10-K
for such fiscal year as filed with the Securities and Exchange Commission, except that if on the Vesting Date the Company has not
yet filed its Annual Report on Form 10-K for the fiscal year ending April 30, 2020, “consolidated net income” for fiscal
year 2020 shall be the Company’s “Net income” as reported in the Company’s public earnings press release
for such fiscal year. All terms used in this Section 4(c) shall have the definitions set forth in this Agreement, the Option Plan
or the applicable Stock Option Agreement, as the case may be.
(iii) The
stock option grants under this Section 4(c) shall be made on August 5, 2015, the date of the Parent Company’s annual meeting
of shareholders, subject to and contingent upon the approval by such shareholders of the Option Plan.
5. Expense Account
and Vacations. Matters relating to expense accounts for the Associate, vacations and the like shall be mutually agreed upon
from time to time. However, the Company agrees to reimburse the Associate for all expenses reasonably incurred by him on behalf
of the Company in accordance with the prevailing practices and policies of the Company. In addition, the Associate shall be entitled
to that number of days of paid vacation and paid sick leave as is consistent with the prevailing practices and policies of the
Company for other employees in the same or similar position as that held by the Associate hereunder.
6. Non-Competition,
Non-Solicitation, Non-Disclosure, and Confidentiality
Provisions
(a) Non-Solicitation:
Customers. During Associate’s employment and for one (1) year immediately following the cessation of Associate’s employment
with the Company for any reason, Associate shall not, on his own behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise (except the Company), solicit, call upon, or attempt to solicit or call
upon, any customer of the Company, or any representative of any customer of the Company with a view to selling or providing any
product or service competitive with any product or service sold or provided by the Company in the Company Business, as defined
herein, during the twelve (12) month period immediately preceding cessation of Associate’s employment with the Company, provided
that the restrictions set forth in this section shall apply only to customers of the Company, or representatives of customers of
the Company with whom Associate had material contact during such twelve (12) month period. “Material contact” exists
between Associate and each of the Company’s existing customers: (i) with whom Associate actually dealt for a business purpose
while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose business
dealings with the Company were handled, coordinated or supervised by Associate or performed by Associate in whole or in part.
(b) Non-Solicitation:
Employees. During Associate’s employment and for one (1) year immediately following the cessation of Associate’s employment
with the Company for any reason, Associate will not solicit or in any manner encourage employees of the Company to leave the employ
of the Company. The foregoing prohibition applies only to employees with whom Associate had material contact pursuant to Associate’s
duties during the twelve (12) month period immediately preceding cessation of Associate’s employment with the Company. “Material
contact” means interaction between Associate and another employee of the Company: (i) with whom Associate actually dealt
or worked with; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or
supervised by Associate.
(c) Non-Disclosure.
(i) TRADE
SECRETS. Associate acknowledges that the Company owns and uses trade secrets as defined under applicable law. “Trade secret(s)”
means information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern,
a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans,
or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
(a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy. Associate further acknowledges that in the course of Associate’s employment
with the Company and in order to carry out Associate’s duties thereunder, Associate has or will become privy to the Trade
Secrets of the Company. Accordingly, Associate shall not disclose, divulge, publish to others, or use for any purpose, except as
necessary to perform Associate’s duties while employed by the Company, any Trade Secret of the Company without the prior
written consent of the Company, for so long as such information shall remain a Trade Secret under applicable law.
(ii) CONFIDENTIAL
INFORMATION. Associate acknowledges that in order to conduct its business, the Company owns and uses written and unwritten confidential
information. “Confidential Information” means data and information relating to the business of the Company (which may
not rise to the level of a Trade Secret under applicable law) which is or has been disclosed to Associate or of which Associate
became aware as a consequence of or through Associate’s relationship with the Company and which has value to the Company
and is not generally known to its competitors. Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Associate without authorization)
or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means.
