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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 29, 2023
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.) |
1805 North 2nd Street, Suite 401, Rogers, Arkansas 72756
(Address of principal executive offices, including zip code)
(479) 464-9944
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, par value $0.01 per share |
CRMT |
NASDAQ Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule
405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use
the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act. ☐
Explanatory
Note
On September 5, 2023, America’s Car-Mart, Inc. (the “Company”)
filed a Current Report on Form 8-K (the “Original Report”) which disclosed, among other things, the promotion of Douglas W.
Campbell as Chief Executive Officer (“CEO”) of the Company and his appointment to serve as a director of the Company, each
effective October 1, 2023. The Original Report also disclosed that the Company’s then current CEO, Jeffrey A. Williams, would serve
as CEO Emeritus and an advisor to senior management effective October 1, 2023, for the remainder of fiscal year 2024, and that Mr. Williams
would continue to serve as a director of the Company. This Amendment No. 1 to Form 8-K (this “Amendment No. 1”), which amends
the Original Report, is being filed solely to report the Company’s entry into an amended and restated employment agreement with
Mr. Campbell in connection with his promotion to CEO and a retirement and transition agreement with Mr. Williams. Except for the additional
disclosures provided in this Amendment No. 1, the information presented in the Original Report remains unchanged.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers. |
Employment Agreement with Douglas W. Campbell
On December 19, 2023, the Company’s principal operating subsidiary,
America’s Car Mart, Inc., entered into an amended and restated employment agreement with the Company’s President and CEO,
Douglas W. Campbell, effective as of October 1, 2023 (the “Agreement”). Under the terms of the Agreement, Mr. Campbell will
receive an annual base salary of $800,000, or such higher annual salary approved by the Board of Directors. He will have 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, the Company’s nonqualified deferred compensation plan and any other employee benefit plans
and programs provided to similarly situated employees. The term of the Agreement is for two years from the effective date of the Agreement,
which will automatically renew for successive one-year periods on October 1 of each year until notice of termination is given by either
party.
Mr. Campbell will also be entitled under the Agreement to earn an annual
cash bonus pursuant to any incentive bonus plan in effect from time to time or as otherwise determined by the Compensation Committee of
the Company’s Board of Directors (the “Committee”). Consistent with the short-term incentive plan adopted by the Committee
for the Company’s named executive officers, the Committee has determined that Mr. Campbell will be eligible to earn a target bonus
payment for fiscal year ending April 30, 2024 of 125% of his base salary.
As soon as reasonably practicable, and no later than December 31, 2023,
Mr. Campbell will receive an award of restricted shares of common stock with a fair market value of $3.36 million, based on the closing
pricing of the Company’s common stock as of the trading day immediately preceding October 1, 2023, and a stock option award representing
shares of common stock with a target fair market value as of the grant date of $5.04 million. The restricted shares will vest in three
equal annual installments on September 30th in each of the next three years, and the stock options will vest in their entirety
on September 30, 2026, subject to certain performance conditions to be determined by the Committee. The Committee has determined that
the vesting of the stock options will be based equally on the Company’s four-quarter average return on equity during the period
from August 1, 2023 to July 31, 2026, and the 90-day average of the closing price of the Company’s common stock as reported on the
Nasdaq Stock Market during the period from October 1, 2023 to September 30, 2026, with the number of options vesting to be within a range
of 25% to 150% of the target award determined on a straight-line basis between the threshold and maximum amounts based on the Company’s
actual performance achieved for each measure, subject to a threshold level of performance being achieved.
Under the terms of the Agreement, Mr. Campbell will not be eligible to
receive any further long-term equity incentive awards until October 1, 2026. Thereafter, Mr. Campbell will be eligible for additional
long-term incentive awards under the Company’s Amended and Restated Stock Option Plan and its Amended and Restated Stock Incentive
Plan (and any successor plans) at the discretion of the Committee.
The Agreement contains an agreement not to compete and a covenant against
the solicitation of employees, other service providers and customers for the term of his employment and a period of one year thereafter,
provisions against the use and disclosure of trade secrets and other confidential information for the term of employment and an indefinite
period thereafter, and certain other customary covenants and restrictions.
If the Company terminates Mr. Campbell without cause at any time or declines
to renew the Agreement after the completion of the initial employment term or any annual term thereafter, or if Mr. Campbell terminates
his employment for good reason (as defined in the Agreement), Mr. Campbell will be entitled to receive, within 30 days after termination,
equal installment payments in accordance with the Company’s payroll policy, but at least monthly, in an aggregate amount equal to
24 months of his base salary then in effect. If Mr. Campbell’s employment is terminated due to disability, he will be entitled to
receive, within 60 days after termination, [a lump sum payment] equal to 12 months of his base salary then in effect, plus the pro rata
portion of any bonus earned, as determined by the Committee, through the date of termination based on the achievement of performance goals,
less any amounts payable to Mr. Campbell under the Company’s disability insurance policy. If Mr. Campbell’s employment is
terminated due to his death, his estate will be entitled to receive, within 60 days after his death or as soon thereafter as practicable,
his base salary then in effect through the end of the calendar month in which his death occurs, plus the pro rata portion of any bonus
earned, as determined by the Committee, through the date of his death based on the achievement of performance goals.
In addition, upon Mr. Campbell’s termination by the Company without
cause (including non-renewal of Agreement by the Company), his resignation for good reason, or termination of his employment due to his
death or disability, all of his unvested restricted stock and stock options granted on October 3, 2022, if any, will immediately vest
in full, any unvested equity awards subject to performance-based vesting granted to Mr. Campbell on or after October 1, 2023, will vest
in a pro rata amount based on his duration of employment to the extent the applicable performance conditions have been met on the date
of termination, and any unvested equity awards subject to time-based vesting granted to Mr. Campbell on or after October 1, 2023, that
are scheduled to vest less than 12 months after the date of termination will immediately vest in full. If Mr. Campbell’s employment
is terminated on or before October 1, 2025, by the Company without cause (including non-renewal of Agreement by the Company) or by his
resignation for good reason, all of the restricted shares granted to Mr. Campbell under the above-referenced grant to be made before December
31, 2023, will immediately vest in full.
If Mr. Campbell resigns (other than for good reason) or is terminated for
cause (as defined in the Agreement), the Company would have no obligation to pay base salary or benefits beyond the last day worked, and
any unvested shares of restricted stock or stock options would be forfeited.
The Agreement also contains change in control provisions similar to the
change in control provisions contained in the Company’s agreements with the Company’s other named executive officers. These
provisions entitle Mr. Campbell, upon the occurrence of certain events, to a cash payment and the immediate vesting of stock options and
restricted stock. If Mr. Campbell terminates his employment with the Company for good reason (as defined in the Agreement) or the Company
terminates his employment other than for cause, in each case within six months before or 24 months after a change in control (as defined
in the Agreement), the Company must pay Mr. Campbell a lump sum cash payment equal to 12 months of his base salary in effect immediately
prior to the double-trigger event date (as defined in the Agreement), plus the pro rata portion of any bonus earned, as determined by
the Committee, through such date, and all unvested restricted stock and stock options previously granted to Mr. Campbell will vest in
full without regard to the achievement of any applicable performance goals.
The foregoing description of the material terms of the Agreement is qualified
in its entirety by reference to the full text of the Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated
herein by reference.
Retirement Agreement with Jeffrey A. Williams
On December 21, 2023, the Company’s principal operating subsidiary
entered into a Retirement and Transition Agreement, effective as of October 1, 2023 (the “Retirement Agreement”), with the
Company’s former CEO, Jeffrey A. Williams. Under the terms of the Retirement Agreement, Mr. Williams is serving as CEO Emeritus
of the Company for the remainder of the fiscal year ending April 30, 2024 (the “Retirement Date”). As previously announced,
Mr. Williams will remain on the Company’s Board of Directors after the Retirement Date.
The principal terms of the Retirement Agreement provide that:
| • | Mr. Williams will serve as a consultant and adviser to senior management for a one-year period following
the Retirement Date for a monthly consulting fee of $20,000. |
| • | Mr. Williams’ existing stock options will continue to vest and remain exercisable to the extent
vested in accordance with the applicable stock option agreements and the Company’s Amended and Restated Stock Option Plan, subject
to his continuous service as a director or consultant of the Company. |
| • | Mr. Williams will receive any vested accrued benefits under the Company’s 401(k) and nonqualified
deferred compensation plans in accordance with the terms of those plans, and he will continue to receive health insurance coverage under
the Company’s employee and executive health insurance plans for two years following the Retirement Date as a former executive who
remains a director of the Company, subject to his continued service as a director. |
| • | Mr. Williams will not be eligible to receive any compensation as a non-employee director during his one-year
consulting period following the Retirement Date. Thereafter, Mr. Williams will be eligible to receive the annual cash retainer and such
equity and other compensation payable to non-employee directors as is determined from time to time by the Board of Directors, subject
to his continued service as a director. |
Mr. Williams will receive the foregoing payments and benefits, other
than the non-employee director fees, provided he executes and does not revoke a customary release of claims in favor of the Company. Mr.
Williams also remains subject to the non-competition, non-solicitation, and non-disclosure covenants described in his employment agreement
with the Company’s principal operating subsidiary dated as of May 1, 2020.
The foregoing summary of the terms and conditions of the Retirement Agreement
is qualified in its entirety by reference to the full text of the Retirement Agreement, a copy of which is attached hereto as Exhibit 10.2
and is incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
10.1 |
|
Amended and Restated Employment Agreement, dated December 19, 2023, between America’s Car Mart, Inc., an Arkansas corporation, and Douglas Campbell. |
|
|
|
10.2 |
|
Retirement and Transition Agreement, dated December 21, 2023, between America’s Car Mart, Inc., an Arkansas corporation, and Jeffrey A. Williams. |
|
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|
104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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. |
|
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|
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|
Date: December 26, 2023 |
|
/s/ Vickie D. Judy |
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Vickie D. Judy |
|
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Chief Financial Officer |
|
|
(Principal Financial Officer) |
Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the
“Agreement”) is entered into by and between AMERICA’S CAR MART, INC., an Arkansas corporation (the “Company”)
and DOUGLAS CAMPBELL (the “Executive”) (together, the “Parties”), on December 19, 2023 (the “Signing
Date”) to be effective as of October 1, 2023 (the “Effective Date”).
W I T N E S S E T H:
WHEREAS, the Company is engaged primarily in the business
of the retail sale and financing of used vehicles to consumers in the subprime market (the “Company Business”); and
WHEREAS, the Executive entered into an Employment
Agreement with the Company on September 6, 2022 with an effective date of October 3, 2022 (the “Original Agreement”);
and
WHEREAS, Executive was granted 20,000 restricted shares
of the stock of America’s Car-Mart, Inc., a Texas corporation (the “Parent Company”), the Company’s parent
company, pursuant to that certain Option Agreement, dated as of October 3, 2022, by and between Executive and the Parent Company (the
“Original Restricted Stock Award”); and
WHEREAS, the Executive was granted a non-qualified
stock option for Executive to purchase 75,000 shares of Parent Company stock pursuant to that certain Restricted Stock Agreement, dated
of October 3, 2022, by and between Executive and the Parent Company (the “Original Stock Option Award”); and
WHEREAS, the Company desires to continue the employment
of the Executive as a Senior Executive Officer, and the Executive desires to provide his services to the Company, upon the terms and
conditions hereinafter set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
and promises contained herein, and for other good and valuable consideration, the sufficiency of which is hereby agreed acknowledged,
the Parties hereto, each intending to be legally bound hereby, agree as follows:
1.
Employment. The Company shall employ the Executive as its President and Chief Executive Officer (“CEO”), effective
as of the Effective Date, and the Executive accepts such employment, effective as of the Effective Date, subject to the terms and conditions
set forth in this Agreement. As soon as may be practicable, the Executive shall be appointed as a member of the Board of Directors of
the Parent Company (the “Board”).
2.
Performance.
(a)
Duties. During the term of employment under this Agreement (the “Employment Term”), the Executive, in his role as
President and CEO, shall have such duties, obligations, authorities and responsibilities as are (i) commensurate with such title, and
(ii) as assigned to Executive by the Board from time to time that are reasonably consistent with the Executive’s position as CEO,
including but not limited to the duties, obligations, authorities and responsibilities set forth in Appendix A, which is attached
to and is a part of this Agreement.
The Executive further agrees to perform, for the consideration
set forth herein, and without additional compensation, such other services, duties, obligations, authorities and responsibilities not
inconsistent with his position as President and CEO of the Company in connection with any subsidiary or affiliate of the Company in which
the Company has an interest, including, without limitation, Colonial Auto Finance, Inc., an Arkansas corporation (“Colonial”)
and Parent Company, as the Board may from time to time reasonably specify. The Executive may be deemed an employee of, and may be paid
by the Company, Colonial, or the Parent Company, as reasonably determined by the Board or the Parent Board in connection with his services
set forth herein.
(b)
Duty of Care. The Executive covenants, warrants, and represents that he shall: (i) devote his best efforts and talents to the performance
of his employment obligations and duties for the Company; (ii) devote his full business time, attention, knowledge and skills to the
Company’s business (iii) exercise the highest degree of loyalty and the highest standards of conduct in the performance of his
duties; (iv) observe and conform to the Company’s bylaws and other rules, regulations, and written policies established or issued
by the Company; and (v) refrain from taking advantage, for himself or others, of any corporate opportunities of the Company, and refrain
from taking any actions or positions adverse to the business and interests of the Company.
Notwithstanding the foregoing, the Executive may engage in the
following activities, so long as they do not materially interfere with the performance of his duties hereunder, and do not constitute
a conflict of interest with, or conflict with the public positions taken by, the Company, Colonial, the Parent Company: (i) personal
investment activities not involving the Company, Colonial, the Parent Company, or any of its or their affiliates or related companies;
(ii) serve as an unpaid member of, or unpaid consultant to, the board of directors of non-profit entities; provided, that the Executive
obtains approval from the Board, which approval shall not be unreasonably withheld, conditioned or delayed; and (iii) engage in unpaid
charitable, civic or other volunteer activities, without compensation.
(c)
Place of Performance. The principal place of the Executive’s employment shall be at the Company’s corporate office, currently
located at 1805 N 2nd St, Rogers, AR 72756; provided that, the Executive may be required within reason to travel on Company
business during the Employment Term.
3.
Term.
(a)
Unless otherwise terminated in accordance with Sections 9, 10, 11, 12 or 13, the term of employment of the Executive under this Agreement
shall be two (2) years from the Effective Date (the “Initial Term”). The Initial Term shall be extended automatically
for additional one-year periods (each, a “Renewal Term”), on the same terms and conditions as set forth in this Agreement
(as may be modified by written agreement from time to time by the Parties), beginning on the second anniversary of the date hereof, unless
either party gives the other party written notice of such party’s decision not to renew the terms of this Agreement at least ninety
(90) days prior to the end of the Initial Term or any Renewal Term. The Initial Term, together with all Renewal Terms, are collectively
referred to as the “Employment Term”. Notwithstanding the foregoing, either party may terminate this Agreement at
any time prior to the expiration of the Employment Term under the terms and conditions set forth herein.
(b)
For clarity and the avoidance of doubt, and notwithstanding anything in Section 3(a) above that may be construed to the contrary, the
long-term incentive awards set forth in Section 4(c) below are not intended by the Parties to recur in each Renewal Term, if any; rather,
the long-term incentive awards, if any, awarded to the Executive in connection with a Renewal Term (on or after the third anniversary
of the Effective Date) will be awarded subject to the negotiation of the Parties and the discretion of the Compensation Committee and
will be informed by factors including but not limited to (i) the Executive’s and the Company’s respective performance during
the Initial Term or the immediately prior Renewal Term, as applicable, (ii) current market conditions at the time of such renewal and
(iii) incentive awards of other chief executive officers of public companies in similar industries at the time of such renewal.
4.
Compensation.
(a) Base
Salary and Benefits. The basic annual salary of the Executive for his employment services hereunder shall be $800,000 or such higher
annual salary, if any, as shall be approved in writing by the Board of Directors of the Parent Company from time to time, in its sole
discretion (the “Base Salary”), which shall be payable in accordance with the Company’s regular payroll policies.
Nothing contained herein shall affect or in any way limit the Executive’s rights as an Executive of the Company to participate
in any Employee Benefit Plans (as defined in Section 6(a) below) maintained by the Company from time to time, all of which shall be made
available to the Executive on the same bases as other Company employees, and compensation received by the Executive hereunder shall be
in addition to the foregoing benefits. In addition, nothing contained herein shall affect or in any way limit the Executive’s eligibility
to participate in any nonqualified deferred compensation plan of the Company or the Parent, if any.
(b) Annual
Bonus. In addition to the Base Salary and benefits described above, the Executive shall be eligible to receive an annual cash bonus (the
“Annual Bonus”), pursuant to any incentive bonus plan of the Company or the Parent Company which may be in effect
from time to time during the Employment Term, which will be determined by the Compensation and Human Capital Committee of the Parent
Company’s Board of Directors (the “Compensation Committee”) at its sole discretion. For the Company’s
fiscal year ending April 30, 2024, the Executive’s target Annual Bonus shall be 125% of his Base Salary. The Compensation Committee
shall set the criteria for such target Annual Bonus and shall review such criteria with Executive. For purposes of clarity and the avoidance
of doubt, the specified target Annual Bonus will be determined and approved each fiscal year by the Compensation Committee, and may be
increased, decreased or remain unchanged from year to year.
(c) Long-Term
Incentives. During the Employment Term, the Executive shall be eligible to participate in the Parent Company’s Amended and Restated
Stock Option Plan (the “Option Plan”) and the Parent Company’s Amended and Restated Stock Incentive Plan (the
“Incentive Plan”) (and any successor incentive plans thereto) to the extent that the Compensation Committee, in its
sole discretion, determines is appropriate. Notwithstanding the foregoing, prior to the third anniversary of the Effective Date, the
Executive shall not be eligible to receive any additional long-term incentive awards under the Option Plan or the Incentive Plan (or
any successor incentive plans thereto) other than awards already made to the Executive and the awards set forth in this Section 4(c).
As soon as reasonably practicable after the Signing Date and no later than December 31, 2023, the Parent Company will grant to the Executive
long-term incentive awards with a total target fair market value as of $8,400,000, consisting of the following:
(i) Restricted
shares of Parent Company Stock, pursuant to the Incentive Plan, having a fair market value of $3,360,000, which shares will vest in three
equal annual installments, with the first installment vesting on the day immediately prior to the first anniversary of the Effective
Date, the second installment vesting on the day immediately prior to the second anniversary of the Effective Date, and the third installment
vesting on the day immediately prior to the third anniversary of the Effective Date, in each case subject to the Executive’s continued
employment under this Agreement and subject to the conditions set forth in an applicable award agreement pursuant to Article VI of the
Incentive Plan. The number of restricted shares shall be determined based on the per share closing price of the Parent Company Stock
as reported on the trading day immediately preceding the Effective Date; and
(ii) A
non-qualified stock option to purchase shares of Parent Company Stock, pursuant to the Option Plan, having a target fair market value
of $5,040,000, which option will vest on the day immediately prior to the third anniversary of the Effective Date, subject to the Executive’s
continued employment under this Agreement and subject to the conditions set forth in an applicable award agreement pursuant to the Option
Plan, including without limitation the Company’s achievement of certain performance conditions to be determined by the Compensation
Committee.
5.
Expense Account and Vacations.
(a)
The Company agrees to reimburse the Executive for all expenses reasonably incurred by him on behalf of the Company during the Employment
Term, subject to, and in accordance with, the prevailing practices and written policies of the Company that the Compensation Committee
or the Company, as applicable, may establish from time to time.
(b)
During the Employment Term, the Executive will be entitled to that amount of paid vacation and paid sick leave on a basis that is required
by law and at least as favorable as that provided to other executive officers of the Company under the written policies of the Company,
as may be amended or modified from time to time. The Executive shall receive other paid time off in accordance with the Company's written
policies applicable to executive officers as such policies may exist from time to time.
6.
Employee Benefits.
a)
During the Employment Term, the Executive shall be entitled to participate in all employee benefit plans, practices, and programs maintained
by the Company, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis which is no less
favorable than is provided to other executive officers of the Company, to the extent consistent with applicable law and the terms of
the applicable Employee Benefit Plans. The Company reserves the right to amend or terminate any Employee Benefit Plans at any time in
its sole discretion, subject to the terms of such Employee Benefit Plans and applicable law.
b)
The Executive will be entitled to the indemnification provided to other executive officers and directors of the Company and the Parent
Company. In addition, the Company agrees to include Executive as a covered person on the Company’s directors’ and officers’
liability insurance policy and written policies covering any other executive officers and directors of the Company and/or the Parent
Board.
7.
Non-Competition, Non-Solicitation, Non-Disclosure, and Confidentiality Provisions. As used in Section 7 and Section 8 of this
Agreement, the term “Company” shall mean the Company and its subsidiaries and affiliates, including, without limitation,
Colonial and the Parent Company.
(a) Non-Solicitation:
Customers. During Executive’s employment and for one (1) year immediately following the cessation of Executive’s employment
with the Company for any reason, Executive 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), directly or indirectly solicit, contact (including but not limited
to email, regular mail, express mail, telephone, fax, instant message, or social media), attempt to contact, or meet with, any customer
of the Company for the purpose of offering, selling or providing any product or service competitive with the Company Business, as defined
herein, during the twelve (12) month period immediately preceding cessation of Executive’s employment with the Company for any
reason.
(b) Non-Solicitation:
Employees and other Service Providers. During Executive’s employment and for one (1) year immediately following the cessation of
Executive’s employment with the Company for any reason, Executive will not, without the prior written approval of the Company,
directly or indirectly, either on behalf of the Executive or any other person or entity, solicit or in any manner encourage employees,
independent contractors, service providers, consultants, vendors and suppliers of the Company, to leave the employ or service of or to
the Company. With respect to the aforementioned independent contractors, service providers, vendors and suppliers of the Company, after
termination of the Executive’s employment for any reason, the provisions of this Section 7(b) shall only apply to such current
or former independent contractors, service providers, vendors and suppliers the Company who or which were doing business with the Company
at any time within twelve (12) months prior to the date of the Executive’s termination.
(c) Non-Disclosure.
(i)
TRADE SECRETS. Executive acknowledges that the Company owns and uses trade secrets as defined under applicable law or otherwise as considered
to be such by the Company. “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, clients, service providers, vendors, suppliers,
business providers and/or business relationships, which is or are not commonly known by or available to the public or any third party
enterprise and which information or material: (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. Executive further acknowledges that in the
course of Executive’s employment with the Company and in order to carry out Executive’s duties thereunder, Executive has
or will become privy to the Trade Secrets of the Company. Accordingly, Executive shall not, without the prior written consent of the
Company, disclose, divulge, publish to others, or use for any purpose, except as necessary to perform Executive’s duties while
employed by the Company, any Trade Secret of the Company for so long as such information shall remain a Trade Secret under this Agreement
or by applicable law. Executive further agrees to use his best efforts and utmost diligence to guard and protect the Company’s
Trade Secrets from disclosure to any competitor, customer, vendor 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 and except as otherwise required in the
performance of Executive’s duties.