Associate further acknowledges that in the course of his employment with the Company and in order to carry out his duties thereunder,
Associate has or will become privy to Confidential Information of the Company. Accordingly, Associate agrees that while employed
by the Company, and for a period of two (2) years from the conclusion of Associate’s employment with the Company for any
reason, Associate will not disclose, divulge, publish to others or use for any purpose any Confidential Information of the Company
except to the extent necessary to perform his duties and responsibilities as an Associate for the Company, without the prior written
consent of the Company.
(iii) NOTICE
OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. Associate acknowledges that the Company hereby designates Trade Secrets and Confidential
Information to include, by way of illustration but not limitation, confidential customer and prospective customer lists; information
provided to the Company by its customers or clients or prospective customers or clients; customer preferences; client contacts;
marketing plans, presentations and strategies; products; processes; designs; formulas; methods; clinical data; licenses; software;
computer or electronic data disks or tapes; processes; research and plans for research; computer programs; methods of operations
and costs data; contracts; personnel information; credit terms; financial information (including without limitation information
regarding fee and pricing structures, assets, status of client accounts or credit); or any other information designated as a trade
secret, confidential or proprietary by the Company.
(iv) TREATMENT OF TRADE
SECRETS AND CONFIDENTIAL INFORMATION. Associate understands and agrees to treat whatever information the Company wants to protect
from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer
lists “confidential,” and restricting access to the customer list to designated and appropriate personnel, and the
like. Associate further agrees, as an Associate, to use his best efforts and the utmost diligence to guard and protect the Company’s
Trade Secrets and Confidential Information from disclosure to any competitor, customer or supplier of the Company or any other
person, firm, corporation or other entity, unless such disclosure has been specifically authorized by the Company in writing.
(d) Non-Competition.
Associate acknowledges that the Company is engaged in the Company Business as defined herein. Associate further acknowledges that
the Company Business is primarily concentrated in and focused in Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Oklahoma,
Tennessee and Texas (hereinafter the “Territory”), and that Associate’s duties and responsibilities were not
limited to any particular area within that region but will be within and throughout the entire Territory, and rendered in connection
with Company Business. Associate further agrees and acknowledges that because of his association with the Company and his access
to Trade Secrets and confidential, proprietary information of the Company which relate to the Company Business as herein defined,
Associate’s competition with the Company as or with a direct competitor in the same line of business as the Company would
damage and impair the business of the Company. Therefore, during the term of his employment and for a period of one (1) year from
the conclusion of Associate’s employment with the Company for any reason, Associate shall not, for himself or on behalf of
any other person, firm, partnership, association, corporation, business organization, entity or enterprise, perform duties which
are substantially similar to the duties performed by Associate on behalf of Company within the Territory for any business engaged
in the Company Business as defined herein.
(e) Ownership of Work
Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,
inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent, copyright,
trade secret, confidential information, and other property rights, created or developed in whole or in part by Associate, relating
to the Company Business whether prior to the date of this Agreement or in the future, either (i) while employed by the Company
and that have been or will be paid for by the Company, or (ii) while employed by the Company (whether developed during working
hours or not) and not otherwise the subject of a written agreement between the Company and Associate. All Work Product shall be
considered work made for hire by Associate and owned by the Company. If any of the Work Product may not, by operation of law, be
considered work made for hire by Associate for the Company, or if ownership of all rights, title, and interest of the intellectual
property rights therein shall not otherwise vest exclusively in the Company, Associate hereby assigns to the Company, and upon
the future creation thereof automatically assigns to the Company without further consideration, the ownership of all Work Product.
The Company shall have the right to obtain and hold in its own name patents, copyrights, registrations and any other protection
available in the Work Product. Associate agrees to perform, during and after his employment, such further acts as may be necessary
or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested by the
Company.
(f) Return
of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents,
files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs,
data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies
or extracts, stored in any medium), whether prepared or developed by Associate or otherwise coming into Associate’s possession,
whether maintained by Associate in the facilities of the Company, at Associate’s home, or at any other location, is, and
shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or reproductions
retained by Associate, in the event of Associate’s termination for any reason, or at any other time or times the Company
may request. Upon termination of employment for any reason, Associate agrees to sign and deliver the “Termination Certification”
attached hereto as Appendix B.