(ii) CONFIDENTIAL
INFORMATION. Executive acknowledges that in order to conduct its business, the Company owns and uses written and unwritten confidential
information. “Confidential Information” means data, information and/or material relating to the business of the Company
(which may or may not rise to the level of a Trade Secret under applicable law, and regardless of whether marked, designated or identified
as “Confidential”) which has been or may be disclosed to Executive by any of the aforementioned companies during the course
of Executive’s employment with the Company or of which Executive became or may become aware as a consequence of or through Executive’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, information or material that has been voluntarily disclosed to the public by the Company (except where such
public disclosure has been made by Executive without authorization) or that otherwise is in or enters the public domain through no act
or omission of the Executive or person(s) acting on the Executive’s behalf. Executive further acknowledges that in the course of
his employment with the Company and in order to carry out his duties thereunder, Executive has or will become privy to Confidential Information
of the Company. Accordingly, Executive agrees that while employed by the Company, and following the cessation of Executive’s employment
with the Company for any reason, Executive will not, without the prior written consent of the Company, disclose, divulge, publish to
others or use for any purpose or in any manner whatsoever, any Confidential Information of the Company, except as required to perform
his duties and responsibilities as an Executive for the Company. Executive understands and agrees to treat whatever information the Company
wants to protect from disclosure as genuinely “confidential”, e.g., 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.
(iii) NOTICE
OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive 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, consultant,
independent contractor, vendor or supplier lists; information provided to the Company by its customers or clients or prospective customers
or clients, or its vendor or suppliers; 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) [DELIBERATELY
OMITTED.]
(v) Notice
of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”).
Notwithstanding any other provision of this Agreement:
(A) The
Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret
that:
(1) is
made (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (b) solely
for the purpose of reporting or investigating a suspected violation of law; or
(2) is
made in a complaint or other document filed under seal in a lawsuit or other proceeding.
(B) If
the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the
Company’s trade secrets to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive:
(1) files
any document containing trade secrets under seal; and
(2) does
not disclose trade secrets, except pursuant to court order.
(vi) Permitted Disclosures. Nothing herein
shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant
to the valid order of a court of competent jurisdiction or an authorized government agency; provided, that the disclosure does not exceed
the extent of disclosure required by such law, regulation, or order. The Executive shall promptly provide written notice of any such
order to the Board.
(vii) Permitted Communications. Nothing herein prohibits or restricts
the Executive (or the Executive's attorney) from initiating communications directly with, responding to an inquiry from, or providing
testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory
organization, or any other federal or state regulatory authority regarding a possible securities law violation.
(d) Non-Competition.
Executive acknowledges that the Company is engaged in the Company Business as defined herein. For the purposes of this Agreement, “Territory”
means Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Oklahoma, Tennessee, Texas, and such additional states in which the
Company Business is primarily concentrated and focused upon. Executive’s duties and responsibilities are not limited to any particular
area within the Territory but will be within and throughout the entire Territory, and rendered in connection with Company Business. Executive
further acknowledges and agrees 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, Executive’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 cessation of Executive’s employment with the Company
for any reason, Executive shall not, for himself or on behalf of any other company, person, firm, partnership, association, corporation,
business organization, entity or enterprise, perform duties which are substantially similar to the duties performed by Executive on behalf
of the Company within the Territory:
| i. | for any business engaged in the Company Business;
or |
| ii. | any other business of the type and character
engaged in or competitive with any business conducted by the Company at any time during the
Executive’s employment by the Company from the Effective Date through the end of the
Executive’s employment; or |
| iii. | any type of business actively planned, during
the Employment Term, to be conducted by the Company as reasonably evidenced by documentation
such as the Board’s resolution of such plan at a meeting of the Board. |
Notwithstanding the foregoing, nothing in this Agreement shall prohibit
the Executive from being a passive owner of not more than two percent (2%) of the equity securities of a publicly traded corporation
engaged in a business that is in competition with the Company or any of its subsidiaries or affiliates, so long as the Executive
has no active participation in the business of such corporation. In addition, the provisions of this Section 7(d) shall
not be violated by the Executive commencing employment with a subsidiary, division or unit of any entity that is in a Company Business
so long as the Executive and such subsidiary, division or unit does not engage in such Company Business.
(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 Executive, relating to
the Company Business (including but not limited to the business of the Company), 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
Executive. All Work Product shall be considered work made for hire by Executive and owned by the Company. If any of the Work Product
may not, by operation of law, be considered work made for hire by Executive for the Company, without the need or requirement of any further
documentation or consideration, or if ownership of all rights, title, and interest of the intellectual property rights therein shall
not otherwise vest exclusively in the Company, Executive 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, trademarks, registrations and any other protection available in the Work Product. Executive
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 Executive or otherwise coming into Executive’s possession during his employment
with the Company, whether maintained by Executive in the facilities of the Company, at Executive’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 by the Executive, with no
copies or reproductions retained by Executive, in the event of Executive’s termination for any reason, or at any other time or
times the Company may request. Upon termination of employment for any reason, Executive agrees to sign and deliver the “Termination
Certification” attached hereto as Appendix B.
(g) Reasonable
Restrictions. Executive acknowledges and agrees 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. Executive also acknowledges and agrees that if his employment with the Company ends for any
reason, Executive will be able to earn a livelihood without violating the restrictions contained in this Agreement and that Executive’s
ability to earn a livelihood without violating said restrictions is an important reason in Executive choosing to sign this Agreement.
Further, the existence of any claim or cause of action of the Executive against the Company, whether or not predicated on the terms of
this Agreement, shall not constitute a defense to the enforcement of the Executive’s obligations under this Agreement.
(h) Separate
Covenants. The provisions of this Section 7 shall be deemed to consist of a series of separate covenants. Should a determination be made
by a court of competent jurisdiction that the character, duration, or geographical scope of any provision or provisions of this Agreement
is or are unreasonable in light of the circumstances as they then exist, then it is the intention and the agreement of the Company and
Executive that this Agreement shall be construed by the court in such a manner as to impose only those restrictions on the conduct of
Executive that are reasonable in light of the circumstances as they then exist and as are appropriate to assure the Company of the intended
benefit of this Agreement, and such restrictions shall be interpreted, modified, and/or rewritten to include as much of the duration,
scope, geographic area, or otherwise as will render such restrictions valid and enforceable under Arkansas law. Further, any period of
restriction in this Section 7 shall be tolled and extended during (and shall be deemed automatically extended by) any period in which
the Executive is in violation of this Section 7.
(i) Cooperation.
Following the effective date of Executive’s termination for any reason, upon reasonable request by the Company, the Executive shall
cooperate with the Company with respect to any Company litigation or other dispute in which the Executive was involved or had knowledge
during his employment with the Company. The Company shall reimburse the Executive for all reasonable out-of-pocket costs, such as reasonable
travel, hotel and meal expenses, incurred by the Executive in providing any cooperation pursuant to this Section 7(i). The Company shall
make its attorney available to advise the Executive or if, in the reasonable opinion of the Company’s attorney a conflict arises
which would prevent the Company’s attorney from advising the Executive, the Company shall reimburse the Executive for his reasonable
legal fees incurred in providing any cooperation at the Company’s request pursuant to this Section, provided that the Executive
and the Company are not opposing parties in such litigation or other dispute.
(j) Non-Disparagement.
The Executive shall not directly or indirectly defame, disparage, or publicly criticize the services, business, integrity, veracity or
reputation of the Company, Colonial and/or the Parent Company, to any third parties, including but not limited to, their respective officers,
directors, shareholders or employees in any forum or through any medium of communication (including contemporary communication channels
such as use of social media platforms). Nothing in this Agreement will restrict or impede the Executive from exercising protected rights
to the extent that such rights cannot be waived by agreement, nor preclude Executive or the Company from supplying truthful information
to any governmental authority or in response to any lawful subpoena or other legal process.
The Company shall, upon Executive’s
request, direct its senior executive officers and directors to not, directly or indirectly, defame, disparage, or publicly criticize
the services, business, integrity, veracity or reputation of the Executive to any third parties. Nothing in this Agreement will restrict
or impede the officers and directors, who have received such aforementioned direction, from exercising their protected rights to the
extent that such rights cannot be waived by agreement, nor preclude them from supplying truthful information to any governmental authority
or in response to any lawful subpoena or other legal process.
8.
Remedies. The Executive expressly agrees that the remedy at law for any breach of the provisions of Section 7 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 Executive’s obligations under
these provisions without the necessity of proving the actual damage to the Company or the inadequacy of a legal remedy. All of the Company’s
remedies for breach of this Agreement shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedies.
9.
Termination upon Expiration of Employment Term; Termination for Cause; Termination for Good Reason.
(a)
Termination upon Expiration of Employment Term. Unless otherwise earlier terminated in accordance with Sections 9(b) (Cause), 9(c) (Good
Reason), 10 (Without Cause), 11 (Death), 12 (Disability), or 13 (Change in Control) below, the Employment Term will expire at the end
of the Initial Term or a Renewal Term, as applicable, pursuant to a written notice of non-renewal timely given by either party within
the deadline set forth in Section 3 above.
If the Company provides a written notice of
non-renewal pursuant to Section 3 above, the Executive shall be entitled to Termination Benefits (as defined in Section 10) upon expiration
of such Employment Term. For clarity and the avoidance of doubt, the Company has the right to instruct the Executive that he not work
actively for the Company during some or all of the 90 day non-renewal notice period set forth in Section 3 above, and any such instruction
by the Company and related non-performance by the Executive will not be deemed a breach of this Agreement by either party nor grounds
for Good Reason termination by the Executive.
(b)
Termination for Cause. The Employment Term may be terminated by the Company for cause (“Cause”) by written notice
to the Executive. For purposes of this Agreement, “ Cause ” shall mean:
| (i) | the Executive’s willful and repeated failure to perform Executive’s
duties or to comply with any valid and legal directive of the Board, which, if curable, has
not been cured by the Executive within fifteen (15) business days after the Executive’s
receipt of notice to the Executive specifying the nature of such failures; |
| (ii) | the Executive’s willfully engaging in dishonesty, illegal conduct,
or other bad faith conduct, which is, in each case, materially injurious to the Company,
monetarily or otherwise; |
| (iii) | the Executive’s indictment for a crime of moral turpitude
or a felony involving fraud, breach of trust, embezzlement, or misappropriation; |
| (iv) | a material breach by the Executive of the Executive’s duties
and obligations under this Agreement or violation in any material respect of the Company's
written policies or codes of conduct that are generally applicable to the officers of the
Company, including, but not limited to, policies related to discrimination or harassment,
performance of illegal or unethical activities, or ethical misconduct, which, if curable,
has not been cured by the Executive within fifteen (15) business days after the Executive’s
receipt of notice to the Executive specifying the nature of such breach or violations; |
| (v) | The Executive’s breach of his fiduciary duty to the Company;
or |
| (vi) | the Executive’s engagement in misconduct that brings or is
reasonably likely to bring the Company into public disgrace, embarrassment, or disrepute,
which is materially injurious to the Company, monetarily or otherwise, which, if curable,
has not been cured by the Executive within fifteen (15) business days after the Executive’s
receipt of notice to the Executive specifying the nature of such conduct. |
Upon termination of the Employment Term for Cause under subsection (b) above, all
of the Executive’s unvested shares of restricted stock awarded under the Incentive Plan and unvested stock options awarded under
the Option Plan will be forfeited and the Executive will have no entitlement to severance payments.