(g) Reasonable
Restrictions. Associate agrees and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in
order to protect the valuable proprietary assets, goodwill and business of the Company and that the restrictions will not prevent
or unreasonably restrict his ability to earn a livelihood. Associate also agrees and acknowledges that if his employment with the
Company ends for any reason, Associate will be able to earn a livelihood without violating the restrictions contained in this Agreement
and that Associate’s ability to earn a livelihood without violating said restrictions is an important reason in Associate
choosing to sign this Agreement.
7. Remedies.
The Associate expressly agrees that the remedy at law for any breach of the provisions of Section 6 will be inadequate and that
upon any such breach or threatened breach, the Company shall be entitled, as a matter of right, to injunctive relief in any court
of competent jurisdiction, in equity or otherwise, to enforce the specific performance of the Associate’s obligations under
these provisions without the necessity of proving the actual damage to the Company or the inadequacy of a legal remedy.
8. Termination
Without Compensation.
(a) The
Employment Term will terminate as of the end of the term of this Agreement unless terminated earlier in accordance with this Section
8, Section 9, Section 10, or Section 11.
(b) The
Employment Term may also be terminated by the Company for cause (“Cause”) with written notice to the Associate upon
the occurrence of any of the following:
(i) the
commission by the Associate of any deliberate and premeditated act involving moral turpitude detrimental to the economic interests
of the Company;
(ii) the
conviction of the Associate of a felony;
(iii) the
willful failure or refusal of the Associate to perform his duties hereunder (which failure or refusal persists after written notice
from the Company to the Associate complaining of such failure or refusal) or the Associate’s gross negligence of a material
nature in connection with the performance of such duties; or
(iv) the
breach by the Associate of any provision of this Agreement which is not cured within thirty (30) days subsequent to written notice
from the Company to the Associate of the breach.
(c) Upon
termination of the Employment Term under subsections (a) or (b) above, the parties hereto will be relieved of any further obligations
hereunder except for any obligations set forth in Section 6.
9. Termination
Without Cause. The Company shall have the right to terminate the Employment Term without Cause at any time. If the termination
is effected by the Company other than as described in Section 8, then, under such circumstances and subject to the Associate’s
continued compliance with the terms of this Agreement, (i) the Associate’s Base Salary then in effect hereunder will
continue to be payable in accordance with the Company’s payroll policy through the Employment Term, (ii) the Associate
shall be paid within sixty (60) days after termination the pro rata portion of the Bonus earned, if any, through the date of termination,
(iii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest
in full without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option Plan
(or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock options,
and (iv) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the Parent Company
shall immediately vest in full without regard to the achievement of any applicable performance conditions, unless otherwise prohibited
by the Amended and Restated Stock Incentive Plan (the “Incentive Plan”) (or successor plan) or the restricted stock
agreements between the Parent Company and the Associate with respect to such restricted stock awards; provided, however, that any
shares of restricted stock that are intended to constitute performance-based compensation within the meaning of Section 162(m)
of the Internal Revenue Code of 1986, as amended (the “Code”), shall become vested only to the extent provided pursuant
to the terms of the applicable restricted stock agreement and the provisions of this Section 9 shall not apply to any shares of
restricted stock that are intended to constitute performance-based compensation. Bonus payments to the Associate in accordance
with this Section 9 shall be paid no later than two and one-half (2½) months following the calendar year in which the termination
without Cause occurred.