For purposes of this provision, no act or failure to act on
the part of the Executive shall be considered "willful" unless Executive failed to act or not act (i) in good faith and (ii)
in a manner the Executive reasonably believe to be in or not opposed to the best interests of the Company. Any act, or failure to act,
based on authority given pursuant to a resolution duly adopted by the Board or on the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company.
The Company may place the Executive on paid leave for up to
sixty (60) days while it is determining whether there is a basis to terminate the Executive's employment for Cause. Any such action by
the Company by itself will not constitute Good Reason.
(c)
Termination for Good Reason. The Employment Term may be terminated by the Executive for Good Reason (as defined below) upon notice to
the Company as provided herein. Such notice must be given by the Executive to the Company by no later than thirty (30) days after Executive’s
initial knowledge by Executive of the existence of said Good Reason, and the notice must state the grounds for such termination for Good
Reason. Upon the delivery of such notice, the Company shall have thirty (30) days to cure such Good Reason condition. If the Company
fails to cure such condition, then the Executive’s employment shall terminate on the thirty first day after the delivery to the
Company of Executive’s notice of termination for Good Reason.
For purposes of this Agreement, “Good
Reason” means the occurrence (without the Executive’s prior written consent) of any one of the following acts by
the Company, or failures to act by the Company to act:
| (i) | the Executive
no longer has the title of President and CEO of the Company; |
| (ii) | the Executive
is no longer elected to the Board; |
| (iii) | a material
diminution in the Executive’s authority, duties or responsibilities as President and
CEO of the Company (except, and only to the extent of, a diminution in connection with a
Disability, death, retirement or reasonable accommodation of a disability); |
| (iv) | a material
diminution in the Executive’s Base Salary; |
| (v) | unless such
reduction applies in a substantially equal percentage to all or substantially all senior
officers of the Company, a reduction or discontinuation of any compensation plan in which
the Executive participates which is material to the Executive’s total compensation,
including but not limited to the Company’s equity-based long term incentive plans and
annual incentive plans, unless a financially comparable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or an adverse change
in the Executive’s participation therein (or in such substitute or alternative plan)
either in terms of the amount or timing of payment of benefits provided or the level of the
Executive’s participation relative to other participants); |
| (vi) | a material
reduction in the Executive’s duties or responsibilities that is inconsistent with the
Executive’s role as the President and CEO of a public company; provided that a material
reduction in the Executive’s duties and responsibilities shall be deemed to occur where
the Executive does not report to the board of directors of the ultimate parent of the surviving
entity following a Change in Control; |
| (vii) | the required
relocation of the Executive’s current principal place of employment by more than fifty
(50) miles; |
| (viii) | the failure
to grant to Executive the equity award agreements as provided in this Agreement; or |
| (ix) | any other
action or inaction that constitutes a material breach by the Company of the terms of this
Agreement. |
If the Company successfully cures the act
or failure to act that remedies the Good Reason condition predicating the Executive’s notice to the Company pursuant to subsection
(c) above within the thirty (30) day timeframe after the Executive delivery of such notice, then the Employment Term shall continue and
the Executive shall not have the right to terminate for that specific Good Reason condition that previously existed; provided, however
the right of the Executive hereunder to terminate the Employment Term for Good Reason shall continue for the remainder of the Employment
Term.
For clarity and the avoidance of doubt, and
notwithstanding anything in this Agreement that may be construed to the contrary, in the following circumstances the temporary replacement
or change in duties alone shall not be deemed grounds for the Executive to resign with Good Reason as a result thereof: the Company temporarily
replaces the Executive or transfers some or all of the Executive's duties or responsibilities to another individual (i) as a reasonable
accommodation of a disability or (ii) for a condition which is, or is reasonably expected to become, a Disability (as defined below)
or (iii) termination of Executive’s employment is being sought pursuant to Section 12 hereof.
If the Executive terminates his employment under
this Section 9(c) for Good Reason, the Executive shall be entitled to the Termination Benefits described in Section 10 hereof.
10.
Termination Without Cause.
(a)
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 Sections 9(b) (Cause), 11 (Death), 12 (Disability) and 13 (Change in Control), then, under such circumstances
and subject to the Executive’s continued compliance with the terms of this Agreement and the Executive’s execution, delivery
and non-revocation of a release as discussed in Section 14 below, the Executive shall be entitled to receive the following (collectively,
the “Termination Benefits”):
(i)
equal installment payments payable in accordance with the Company’s normal payroll practices, but no less frequently than monthly,
which are in the aggregate equal up to twenty-four (24) months (the “Severance Period”) of the Executive’s Base
Salary based on the annual salary amount the year in which the Termination Date occurs, which payments shall begin within thirty (30)
days following the Termination Date;
(ii)
all outstanding and unvested stock options granted to Executive under the Original Stock Option Award shall immediately vest in full
as of the date of termination;
(iii)
all outstanding and unvested shares granted to Executive under the Original Restricted Stock Award shall immediately vest in full as
of the date of termination;
(iv)
any outstanding and unvested performance-vesting equity awards granted to Executive on or after the Effective Date (including the stock
options granted pursuant to Section 4(c)(ii) hereof) shall be subject to pro rata vesting based on Executive’s duration of employment
with the Company in relation to each equity award and, on that basis, become fully vested to the extent that the terms and performance
conditions applicable to such award have been met on the date of termination of employment;
(v)
any outstanding and unvested time-vesting equity awards granted to Executive on or after the Effective Date (including the restricted
shares granted pursuant to Section 4(c)(i) hereof) which are scheduled to vest less than twelve (12) months following the date of termination
of employment shall vest in full on the date of termination; provided, that the restricted shares granted pursuant to Section 4(c)(i)
shall immediately vest in full if the Executives employment is terminated pursuant to Sections 9(a), 9(c) or 10(a) on or prior to the
second anniversary of the Effective Date; and
(vi)
insurance continuation through Company’s health insurance policies as available under COBRA, under the same employee contribution
terms as when Executive was an active employee with the Company, or as otherwise required for all personnel under Company policy, for
a period of time of the same duration as the Severance Period set forth in Section 10(a)(i) above. For purposes of clarity and the avoidance
of confusion, the Company shall contribute to Executive’s COBRA in the same proportion as it contributes to all personnel, and
Executive will be required to contribute his payments in the manner as required by Company’s group health insurance policies and
by law.
11.
Death of the Executive. If the Executive dies during the Employment Term, the Employment Term shall terminate, and within
sixty (60) days after death, or as soon thereafter as administratively practicable, the Company will pay to the Executive’s estate
(i) the Executive’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 Annual Bonus, if any, as determined by the Compensation Committee, through the date of death, based
on the achievement of performance goals. In addition, all outstanding and unvested stock options previously granted to the Executive by
the Parent Company shall vest as described in Section 10, and all outstanding and unvested shares of restricted stock (if any) previously
granted to the Executive by the Parent Company shall vest as described in Section 10.
12.
Termination Following Disability. For purposes of this Agreement, "Disabled” or “Disability"
shall mean (i) Executive’s approval for long-term disability benefits under the Company’s long-term disability benefits plan,
or (ii) if the Executive either participates in no such plan or does not apply for Long Term Disability coverage under such plan, the
Executive's inability, due to physical or mental incapacity, to perform the essential functions of the Executive's job, with reasonable
accommodation that can be provided without undue hardship, for an aggregate of one hundred eighty (180) days out of any three hundred
sixty-five (365) day period. Any dispute as to whether the Executive is Disabled, and the date on which such incapacity commenced, shall
be resolved by the parties with the assistance of a qualified independent physician who is selected and reasonably approved by the Company
and the Executive, and who shall provide a written determination of whether it is highly improbable that Executive will be able to resume
the essential functions of his duties in the relevant period. The Board may rely on such determination in concluding that the Executive
is Disabled. If the Executive and the Company cannot agree on the selection of a qualified independent physician, each shall appoint
a qualified independent physician and those two physicians shall select a third who shall make such determination.
If the Executive becomes Disabled during the Employment Term
as provided above, the Company may terminate the Employment Term, in which event (i) the Company will pay to the Executive,
commencing within sixty (60) days after termination, an amount equal to twelve (12) months of the Executive’s Base
Salary then in effect hereunder plus the pro rata portion of the Annual Bonus, if any, as determined by the Compensation Committee,
through the date of disability, based on the achievement of performance goals, (ii) all outstanding and unvested stock options previously
granted to the Executive by the Parent Company shall vest as described in Section 10, and (iii) all outstanding and unvested shares of
restricted stock (if any) previously granted to the Executive by the Parent Company shall vest as described in Section 10. Disability
insurance payments, if any, made to the Executive under the Company’s disability insurance policy, will be deducted from the amounts
payable to the Executive hereunder. Notwithstanding any other provision contained herein, all payments made in connection with the Executive's
Disability shall be provided in a manner which is consistent with federal and state law.
13.
Change in Control of the Parent Company
(a) Notwithstanding
any other provision contained herein, if the Executive’s employment is terminated by the Executive for Good Reason (as defined
in Section 9(c)) or by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other than for Cause
(including, without limitation, written notice by the Company of its intent to terminate the Agreement upon expiration of the Employment
Term pursuant to Section 3 hereof), in each case within six (6) months prior to or twenty-four (24) months following a Change in Control
(as defined in Section 13(b) herein) of the Parent Company, then (i) the Company shall pay to the Executive within sixty (60) days after
the Double-Trigger Event Date (as defined below in this Section 13(a)) a lump sum cash payment equal to twelve (12) months of the
Executive’s Base Salary in effect immediately prior to the Double-Trigger Event Date, plus the pro rata portion of the target discretionary
Annual Bonus earned, if any, as determined by the Compensation Committee, through the Double-Trigger Event Date; and (ii) all outstanding
and unvested equity awards previously granted to the Executive by the Parent Company shall immediately vest in full as of the Double-Trigger
Event Date, without regard to the achievement of any applicable performance conditions (but still subject to the requirement of an executed
release by the Executive as set forth in Section 14 below) (collectively, (i) and (ii) are referred to as the “Change in Control
Payments”).
If the termination of the Executive’s
employment, as contemplated by this Section 13, occurs prior to the Change in Control, then the Executive shall be treated for purposes
of this Section 13 as being employed on the date the Change in Control becomes effective and the Executive’s Base Salary in effect
immediately prior to such termination shall be deemed in effect, for purposes of this Section 13, immediately prior to the Change in
Control. For purposes of this Section 13, the later of (i) the effective date of the Change in Control and (ii) the date Executive’s
employment is terminated as contemplated in this Section 13(a) shall be referred to as the “Double-Trigger Event Date”.
(b) For
purposes of this Section 13, “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 (including any Treasury regulations thereunder, the “Code”)) (a “Person”) of ownership
of stock of the Parent Company that, together with stock held by such Person, constitutes more than fifty percent (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 fifty
percent (50%) of the total fair market value or 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 thirty-five percent (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 shall be deemed
to have occurred in any transaction in which either the Parent Company or the other entity 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 own more than fifty percent (50%) of the total fair market value or total voting
power of the stock of 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 of the Parent Company that have a total gross fair market value equal to or more than
forty percent (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 Section 409A of the Code.