Notwithstanding the
foregoing, the Associate shall not be entitled to receive any of the payments or benefits described in Section 9 unless, not later
than sixty (60) days after the termination date, the Associate has executed a release of claims against the Company and its affiliates
(the “Release”), and the period during which the Release may be revoked has expired without the Associate having revoked
the Release. None of the payments or benefits described in Section 9 shall be paid until the Release has been signed and become
effective, and any payments, which would otherwise be payable during such sixty-day period prior to the date the Release becomes
effective, shall be accumulated and paid to the Associate on the first payroll date following the date the Release becomes effective,
without interest, or, if such sixty-day period begins in one calendar year and ends in a second calendar year, the first payroll
date during the second calendar year following the date the Release becomes effective, as described above.
10. Death of
the Associate. If the Associate dies during the Employment Term, the Employment Term shall terminate, and within 60 days after
death, or as soon thereafter as administratively practicable, the Company will pay to the Associate’s estate (i) the
Associate’s Base Salary then in effect through the end of the calendar month in which such death occurs, and (ii) the
pro rata portion of the Bonus earned, if any, through the date of death. In addition, all outstanding and unvested stock options
previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of
any applicable performance conditions, unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements
between the Parent Company and the Associate with respect to such stock options, and all outstanding and unvested shares of restricted
stock (if any) previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the
achievement of any applicable performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or
the restricted stock agreements between the Parent Company and the Associate with respect to such restricted stock awards.
11. Termination
Following Disability. If the Associate becomes disabled during the Employment Term, the Company may terminate the Employment
Term, in which event the Company will pay to the Associate the Associate’s Base Salary then in effect, payable in accordance
with the Company’s payroll policy through the end of the Employment Term; provided, however, any amounts payable to the Associate
under the Company’s disability insurance policy shall be deducted from the amounts payable to the Associate hereunder. For
the purposes of this Agreement, the Associate shall be deemed to be “disabled” when, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last for a period of not less than
twelve (12) consecutive months, he has received replacement income for a period of at least three (3) months under the Company’s
disability insurance policy, or if the Company does not have a disability insurance policy for the Associate, the Associate shall
be deemed disabled if he is unable to perform his services or discharge his duties as an Associate of the Company by reason of
any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for
a period of not less than twelve (12) consecutive months. Any disability, as defined herein, shall not constitute “Cause”
for purposes of Section 8(b) hereof. In addition, all outstanding and unvested stock options previously granted to the Associate
by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions,
unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and
the Associate with respect to such stock options, and all outstanding and unvested shares of restricted stock (if any) previously
granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable
performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements
between the Parent Company and the Associate with respect to such restricted stock awards.
12. Change in
Control of the Parent Company
(a) If
a Double Trigger Event (as defined in Section 12(c) herein) occurs in connection with a Change in Control (as defined in Section
12(b) herein) of the Parent Company, on the sixty-day anniversary of the date of the Double Trigger Event, (i) the Company shall
pay to the Associate a lump sum cash payment equal to 2.99 times the Associate’s Base Salary in effect immediately prior
to the Change in Control; (ii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company
shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited
by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and the Associate with respect
to such stock options; and (iii) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate
by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions,
unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements between the Parent Company
and the Associate with respect to such restricted stock awards (collectively, (i), (ii) and (iii) are referred to as the “Change
in Control Payments”).
Notwithstanding
the foregoing, the Associate shall not be entitled to receive any of the payments or benefits described in Section 12 unless, not
later than sixty (60) days after the termination date, the Associate has executed a release of claims against the Company and its
affiliates (the “Release”), and the period during which the Release may be revoked has expired without the Associate
having revoked the Release. None of the payments or benefits described in Section 12 shall be paid until the Release has been signed
and become effective, and any payments, which would otherwise be payable during such sixty-day period prior to the date the Release
becomes effective, shall be accumulated and paid to the Associate on the first payroll date following the date the Release becomes
effective, without interest, or, if such sixty-day period begins in one calendar year and ends in a second calendar year, the first
payroll date during the second calendar year following the date the Release becomes effective, as described above.