The definition of Change in Control in this
Subsection 13(b), and all other terms and provisions of this Agreement, shall be interpreted at all times in such a manner as to comply
with Section 409A of the Code, meaning that no additional income tax is imposed on the Executive pursuant to Section 409A(1)(a) of the
Code.
(c) The
Change in Control Payments shall be in addition to any other rights and benefits for which the Executive is eligible, either by way of
contract or with respect to rights and benefits generally available to other executive officers or employees of the Company, except that
(i) the Executive shall not be entitled to any additional payments or benefits under Section 9 or Section 10 hereof, and (ii) to the
extent the Executive has received any payments or benefits under Section 9 or Section 10 hereof prior to the Double Trigger Event, the
Executive shall be entitled only to such Change in Control Payments as are not duplicative of the payments and benefits received under
Section 9 or Section 10.
14.
Release. Notwithstanding anything in this Agreement that may be construed to the contrary, the Executive shall not receive any
of the payments or accelerated vesting described in Sections 9, 10, and 13 above unless, within sixty (60) days following the expiration
or termination of the Employment Term or the Double Trigger Event Date, as applicable, the Executive delivers to the Company an executed
release, which shall be substantially in the form attached hereto as Appendix C (with such changes or additions as needed under
then applicable law to give effect to its intent and purpose) (the “Release”), and does not exercise his revocation
right within the revocation period set forth in such Release. None of the aforementioned payments shall be paid until the Release has
been signed and becomes effective, and any such payments that would otherwise be payable during such sixty-day period prior to the date
the Release becomes effective shall be accumulated and paid to the Executive on the first payroll date following the date the Release
becomes effective, without interest; provided, however, that if such sixty-day period begins in one calendar year and ends in a second
calendar year, the payments shall be accumulated, without interest, and paid to the Executive on the first payroll date during the second
calendar year following the date the Release becomes effective, as described above.
15.
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 Section 409A of the Code, and references to termination of “Employment Term,” as used in this Agreement, are understood
to refer to “Termination of Employment.”
16.
Specified Employee Delay. If the Executive is a “specified employee” within the meaning of Section 409A of the Code,
any benefits or payments (including installments and insurance premiums and contributions) which (a) constitute a “deferral of
compensation” under Section 409A of the Code, (b) become payable as a result of the Executive’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 Section 409A of the Code) after termination of employment shall be delayed and all such delayed payments (or delayed installments,
premiums or contributions) shall be paid to the Executive 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 Executive 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 Section shall not apply to payments made
as a result of a termination of employment that is the result of the Executive’s death.
17.
[DELIBERATELY OMITTED].
18.
Notices. All notices, demands, requests and releases 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, with a signed receipt; (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, with a signed receipt; or (d) deposited into the custody of a nationally
recognized overnight express delivery service such as FedEx Corporation, DHL, or United Parcel Service, Inc., addressed to such party
at the address specified below; and, with a copy sent by email to the notice Parties set forth immediately below. 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 subsequently changed by similar notice in writing given by the particular person whose address is to be changed):
If to the Executive, to:
Mr. Douglas Campbell, at the last known address in the
Company’s personnel records, with a copy to his email address: Dougnosser@hotmail.com
If to the Company, to:
America’s Car Mart, Inc., Attention:
Secretary
1805 N 2nd St, Suite 401
Rogers, Arkansas 72756
Fax #479-273-7556
- with a copy to brett.papasan@car-mart.com
- and a copy to colegal@car-mart.com
- and a copy to Attention: Legal Department
America’s Car Mart, Inc.
1805 N 2nd St, Suite 401
Rogers, Arkansas 72756
Fax #479-271-0796
Any party hereto may designate a different address by
written notice given to the other Parties.
19.
Governing Law. This agreement shall be construed in accordance with and governed by the laws of the State of Arkansas, without
reference to principles of conflict of laws.
20.
Mandatory Arbitration.
(a)
Any disagreement between the Executive and the Company concerning anything covered by this Agreement or concerning other terms or conditions
of the Executive’s employment or the termination of the Executive’s employment will be resolved by final and binding arbitration
pursuant to the below, except for claims as to which then-applicable law prohibits mandatory arbitration. The decision of the arbitrator
will be final and binding on both the Executive and the Company and may be enforced in a court of appropriate jurisdiction.
(b)
Except as provided in Section 8 or Section 20(a) above, if any legally actionable dispute arises under this Agreement or otherwise which
cannot be resolved by mutual discussion or voluntary mediation between the Parties, then the Company and Executive each agree to resolve
that dispute by binding arbitration before a single arbitrator experienced in employment law. Any arbitration hereunder shall be conducted
in accordance with the JAMS Mediation, Arbitration and ADR Services (“JAMS”) Employment Arbitration Rules and Procedures
in effect at the time of the arbitration (the “JAMS Rules”) and the law applicable to the claim(s) asserted therein. The
Parties shall have fifteen (15) calendar days after JAMS’s commencement of administration to agree on the selection of an arbitrator
from the JAMS roster. If the Parties are unable to agree on an arbitrator in such time, JAMS will appoint an arbitrator. The Parties
agree that this agreement to arbitrate covers claims that the Company may have against Executive, or that Executive may have against
the Company and/or its related entities and/or employees, arising out of or relating to this Agreement, including but not limited to
any aspect of Executive's compensation, employment, or termination, The Parties further agree that arbitration as provided for in this
Section 20 is the exclusive and binding remedy for any such dispute and will be used instead of any court action, and the Parties hereby
expressly waive any rights to litigate claims covered by this agreement to arbitrate in a court or other venue, except for (i) the claims
excepted under Section 20(a); (ii) a request by any party for temporary, preliminary or permanent injunctive relief pending arbitration
in accordance with applicable law; (iii) breaches by Executive of Executive's obligations under Section 7 hereof; or (iv) an administrative
claim with an administrative agency. The Parties agree that the arbitrator shall have the authority to and shall determine all gateway
issues related to any dispute submitted to arbitration hereunder, including but not limited to the jurisdiction of the arbitrator, the
arbitrability of any dispute (including the scope, validity, or enforceability of this agreement to arbitrate), and the proper or permissible
parties to any such arbitration. Discovery must be allowed and conducted pursuant to the then applicable
JAMS Rules, provided that the parties will be entitled to discovery sufficient to adequately arbitrate their claims and defenses (such
as having more than one deposition per party). The arbitrator is authorized to rule on discovery motions brought under the applicable
discovery rules. The Parties further agree that the arbitrator shall be empowered to award damages and/or equitable relief, as
appropriate. Any arbitration provided for herein shall be conducted in or around Rogers, Arkansas, unless otherwise mutually agreed.
The arbitrator must issue a written arbitration decision revealing the essential findings and conclusions
upon which the decision and/or award is based. The Company shall pay the cost of any arbitration brought pursuant to this
paragraph, excluding, however, the costs of Executive's representation in the arbitration (including but not limited to the fees and
costs of Executive's attorneys, advisors, experts, and other service providers), unless such cost is awarded in accordance with law or
otherwise awarded by the arbitrator. Except as otherwise provided above, the arbitrator may award legal fees to the prevailing party
in the arbitrator's sole discretion; provided that, where the prevailing party is the Company, the percentage of fees so awarded shall
not exceed 1% of the net worth of Executive. Judgment upon any resulting arbitration award may be entered in any federal or state court
of competent jurisdiction. Neither a party nor the arbitrator may disclose the existence, content, or outcome of any arbitration hereunder
without the prior written consent of all Parties to the arbitration, except as may be required by law, including for purposes of entering
judgment upon or enforcing the arbitrator's award.
21.
Compliance with Section 409A. The payments due under this Agreement are intended to comply with Section 409A of the 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 Section 409A or an applicable exemption. Any payments under this Agreement
that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral
shall be excluded from Section 409A to the maximum extent possible. To the extent 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 Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits
provided under this Agreement comply with 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 Executive on account of non-compliance with Section 409A. To the extent
required by 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 Executive 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.
22.
Section 280G.
(a) In the
event that the total amount of payments to be received by the Executive, 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 22(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
Executive 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 Executive 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 22; 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 22 shall provide its calculations, together with detailed supporting documentation,
to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a payment contingent
on a Change in Control is triggered (if requested at that time by Executive or the Company) or such other time as requested by the Executive
or the Company. If the Accounting Firm determines that no Excise Tax is payable with respect to such payments, it shall furnish
the Executive and the Company with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such
payments. If a reduction in payments or benefits constituting “parachute payments” (as defined in Section 280G(b)(2)
of the Code) is required by Section 22(a), the reduction shall occur in the following order unless the Executive 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 Section 409A of the Code):
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 Executive’s stock awards unless the Executive elects in writing a different order for cancellation.
23.
Assignability. The Executive 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.
24.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Executive, his heirs, beneficiaries and legal
representatives and the Company, its parent, subsidiaries, affiliates, successors and assigns.
25.
Withholding. The Company may withhold from any amounts payable under this Agreement such federal, state, local or foreign taxes
as shall be required to be withheld pursuant to any applicable law or regulation.
26.
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 Executive, 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.
27.
Duration. Notwithstanding the termination of the Employment Term and of the Executive’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 Executive
and the Company shall continue to be bound by the terms of Section 7.
28.
Waiver. No waiver by the Company of any breach by the Executive of this Agreement shall be construed to be a waiver as to succeeding
breaches.
29.
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 give effect to the original intent of the Parties as closely as
possible and to allow for enforcement.
30.
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 to be effective as of the Effective Date.
(Signature Page to Employment Agreement of Douglas Campbell)
APPENDIX A
Expected duties to be performed by the Executive
personally, or through subordinate managers and personnel, include but are not limited to the following:
| • | Manages
the day-to-day operations of the Company, subject to the oversight powers and responsibilities of the Company Board of Directors. |
| • | Works
with the Board in setting the short-term and long-term strategic directions and goals of the Company, including any major plans and transactions. |
| • | Reviews
the operating results of the Company at regular intervals, compares them to established objectives, and makes decisions related to any
such comparative results. |
| • | Oversees
Company staffing model. |
| • | Oversees
negotiations pertaining to major transactions. |
| • | Oversees
Company real estate and infrastructure. |
| • | Leads
the Company by example. |
| • | Communicate
on a regular basis with key Company managers and other Company personnel as Executive deems necessary. |
| • | Communicates
with major customers and major and active shareholders of the Company as Executive deems necessary. |
| • | Interacts
with media for public relations for the Company as Executive deems necessary or as directly instructed in writing by the Board. |
| • | Report
to the Board at Board meetings or as requested by the Board. |
APPENDIX B
TERMINATION CERTIFICATION
The undersigned Executive certifies that he does not
possess and has not failed to return any property belonging to AMERICA’S CAR MART, INC., Colonial, and/or the Parent Company, its
or their parents, subsidiaries, affiliates, successors or assigns (together for purposes of this Termination Certification, the “Company”)
or its or their 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 Executive or otherwise coming into Executive’s possession, whether maintained by Executive in
the facilities of the Company, at Executive’s home, or at any other location.
Executive further certifies that, except as otherwise
agreed in writing between the Company and the Executive, he will comply with all the covenants and restrictions contained in Section
7 of his Amended and Restated Employment Agreement with the Company dated ___________, 20__.
Date:
____________________________________
Executive
Name and Signature
APPENDIX C
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (this
“Release Agreement”) is entered into as of [•] by and between AMERICA’S CAR MART, INC., an Arkansas corporation
“Company”), a Delaware corporation, and Douglas Campbell (the “Executive”) (the Company and the
Executive each a “Party” and collectively the “Parties”). Capitalized terms used and not defined herein have
the meanings given to them in the Employment Agreement (as defined below).
WHEREAS, the Company and
the Executive entered into an Employment Agreement (the “Employment Agreement”), with an effective date of October
1, 2023;
WHEREAS, pursuant to the
Employment Agreement, the Executive agreed that in order to be eligible to receive certain severance payments and/or benefits under the
Employment Agreement, and in addition to fulfilling all other conditions precedent to such receipt, the Executive or the Executive’s
legal representative must execute a release;
NOW, THEREFORE, in connection
with the consideration paid to the Executive under the Employment Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. General
Release. By executing this Release Agreement, the Executive, for the Executive’s self, and for Executive’s heirs,
assigns, executors and administrators (collectively, the “Releasors”), hereby releases, remises and forever discharges
the Company, its parents, subsidiaries, affiliates, divisions, predecessors, successors, assigns, and each of its and their respective
members, managers, directors, officers, partners, attorneys, shareholders, administrators, employees, agents, representatives, employment
benefit plans, plan administrators, fiduciaries, trustees, insurers and re-insurers, and investors (collectively, the “Releasees”)
of and from all claims, causes of action, covenants, contracts, agreements, promises, damages, disputes, demands, and all other manner
of actions whatsoever, in law or in equity, that the Executive ever had, may have had, now has, or that the Releasors hereinafter can,
shall or may have, in each case whether known or unknown, asserted or unasserted, suspected or unsuspected, including but not limited
to those resulting from or related to the Executive’s employment with, or provision of services to, the Company, the termination
of that employment or service relationship, or under any other contract, including but not limited to claims for severance or other benefits
under any and all employment agreements with the Company, or any act or omission which has occurred at any time up to and including the
date of the Executive’s execution of this Release Agreement (all of the forgoing, collectively, the “Released Claims”).
(a) Released
Claims. Except as otherwise provided in this Release Agreement, the Released Claims include but are not limited to: claims for
monetary damages; claims related to the Executive’s employment with, or provision of services to, the Company or any affiliate
thereof; the termination of any of the foregoing; claims related to or arising out of any contract with the Company, including any and
all offer letters, employment agreements or other employment documents with the Company; claims to severance or similar benefits; claims
to expenses, attorneys’ fees or other indemnities; claims based on any actions or failures to act that occurred on or before the
date of this Release Agreement; and claims for other personal remedies or damages sought in any legal proceeding or charge filed with
any court or federal, state or local agency either by the Executive or by any person claiming to act on the Executive’s behalf
or in the Executive’s interest. The Executive understands that the Released Claims may have arisen under different local, state
and federal statutes, regulations, or common law doctrines. The Executive hereby specifically, but without limitation, agrees to release
all Releasees from any and all claims under each of the following:
(i) antidiscrimination,
antiharassment and antiretaliation laws, such as Title VII of the Civil Rights Act of 1964, as amended, and Executive Order 11246; Section 1981
of the Civil Rights Act of 1866; the Americans with Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of 1973; the
Age Discrimination in Employment Act, as amended, 29 U.S.C. Section 621 et seq. (“ADEA”); and the Arkansas Civil
Rights Act. This general release does not apply to claims that cannot be waived or released by law.; or any other local, state or
federal statute, regulation, common law or decision concerning discrimination, harassment, or retaliation on these or any other grounds
or otherwise governing the employment relationship;
(ii) other
employment laws, such as the federal Worker Adjustment and Retraining Notification Act of 1988 and similar state laws (known as WARN
laws, which require advance notice of certain workforce reductions); the Executive Retirement Income Security Act of 1974 (which, among
other things, protects the Executive benefits); the Fair Labor Standards Act of 1938 (which regulates wage and hour matters); the Family
and Medical Leave Act of 1993 (which requires employers to provide leaves of absence under certain circumstances); the Arkansas Equal
Pay Law; the U.S. Patriot Act, the Sarbanes-Oxley Act, the Dodd-Frank Act; and any other federal, state, or local statute, regulation,
constitution, common law or decision relating to employment, reemployment rights, leaves of absence or any other aspect of employment;
and
(iii) other
laws of general application, such as federal, state, or local laws enforcing express or implied employment agreements or other contracts
or covenants, or addressing breaches of such agreements, contracts or covenants; federal, state or local laws providing relief for alleged
wrongful discharge or termination, physical or personal injury, emotional distress, fraud, intentional or negligent misrepresentation,
defamation, invasion of privacy, violation of public policy or similar claims; common law claims under any tort, contract or other theory
now or hereafter recognized, and any other federal, state, or local statute, regulation, common law doctrine, or decision regulating
or regarding employment.
(b) Participation
in Agency Proceedings. Notwithstanding anything to the contrary herein, the Executive understands that nothing in this Release
Agreement or any other agreement that the Executive may have with the Company or its affiliates restricts or prohibits the Executive
from initiating communications directly with, responding to any inquiries from, providing testimony before, reporting possible violations
of law or regulation to, or from filing a claim or charge with, or assisting in an investigation directly with a self-regulatory authority
or a government agency or entity, including the Securities Exchange Commission, the federal Office of Occupational Health, the Equal
Employment Opportunity Commission, the National Labor Relations Board, or any other similar federal, state or local agency (collectively,
“Government Agencies”), or from making other disclosures that are protected under the whistleblower provisions of
applicable state or federal law or regulation, and the Executive does not need the Company’s prior authorization to do so. Notwithstanding
the foregoing, in making any such disclosures or communications, the Executive must take all reasonable precautions to prevent any unauthorized
use or disclosure of any information that may constitute Company Confidential Information to any party other than the applicable Government
Agency or Government Agencies. Further, by entering into this Release Agreement, the Executive understands and agrees that the Executive
is waiving any and all rights to recover any monetary relief or other personal relief against the Releasees as a result of any proceeding
with or before any Government Agency, although this Release Agreement does not limit the Executive’s right to receive and fully
retain a monetary award from a government-administered whistleblower award program for providing information directly to a Government
Agency.
(c) Claims
Not Released. The Released Claims do not include claims by the Executive for: (i) breach of this Release Agreement; (ii) worker’s
compensation benefits; (iii) state disability compensation; (iv) severance payments and benefits payable pursuant to Sections 9
and 10 of the Employment Agreement; (v) indemnification and coverage under any applicable governing document or applicable insurance
policy relating to the Company or its affiliates; (vi) reimbursement of unreimbursed business expenses properly incurred prior to
the Executive’s termination of employment for which reimbursement is then due and payable to Executive in accordance with Company
policy; (vii) rights pursuant to outstanding equity and equity-linked awards; and (viii) any other rights that cannot by law
be released by agreement, including any right to vested benefits, to the extent that any such right exists.
(d) No Existing
Claims or Assignment of Claims. The Executive represents and warrants that the Executive has not previously filed or joined in
any Released Claims and that the Executive has not given or sold any portion of any Released Claims to anyone else.
2. Acknowledgement
of Legal Effect of Release. BY SIGNING THIS RELEASE AGREEMENT, THE EXECUTIVE UNDERSTANDS THAT THE EXECUTIVE IS WAIVING ALL RIGHTS
THE EXECUTIVE MAY HAVE HAD TO PURSUE OR BRING A LAWSUIT OR MAKE ANY LEGAL CLAIM AGAINST THE COMPANY OR THE RELEASEES, INCLUDING BUT NOT
LIMITED TO CLAIMS THAT IN ANY WAY ARISE FROM OR RELATE TO THE EXECUTIVE’S EMPLOYMENT BY, OR PROVISION OF SERVICES TO, THE COMPANY
OR ANY RELEASEE, OR THE TERMINATION THEREOF, FOR ALL OF TIME UP TO AND INCLUDING THE DATE OF THE EXECUTION OF THIS RELEASE AGREEMENT.
THE EXECUTIVE FURTHER UNDERSTANDS THAT BY SIGNING THIS RELEASE AGREEMENT, THE EXECUTIVE IS PROMISING NOT TO PURSUE OR BRING ANY SUCH
LAWSUIT OR LEGAL CLAIM SEEKING MONETARY OR OTHER RELIEF.
3. Continuing
Obligations. Following the Executive’s termination of employment with the Company, the Executive acknowledges and agrees
that the Executive will continue to be bound by the post-termination provisions of the Employment Agreement, including without limitation
Sections 7 and 8 of the Employment Agreement, which are incorporated by reference into this Release Agreement and made a part hereof.
4. Governing
Law. This Release Agreement shall be governed by the laws of the State of Arkansas.
5. Counterparts.
This Release Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
6. Severability.
In the event that any provision or portion of this Release Agreement shall be determined to be invalid or unenforceable for any reason,
the remaining provisions or portions of this Release Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law.
7. Binding
Agreement; Assignment. This Release Agreement shall be binding upon and inure to the benefit of the Company or any corporation
or other entity to which the Company may transfer all or substantially all of its assets and business and to which the Company may assign
this Release Agreement, in which case the term “Company,” as used herein, shall mean such corporation or other entity, provided
that no such assignment shall relieve the Company from any obligations hereunder, whether arising prior to or after such assignment.
The Executive may not assign this Release Agreement or any part hereof without the prior written consent of the Company.
8. Waiver
of Age Discrimination Claims and Claims under ADEA; Acknowledgment/Time Periods. With respect to the release contained in Section 1,
the Executive agrees and understands that by signing this Release Agreement, the Executive is specifically releasing all claims the Executive
may have against Releasees, including all claims for age discrimination under the ADEA or similar state and local anti-discrimination
laws. The Executive acknowledges that the Executive is fully competent to enter into this Release Agreement, acknowledges that the Executive
has carefully read and understands this Agreement in its entirety, and executes it voluntarily and without coercion.
(a) Consideration
Period. The Executive is hereby notified that the Executive will be given twenty-one (21) days from the Executive’s
receipt of this Release Agreement to consider this Release Agreement and that the release contained in this Release Agreement includes
a waiver of all rights and claims the Executive have under the ADEA. The Executive acknowledges that the Executive has been advised
in writing and afforded the opportunity to review this Agreement with a competent, independent attorney of the Executive’s choice,
at the Executive’s own expense, regarding the legal effect of this Release Agreement before signing it. The Executive is further
notified that the countersigned copy of this Release Agreement shall be returned to [EMAIL], so that it is received on or before the
end of this period. The Executive must countersign and return this Release Agreement no later than [●]. The Executive agrees that
any change to the release contained in Section 1, whether material or immaterial, will not restart the twenty-one (21) day
review period.
(b) Revocation
Period. It is agreed and understood that the Executive will have a period of seven (7) days following the Executive’s
execution of this Release Agreement in which to revoke the Executive’s release of ADEA claims, and that such revocation will be
effective only if received in writing to [EMAIL], on or before the expiration of this seven (7) day period. This Release Agreement
shall become effective upon the expiration of the seven (7) day revocation period, provided the Executive does not revoke the Executive’s
consent within such period (“Effective Date”). In the event that the Executive exercises the Executive’s revocation
right pursuant to this paragraph, the Company shall have the option, in its sole discretion, to treat this entire Release Agreement as
null and void. Any payments or benefits due to the Executive as a result of the termination of the Executive’s employment under
the Employment Agreement shall not be made or begin before the Effective Date.