(b) For
purposes of this Section 12, “Change in Control” of the Parent Company shall mean:
(i) Change
in Ownership. The acquisition by an individual, entity or group (within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”)) (a “Person”) of ownership of stock of the Parent Company that, together
with stock held by such Person, constitutes more than 50% of the total fair market value or total voting power of the stock of
the Parent Company. However, if any Person is considered to own more than 50% of the total fair market value of total voting power
of the stock of the Parent Company, the acquisition of additional stock by the same Person is not considered to cause a change
in ownership of the Parent Company (or to cause a change in the effective control of the Parent Company). An increase in the percentage
of stock owned by any one Person as a result of a transaction in which the Parent Company acquires its stock in exchange for property
will be treated as an acquisition of stock for purposes of this paragraph. This paragraph applies only when there is a transfer
of stock of the Parent Company (or issuance of stock of the Parent Company) and stock in the Parent Company remains outstanding
after the transaction; or
(ii) Change
in Effective Control. (A) the acquisition by any Person during the 12-month period ending on the date of the most recent acquisition
by such Person, of ownership of stock of the Parent Company possessing 35% or more of the total voting power of the stock of the
Parent Company; or (B) the replacement of a majority of members of the Parent Company’s Board of Directors during any 12-month
period by directors whose appointment or election is not endorsed by a majority of the members of the Parent Company’s Board
of Directors prior to the date of the appointment or election.
A change in
effective control also may occur in any transaction in which either of the two corporations involved in the transaction has a “Change
in Ownership” under paragraph (i) or “Change in Ownership of a Substantial Portion of the Company’s Assets”
under paragraph (iii). If any one Person is considered to effectively control the Parent Company, the acquisition of additional
control of the Parent Company by the same Person is not considered to cause a change in the effective control of the Parent Company
(or to cause a “Change in Ownership” of the Parent Company within the meaning of paragraph (i) above); or
(iii) Change
in Ownership of a Substantial Portion of Assets. The acquisition by any Person during the 12-month period ending on the date of
the most recent acquisition by such Person, of assets from the Parent Company that have a total gross fair market value equal to
or more than 40% of the total gross fair market value of all of the assets of the Parent Company immediately prior to such acquisition(s).
For this purpose, gross fair market value means the value of the assets of the Parent Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such assets. No Change in Control shall be deemed to
have occurred in the event of a transfer to a related person or as described in Code Section 409A.
The definition
of Change in Control in this Subsection 12(b), and all other terms and provisions of this Agreement, shall be interpreted at all
times in such a manner as to comply with Code Section 409A, meaning that no additional income tax is imposed on the Associate pursuant
to Code Section 409A(1)(a).
(c) For
purposes of this Section 12, a “Double Trigger Event” shall be deemed to occur if, within the period beginning six
(6) months prior to a Change in Control and ending two (2) years following such Change in Control, (i) the Associate’s employment
is involuntarily terminated by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other
than for Cause, or (ii) the Associate terminates his employment for Good Reason (as defined in Section 12(d) herein). If the termination
of the Associate’s employment, as contemplated by this Section 12(c), occurs prior to the Change in Control, then the Associate
shall be treated for purposes of this Section 12 as being employed on the date the Change in Control becomes effective and the
Associate’s Base Salary in effect immediately prior to such termination shall be deemed in effect, for purposes of this Section
12, immediately prior to the Change in Control. For purposes of this Section 12, the date of the Double Trigger Event shall be
the later of the effective date of the Change in Control and the date of the Associate’s termination of employment as contemplated
in this Section 12(c).
(d) For
purposes of this Section 12, “Good Reason” shall mean:
(i) If
the Associate is a party to an employment or service agreement with the Company, the Parent Company or an affiliate of the Company
that supersedes and replaces, in whole or in part, any provisions of this Agreement and such agreement provides for a definition
of Good Reason, the definition contained therein; or
(ii) If
no such agreement exists, the Associate’s resignation from the Company within thirty (30) days following the occurrence of
any of the following events with respect to the Associate:
(A) Without
the Associate’s express written consent, the significant reduction of the Associate’s duties, authority, responsibilities,
or reporting relationships relative to the Associate’s duties, authority, responsibilities, or reporting relationships as
in effect immediately prior to such reduction, or the assignment to the Associate of such reduced duties, authority, responsibilities,
or reporting relationships, which reduction or assigned reduction remains in effect five (5) business days after written notice
by the Associate to the Chief Executive Officer or the Chief Financial Officer of the Parent Company (or the surviving or acquiring
entity, as the case may be) of such conditions; provided, however, that the mere occurrence of a Change in Control shall not, in
and of itself, constitute a material adverse change in the Associate’s duties, authority, responsibilities or reporting relationships.