Exhibit 10.2
RETIREMENT AND TRANSITION AGREEMENT
THIS RETIREMENT AND TRANSITION AGREEMENT (this “Agreement”)
is entered into effective as of October 1, 2023 by and between America’s Car Mart, Inc., an Arkansas corporation (the “Company”),
and Jeffrey A. Williams (“Executive”).
WHEREAS, the Company is engaged in the business of
the sale and financing of used vehicles (the “Company Business”);
WHEREAS, Executive has been employed by the Company
for eighteen (18) years and served as its Chief Executive Officer for over five (5) years, most recently pursuant to that certain Employment
Agreement dated as of May 1, 2020 (the “Employment Agreement”);
WHEREAS, to facilitate a smooth and orderly transition
in the leadership and management of the Company, Executive agrees to transition to the position of Chief Executive Officer Emeritus for
the remainder of the fiscal year and to thereafter make himself available to provide consulting services to the Company on the terms and
conditions set forth herein;
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. Retirement.
1.1 Transition
to Emeritus Status. Effective as of October 1, 2023, Executive will transition from the office and title of Chief Executive Officer
to the office and title of Chief Executive Officer Emeritus for the remainder of the fiscal year ending April 30, 2024. During such period,
Executive will continue to be a senior executive officer of the Company and will continue to earn such annual base salary and be eligible
for such other compensation and benefits as are set forth in the Employment Agreement. Unless set forth herein, Executive’s Emeritus
status will not amend, modify or nullify terms of the Employment Agreement, and both the Company and Executive remain subject to the
terms and conditions of the Employment Agreement until the Retirement Date (as defined below), at which time the Employment Agreement
will expire and cease to be in effect, except for those provisions that by their terms survive the termination of the Employment Agreement.
1.2 Retirement. Executive’s retirement from employment with the Company and its parent, subsidiaries and affiliates (collectively,
the “Company Group”) shall be effective as of 11:59 p.m., Central Time, on April 30, 2024 (such date, the “Retirement
Date”). Such retirement from employment with the Company Group includes Executive’s voluntary retirement and resignation
from the position of Chief Executive Officer Emeritus of the Company and all other officer and employee positions held by Executive with
the Company Group.
1.3 Release
Agreement. Executive’s receipt of any payments and benefits pursuant to this Agreement (other than compensation payable for
service as a non-employee director of the Company’s parent company pursuant to Section 2.2 (the “Director Fees”))
is subject to Executive’s signing and not revoking the Release Agreement substantially in the form attached hereto as Exhibit
A (the “Release Agreement”); provided that the Release Agreement is effective within sixty (60) days following
the Retirement Date. No payments or benefits under this Agreement (other than the Director Fees) shall be paid or provided to Executive
unless the Release Agreement becomes effective in accordance with the deadline specified in the preceding sentence.
2. Director
Services and Compensation.
2.1 Director Services. Neither Executive’s transition to Chief Executive Officer Emeritus as set forth Section 1.1 nor
his retirement from employment with the Company Group as set forth in Section 1.2 will affect his position as a director of the Company’s
parent company, America’s Car-Mart, Inc., a Texas corporation (the “Parent Company”). Executive will continue
to serve as a director of the Parent Company until his resignation or removal from such directorship, subject to his annual nomination
by the Parent Company’s Board of Directors (the “Board”) (or a committee thereof) and election by the shareholders
of the Parent Company to serve as a member of the Board.
2.2 Director
Compensation. Prior to completion of the Consulting Period (as defined below), Executive shall not be entitled to receive any compensation
for his service as a non-employee director of the Parent Company, other than the compensation for his Consulting Services (as defined
below) as set forth in Section 3.2. Effective upon the expiration of the Consulting Period, subject to Executive’s nomination and
reelection to the Board, Executive shall be eligible to receive for his service as a non-employee director of the Parent Company an annual
cash retainer and such equity and other compensation payable to non-employee directors as is determined from time to time by the Board.
Executive’s compensation for service as a Parent Company director from the expiration of the Consulting Period through the date
of the Parent Company’s Annual Meeting in 2025 shall be pro rated to reflect the portion of the year in which Executive served
as a non-employee director and shall otherwise be payable in accordance with the Parent Company’s past practice for compensation
of its non-employee directors.
3. Consulting.
3.1 Consulting
Period and Services. Commencing on the Retirement Date and ending on the first anniversary thereof (the “Consulting Period”),
Executive shall make himself available to advise senior management and otherwise consult with the Company as reasonably requested by
the Company from time to time (the “Consulting Services”). The Company shall not control the manner or means by which
Executive performs the Consulting Services, and Executive’s provision of the Consulting Services to the Company shall be non-exclusive.
3.2 Consulting
Fee. In exchange for the Consulting Services, commencing on the Retirement Date, the Company agrees to pay Executive a monthly fee
of $20,000 (the “Monthly Fee”) during the Consulting Period for a total fee of $240,000. Except as to the Monthly
Fee, no other payment or benefits shall be due or payable to Executive for the Consulting Services. The Company may terminate Executive’s
service as a consultant prior to the expiration of the Consulting Period for Cause (as defined below) by delivery of written notice to
Executive, which notice shall effect termination immediately upon delivery of such written notice. In the event Executive’s service
as a consultant is terminated for Cause, the Monthly Fee shall be prorated through the effective date of termination. In the event Executive’s
service as a consultant is terminated by reason of Executive’s death, the Monthly Fee shall be paid through the month of termination.
For purposes of this Agreement, “Cause” means the occurrence of any of the following:
(i) the commission by Executive of any deliberate
and premeditated act involving moral turpitude detrimental to the economic interests of the Company Group;
(ii) the conviction of Executive of a felony;
(iii) the willful failure or refusal of Executive
to perform his duties hereunder (which failure or refusal persists after written notice from the Company to Executive complaining of such
failure or refusal) or Executive’s gross negligence of a material nature in connection with the performance of such duties; or
(vi) Executive’s breach of any provision
of this Agreement that is not cured within thirty (30) days subsequent to written notice from the Company to Executive of the breach.
3.3 Status
as an Independent Contractor. In all matters relating to the Consulting Services, nothing under this Agreement shall be construed
as creating any partnership, joint venture or agency between the Company and Executive or to constitute Executive as an agent, employee
or representative of the Company. Executive shall act solely as an independent contractor and, as such, is not authorized to bind any
member of the Company Group to third parties. Consequently, Executive shall not be entitled to participate during the Consulting Period
in any of the employee benefit plans, programs or arrangements of the Company Group in his capacity as a consultant. The Company will
not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any
insurance contributions, including unemployment or disability, or obtaining workers’ compensation insurance on Executive’s
behalf. The Company has not, is not and shall not be obligated to make, and it is the sole responsibility of Executive to make, all periodic
filings and payments required to be made in connection with any withholding taxes, FICA taxes, federal or state unemployment taxes, and
any other federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with any payments
made by the Company to Executive in connection with the provision of the Consulting Services. Executive agrees to indemnify and hold
the Company harmless from and against any costs, fees, expenses, liabilities or penalties associated with any withholding taxes, FICA
taxes, federal unemployment taxes, and any other federal, state or local taxes, payments or filings required to be paid, made or maintained
in connection with any payments made by the Company to Executive for the Consulting Services. Executive shall not make any public statements
concerning the Consulting Services that purport to be on behalf of the Company Group, in each case without prior consent from the Company.
4. Equity-Based
Awards. All non-qualified stock options to purchase shares of Parent Company stock subject to time-based or performance-based vesting
conditions (the “Awards”), granted to Executive prior to the Retirement Date shall continue to vest and, to the extent
such Awards are or become vested, shall remain exercisable in accordance with the terms of the applicable Award agreements and the America’s
Car-Mart, Inc. Amended and Restated Stock Option Plan, as amended (the “Stock Option Plan”), subject to Executive’s
continuous service (as defined in the Stock Option Plan) as a director of the Parent Company or as a consultant of the Company in accordance
with the terms of this Agreement.
5. Retirement
Plans; Deferred Compensation; Insurance. Executive shall be entitled to receive his vested accrued benefits, if any, under the America’s
Car-Mart, Inc. 401(k) Plan and the America’s Car-Mart, Inc. Nonqualified Deferred Compensation Plan in accordance with the terms
and conditions of such plans. In addition, Executive shall continue to receive health insurance coverage under the Company’s employee
and executive health insurance plans for a period of two years following the Retirement Date as a former executive officer who remains
a director of the Parent Company, subject to Executive’s continued service as a Parent Company director. Such coverage shall include
medical benefits only as in effect for Executive as of or immediately prior to the Retirement Date, and the Company will share the premium
costs for such coverage in the same or similar proportion as prior to the Retirement Date. Commencing on May 1, 2024 (or earlier, if
required by the terms of the Company’s life insurance policy), the Company shall no longer pay life insurance premiums on behalf
of Executive.
6. No
Other Compensation or Benefits. Except as otherwise specifically provided herein or as required by the Consolidated Omnibus Budget
Reconciliation Act (COBRA) or other applicable law, Executive shall not be entitled to any compensation or benefits or to participate
in any past, present or future employee benefit plans, programs or arrangements of the Company Group on or after the Retirement Date.
7. Covenants and Agreements. The obligations and provisions set forth in Sections 6 and 7 of the Employment Agreement shall remain
in effect in accordance with the terms of such sections.
8. Section
409A. This Agreement is intended to meet, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations and interpretive guidance promulgated thereunder (collectively, “Section 409A”), with
respect to amounts subject thereto, and shall be interpreted and construed consistent with that intent. No expenses eligible for reimbursement,
or in-kind benefits to be provided, during any calendar year shall affect the amounts eligible for reimbursement in any other calendar
year, to the extent subject to the requirements of Section 409A, and no such right to reimbursement or right to in-kind benefits shall
be subject to liquidation or exchange for any other benefit. For purposes of Section 409A, each payment in a series of installment payments
provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination
of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the
Company makes no representations that the payments and benefits provided under this Agreement comply with 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 Executive
on account of non-compliance with Section 409A. If amounts payable under this Agreement do not qualify for exemption from Section 409A
at the time of Executive’s separation from service and therefore are deemed deferred compensation subject to the requirements of
Section 409A on the date of such separation from service, then if Executive is a “specified employee” under Section 409A
on the date of Executive’s separation from service, payment of the amounts hereunder shall be delayed for a period of six (6) months
from the date of Executive’s separation from service if required by Section 409A. The accumulated postponed amount shall be paid
in a lump sum within sixty (60) days after the end of the six-month period. If Executive dies during the postponement period prior to
payment of the postponed amount, the amounts withheld on account of Section 409A shall be paid to Executive’s estate within sixty
(60) days after the date of Executive’s death.
9. Miscellaneous.
9.1
Severability. As the provisions of this Agreement are independent of and severable from each other, the Company and Executive
agree that if, in any action before any court or agency legally empowered to enforce this Agreement, any term, restriction, covenant,
or promise hereof is found to be unreasonable or otherwise unenforceable, then such decision shall not affect the validity of the other
provisions of this Agreement, and such invalid term, restriction, covenant, or promise shall also be deemed modified to the extent necessary
to make it enforceable.
9.2
Notice. For purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when received if delivered in person, the next business day if delivered by
overnight commercial courier (e.g., Federal Express), or the third business day if mailed by United States certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to the Company, to:
America’s Car Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
Attn: Douglas Campbell, Chief Executive Officer
with a copy to:
America’s Car Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
Attn: W. Brett Papasan, Chief Legal Officer
If to Executive, to:
Jeffrey A. Williams
3877 Laural Ridge
Springdale, AR 72764
Either party may change its address for notices in
accordance with this Section 9.2 by providing written notice of such change to the other party.