(B) A
material reduction by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be) in the Base
Salary, bonus structure or benefits of the Associate as in effect immediately prior to such reduction, with the result that the
Associate’s overall benefits package is significantly reduced; or
(C) The
relocation of the Associate’s principal work location to a facility or a location more than fifty (50) miles from the Associate’s
then present principal work location, without the Associate’s express written consent.
(e) The
Change in Control Payments shall be in addition to any other rights and benefits for which the Associate is eligible, either by
way of contract or with respect to rights and benefits generally available to other executive officers or Associates of the Company.
13. Definition
of Termination of Employment. “Termination of Employment” as used in this Agreement shall have the same meaning
as set out in, and shall occur on the date determined in accordance with, Section 1.409A-1(h) of the regulations promulgated under
Code Section 409A.
14. Specified
Employee Delay. If the Associate is a “specified employee” within the meaning of Code Section 409A, any benefits
or payments (including installments and insurance premiums and contributions) which (a) constitute a “deferral of compensation”
under Code Section 409A, (b) become payable as a result of the Associate’s termination of employment for reasons other than
death, and (c) become due under this Agreement during the first six (6) months (or such longer period as required by Code Section
409A) after termination of employment shall be delayed and all such delayed payments (or delayed installments, premiums or contributions)
shall be paid to the Associate in full in the seventh (7th) month after the date of termination and all subsequent payments
(or installments) shall be paid in accordance with their original payment schedule. To the extent that any insurance premiums or
other benefit contributions constituting a “deferral of compensation” become subject to the above delay, the Associate
shall be responsible for paying such amounts directly to the insurer or other third party and shall receive reimbursement from
Company for such amounts in the seventh (7th) month as described above. This paragraph shall not apply to payments made
as a result of a termination of employment that is the result of the Associate’s death.
15. Notices.
All notices, demands and requests which may be given or which are required to be given by either party to the other, and any exercise
of a right of termination provided by this Agreement, shall be in writing and shall be deemed effective when either: (a) personally
delivered to the intended recipient; (b) sent by certified or registered mail, return receipt requested, addressed to the
intended recipient at the address specified below; (c) delivered in person to the address set forth below for the party to
which the notice was given; (d) deposited into the custody of a nationally recognized overnight delivery service such as FedEx
Corporation or United Parcel Service, Inc., addressed to such party at the address specified below; or (e) sent by facsimile,
telegram or telex, provided that receipt for such facsimile, telegram or telex is verified by the sender and followed by a notice
sent in accordance with one of the other provisions set forth above. Notices shall be effective on the date of delivery, or receipt
of, if delivery is not accepted, on the earlier of the date that delivery is refused or three (3) days after the date the notice
is mailed. For purposes of this paragraph, the addresses of the parties for all notices are as follows (unless changes by similar
notice in writing are given by the particular person whose address is to be changed):
If to the
Associate, to Jeffrey A. Williams, ____________________________ ________________________________________________;
If to the
Company, to America’s Car-Mart, Inc., 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-273-7556.
With a copy
to W. Brett Papasan, Chief Legal Officer, 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-271-0796;
And a copy
to William H. Henderson, Chief Executive Officer, 802 S. E. Plaza Avenue, Suite 200, Bentonville, Arkansas 72712, Fax #479-464-4234.
Any party hereto may
designate a different address by written notice given to the other parties.
16. Governing
Law. This agreement shall be construed in accordance with and governed by the laws of the State of Arkansas.
17. Compliance
with Section 409A. The payments due under this Agreement are intended to comply with Section 409A of the Code (“Code
Section 409A”) or an exemption thereunder and shall be construed and administered in accordance with Section 409A.
Notwithstanding any other provision of this Agreement, payments of “nonqualified deferred compensation” provided under
this Agreement may only be made upon an event and in a manner that complies with Code Section 409A or an applicable exemption.
Any payments under this Agreement that may be excluded from Code Section 409A either as separation pay due to an involuntary separation
from service or as a short-term deferral shall be excluded from Code Section 409A to the maximum extent possible. To the extent
Code Section 409A applies, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments
of “nonqualified deferred compensation” to be made under this Agreement by reason of a termination of employment shall
only be made if such termination of employment constitutes a “separation from service” under Code Section 409A. Notwithstanding
the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Code
Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses
that may be incurred by the Associate on account of non-compliance with Code Section 409A. To the extent required by Code Section
409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following: (i)
the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (ii) any reimbursement of an eligible
expense shall be paid to the Associate on or before the last day of the calendar year following the calendar year in which the
expense was incurred; and (iii) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation
or exchange for another benefit.
18. Section 280G.
(a) In the event
that the total amount of payments to be received by the Associate, pursuant to this Agreement or otherwise, that are contingent
upon a change in ownership or control (within the meaning of Section 280G of the Code) would, but for this Section 18(a), be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the amount of payments to be
received by the Associate pursuant to this Agreement or otherwise shall be reduced to the maximum amount that will cause the total
amounts of the payments not to be subject to the Excise Tax, but only if the amount of such payments, after such reduction and
after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments the Associate
would otherwise be entitled to retain without such reduction after the payment of all applicable taxes, including the Excise Tax.
(b) The accounting
firm engaged by the Company for general audit purposes (the “Audit Firm”) shall perform any calculations necessary
in connection with this Section 18; provided that, if for any reason the Audit Firm is unable to, or declines to, perform such
calculations, the Company shall engage such other accounting firm as the Audit Firm shall recommend in writing to the Company to
perform such calculations (the Audit Firm or such other accounting firm, as applicable, being hereinafter referred to as the “Accounting
Firm”). The Company shall bear all expenses with respect to the determinations by such Accounting Firm required to
be made hereunder. The Accounting Firm engaged to make the determinations under this Section 18 shall provide its calculations,
together with detailed supporting documentation, to the Associate and the Company within fifteen (15) calendar days after the date
on which the Associate’s right to a payment contingent on a Change in Control is triggered (if requested at that time by
Associate or the Company) or such other time as requested by the Associate or the Company. If the Accounting Firm determines
that no Excise Tax is payable with respect to such payments, it shall furnish the Associate and the Company with an opinion reasonably
acceptable to Associate that no Excise Tax will be imposed with respect to such payments. Any good faith determinations of
the Accounting Firm made hereunder shall be final, binding, and conclusive upon Associate and the Company. If a reduction in payments
or benefits constituting “parachute payments” is required by Section 18(a), the reduction shall occur in the following
order unless the Associate elects in writing a different order (provided, however, that such election shall be subject to the Company’s
approval if made on or after the date on which the event that triggers the payment occurs and to the extent that such election
does not violate Code Section 409A): reduction of cash payments (in reverse order of the date on which such cash payments would
otherwise be made with the cash payments that would otherwise be made last being reduced first); cancellation of accelerated vesting
of stock awards; reduction of employee benefits. In the event that accelerated vesting of stock awards is to be reduced,
such accelerated vesting shall be cancelled in the reverse order of the grant date of the Associate’s stock awards unless
the Associate elects in writing a different order for cancellation.
19. Assignability.
The Associate may not assign his interest in or delegate his duties under this Agreement. The rights and obligations of the Company
hereunder may be assigned only by operation of law in connection with a merger in which the Company is not the surviving corporation
or in connection with the sale of substantially all of the assets of the Company; and in the latter event, such assignment shall
not relieve the Company of its obligations hereunder.
20. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns.
21. Entire Agreement;
Modification. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties hereto. This Agreement supersedes and replaces any
and all prior employment agreements between the Company and the Associate, all of which are hereby terminated and declared null
and void; provided, however, this Agreement shall not affect, in any manner, previously awarded restricted stock or stock options,
which awards shall remain in full force and effect in accordance with the terms of such previous awards.
22. Duration.
Notwithstanding the termination of the Employment Term and of the Associate’s employment by the Company, this Agreement shall
continue to bind the parties for so long as any obligations remain under this Agreement, and, in particular, the Associate shall
continue to be bound by the terms of Section 6.
23. Waiver.
No waiver by the Company of any breach by the Associate of this Agreement shall be construed to be a waiver as to succeeding breaches.
24. Enforceability.
The covenants and provisions contained herein are severable and are to be interpreted as such to the extent permitted by applicable
law. The parties understand, acknowledge and agree that should any provision of this Agreement be declared or determined by any
court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions
of this Agreement shall not be affected thereby, and that the Agreement will be amended to delete or modify, as necessary, any
invalid or unenforceable parts, terms or provisions to the extent necessary to allow for enforcement.
25. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same agreement.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF,
the parties have executed this Agreement on June 23, 2015, but this Agreement shall be effective as of the day and year first above
written.
| |
COMPANY: |
| |
|
| |
AMERICA’S CAR-MART, INC., an |
| |
Arkansas corporation |
| |
|
| |
By: ___________________________ |
| |
Name: _________________________ |
| |
Title: __________________________ |
| |
|
| |
ASSOCIATE: |
| |
|
| |
|
| |
______________________________ |
| |
Jeffrey A. Williams |
(Signature Page to
Employment Agreement of Jeffrey A. Williams)
APPENDIX A
Applicable to the
Bonus pursuant to Section 4(b)
of Employment Agreement
| |
Fiscal Year |
| |
2016 |
2017 |
2018 |
2019 |
2020 |
| Projected GAAP Earnings Per Share |
2015 Actual GAAP Earnings Per Share multiplied by [X.XX]* |
2016 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2017 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2018 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
2019 Projected GAAP Earnings Per Share multiplied by [X.XX]* |
| Bonus Potential: |
$40,000 |
$50,000 |
$60,000 |
$70,000 |
$80,000 |
If Parent Company’s actual GAAP Earnings
Per Share equals 95-99% of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage point),
the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 0.67.
If Parent Company’s actual GAAP Earnings
Per Share equals 100-104% of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage
point), the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 1.00.
If Parent Company’s actual GAAP Earnings
Per Share equals 105% or more of Parent Company’s projected GAAP Earnings Per Share (rounded to the nearest whole percentage
point), the Bonus for such fiscal year shall be the Bonus Potential for such fiscal year multiplied by 1.33.
*Filed under an application
for confidential treatment.
APPENDIX B
TERMINATION CERTIFICATION
The undersigned Associate
certifies that he/she does not possess and has not failed to return any property belonging to AMERICA’S CAR MART, INC., its
parent, subsidiaries, affiliates, successors or assigns (together, the “Company”) or its customers, including, but
not limited to, equipment, devices, records, correspondence, documents, files, reports, studies, manuals, compilations, drawings,
blueprints, sketches, videos, memoranda, computer software and programs, data or any other information, including Trade Secrets
and Confidential Information as set forth herein (whether originals, copies or extracts, stored in any medium), whether prepared
or developed by Associate or otherwise coming into Associate’s possession, whether maintained by Associate in the facilities
of the Company, at Associate’s home, or at any other location.
Associate further certifies
that he/she will comply with all the terms of his/her Non-Competition, Non-Solicitation, Non-Disclosure, and Confidentiality Agreement.
| Date: ____________________ |
___________________________________ |
| |
Associate |
B-1
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