9.3
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas.
9.4
Benefits; Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, personal representatives, legal representatives, successors and permitted assigns. Executive shall not assign his interest
in or delegate his duties under this Agreement. However, the Company is expressly authorized to assign this Agreement to one of its affiliates
or subsidiaries upon written notice to Executive; provided that (a) the assignee assumes all of the obligations of the Company under this
Agreement, (b) Executive’s role when viewed from the perspective of such assignee in the aggregate is comparable to such role immediately
before the assignment, and (c) the Company, for so long as an affiliate of the assignee, remains secondarily liable for the financial
obligations hereunder. The rights and obligations of the Company hereunder may also be assigned 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.
9.5
Entire Agreement. This Agreement, including its incorporated Exhibits A and B, constitutes the entire agreement between
the parties, and all prior understandings, agreements or undertakings between the parties concerning Executive’s retirement from
employment or the other subject matters of this Agreement (other than the post-employment restrictive covenants set forth in the Employment
Agreement, which shall remain in full force and effect) are superseded in their entirety by this Agreement.
9.6
Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may
be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
9.7
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together
shall be one and the same instrument.
9.8
Interpretation. As both parties have had the opportunity to consult with legal counsel, no provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party by reason of such party having, or being deemed to have, drafted,
devised, or imposed such provision.
9.9
Duration. Notwithstanding the termination of Executive’s service as a consultant under this Agreement or as a director
of the Parent Company, this Agreement shall continue to bind the parties for so long as any obligations remain under this Agreement.
9.10
Incorporation of Recitals. The recitals set forth in the beginning of this Agreement are hereby incorporated into the body
of this Agreement as if fully set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have signed
their names on December 21, 2023, and the Agreement shall be effective as of the day and year first above written.
EXECUTIVE HEREBY ACKNOWLEDGES THAT EXECUTIVE HAS READ THIS AGREEMENT,
THAT EXECUTIVE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT EXECUTIVE HEREBY ENTERS INTO THIS AGREEMENT VOLUNTARILY
AND OF EXECUTIVE’S OWN FREE WILL.
(Signature Page to Retirement and Transition Agreement) |
EXHIBIT A
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (this “Agreement”),
dated as of __________ ___, 2024, by and between America’s Car Mart, Inc., an Arkansas corporation (the “Company”),
and Jeffrey A. Williams (“Executive”). Capitalized terms used herein but not defined shall have the meanings set forth
in the Retirement and Transition Agreement, dated as of December 21, 2023 (the “Retirement Agreement”), by and between
the Company and Executive.
WHEREAS, the Retirement Agreement sets forth the terms
and conditions of Executive’s retirement from employment with the Company effective as of April 30, 2024; and
WHEREAS, the Retirement Agreement provides that, in
consideration for certain payments and benefits payable to Executive in connection with his retirement, Executive shall fully and finally
release the Company Group from all claims relating to Executive’s employment relationship with the Company and the termination of
such relationship.
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.
Release.
1.1
General Release. In consideration of the Company’s obligations under the Retirement Agreement and for other valuable
consideration, Executive hereby releases and forever discharges the Company Group and each of their respective officers, employees, directors
and agents (collectively, the “Released Parties”) from any and all claims, actions and causes of action (collectively,
“Claims”), including, without limitation, any Claims arising under any applicable federal, state, local or foreign
law, that Executive may have, or in the future may possess arising out of (x) Executive’s employment relationship with and service
as an employee or officer of the Company Group, and the termination of such relationship or service, or (y) any event, condition, circumstance
or obligation that occurred, existed or arose on or prior to the date hereof; provided, however, that the release set forth in this Section
1.1 shall not apply to (i) the obligations of the Company under the Retirement Agreement and (ii) the obligations of the Company to continue
to provide director and officer indemnification to Executive as provided in the articles of incorporation, bylaws or other governing documents
for the Company. Executive further agrees that the payments and benefits described in the Retirement Agreement shall be in full satisfaction
of any and all claims for payments or benefits, whether express or implied, that Executive may have against the Company Group arising
out of Executive’s employment relationship, Executive’s service as an employee or officer of the Company Group and the termination
thereof. The provision of the payments and benefits described in the Retirement Agreement shall not be deemed an admission of liability
or wrongdoing by the Company Group. This Section 1.1 does not apply to any Claims that Executive may have as of the date Executive signs
this Agreement arising under the federal Age Discrimination in Employment Act of 1967, as amended, and the applicable rules and regulations
promulgated thereunder (“ADEA”). Claims arising under ADEA are addressed in Section 1.2 of this Agreement.
1.2
Specific Release of ADEA Claims. In consideration of the payments and benefits provided to Executive under the Retirement
Agreement, Executive hereby releases and forever discharges the Company Group and each of their respective officers, employees, directors
and agents from any and all Claims that Executive may have as of the date Executive signs this Agreement arising under ADEA. By signing
this Agreement, Executive hereby acknowledges and confirms the following: (a) Executive was advised by the Company in connection with
Executive’s retirement to consult with an attorney of Executive’s choice prior to signing this Agreement and to have such
attorney explain to Executive the terms of this Agreement, including, without limitation, the terms relating to Executive’s release
of claims arising under ADEA; (b) Executive has been given a period of not fewer than twenty-one (21) days to consider the terms of this
Agreement and to consult with an attorney of Executive’s choosing with respect thereto; and (c) Executive is providing the release
and discharge set forth in this Section 1.2 only in exchange for consideration in addition to anything of value to which Executive is
already entitled.
1.3
Representation. Executive hereby represents that Executive has not instituted, assisted or otherwise participated in connection
with, any action, complaint, claim, charge, grievance, arbitration, lawsuit or administrative agency proceeding, or action at law or otherwise
against any member of the Company Group or any of their respective officers, employees, directors, shareholders or agents.
2.
Cessation of Payments. In the event that Executive (a) files any charge, claim, demand, action or arbitration with regard to
Executive’s employment, compensation or termination of employment under any federal, state or local law, or an arbitration under
any industry regulatory entity, except in either case for a claim for breach of the Retirement Agreement or failure to honor the obligations
set forth therein or (b) breaches any of the covenants or obligations contained in or incorporated into the Retirement Agreement, the
Company shall be entitled to cease making any payments due pursuant to Sections 4 and 5 of the Retirement Agreement.
3.
Voluntary Assent. Executive affirms that Executive has read this Agreement, and understands all of its terms, including the
full and final release of claims set forth in Section 1.1. Executive further acknowledges that (a) Executive has voluntarily entered into
this Agreement; (b) Executive has not relied upon any representation or statement, written or oral, not set forth in this Agreement; (c)
the only consideration for signing this Agreement is as set forth in the Retirement Agreement; and (d) this document gives Executive the
opportunity and encourages Executive to have this Agreement reviewed by Executive’s attorney and/or tax advisor.
4.
Revocation. This Agreement may be revoked by Executive within the seven-day period commencing on the date Executive signs this
Agreement (the “Revocation Period”). In the event of any such revocation by Executive, all obligations of the Company
under the Retirement Agreement shall terminate and be of no further force and effect as of the date of such revocation. No such revocation
by Executive shall be effective unless it is in writing and signed by Executive and received by the Company prior to the expiration of
the Revocation Period.
5.
Miscellaneous.
5.1
Severability. As the provisions of this Agreement are independent of and severable from each other, the Company and Executive
agree that if, in any action before any court or agency legally empowered to enforce this Agreement, any term, restriction, covenant,
or promise hereof is found to be unreasonable or otherwise unenforceable, then such decision shall not affect the validity of the other
provisions of this Agreement, and such invalid term, restriction, covenant, or promise shall also be deemed modified to the extent necessary
to make it enforceable.
5.2
Notice. For purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when received if delivered in person, the next business day if delivered by
overnight commercial courier (e.g., Federal Express), or the third business day if mailed by United States certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to the Company, to:
America’s Car Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
Attn: Douglas Campbell, Chief Executive Officer
with a copy to:
America’s Car Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
Attn: W. Brett Papasan, Chief Legal Officer
If to Executive, to:
Jeffrey A. Williams
3877 Laural Ridge
Springdale, AR 72764
Either party may change its address for notices in
accordance with this Section 5.2 by providing written notice of such change to the other party.
5.3
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas.
5.4
Benefits; Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
heirs, personal representatives, legal representatives, successors and, in the case of a sale of all or substantially all of the Company’s
assets, or upon any merger, consolidation or reorganization of the Company, the Company’s assigns.
5.5
Entire Agreement. This Agreement and the Retirement Agreement constitute the entire agreement between the parties, and all
prior understandings, agreements or undertakings between the parties concerning Executive’s retirement from employment or the other
subject matters of this Agreement (other than the post-employment restrictive covenants set forth in the Employment Agreement, which shall
remain in full force and effect) are superseded in their entirety by this Agreement.
5.6
Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may
be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
5.7
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together
shall be one and the same instrument.
5.8
Interpretation. As both parties have had the opportunity to consult with legal counsel, no provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party by reason of such party having, or being deemed to have, drafted,
devised, or imposed such provision.
5.9
Incorporation of Recitals. The recitals set forth in the beginning of this Agreement are hereby incorporated into the body
of this Agreement as if fully set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have signed
their names as of the day and year first above written.
|
AMERICA’S CAR MART, INC., |
|
an Arkansas corporation |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
EXECUTIVE HEREBY ACKNOWLEDGES THAT EXECUTIVE HAS READ THIS AGREEMENT,
THAT EXECUTIVE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT EXECUTIVE HEREBY ENTERS INTO THIS AGREEMENT VOLUNTARILY
AND OF EXECUTIVE’S OWN FREE WILL.
_______________________
Jeffrey A. Williams
(Signature Page to Release Agreement) |
EXHIBIT B
TERMINATION CERTIFICATION
The undersigned Executive certifies that he 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 Executive or otherwise coming into Executive’s
possession, whether maintained by Executive in the facilities of the Company, at Executive’s home, or at any other location.
Executive further certifies that he will comply with
all the terms of his Non-Competition, Non-Solicitation, Non-Disclosure, and Confidentiality Agreement.
Exhibit B
v3.23.4
Cover
|
Aug. 29, 2023 |
Cover [Abstract] |
|
Document Type |
8-K/A
|
Amendment Flag |
true
|
Amendment Description |
On September 5, 2023, America’s Car-Mart, Inc. (the “Company”)
filed a Current Report on Form 8-K (the “Original Report”) which disclosed, among other things, the promotion of Douglas W.
Campbell as Chief Executive Officer (“CEO”) of the Company and his appointment to serve as a director of the Company, each
effective October 1, 2023. The Original Report also disclosed that the Company’s then current CEO, Jeffrey A. Williams, would serve
as CEO Emeritus and an advisor to senior management effective October 1, 2023, for the remainder of fiscal year 2024, and that Mr. Williams
would continue to serve as a director of the Company. This Amendment No. 1 to Form 8-K (this “Amendment No. 1”), which amends
the Original Report, is being filed solely to report the Company’s entry into an amended and restated employment agreement with
Mr. Campbell in connection with his promotion to CEO and a retirement and transition agreement with Mr. Williams. Except for the additional
disclosures provided in this Amendment No. 1, the information presented in the Original Report remains unchanged.
|
Document Period End Date |
Aug. 29, 2023
|
Entity File Number |
0-14939
|
Entity Registrant Name |
AMERICA’S CAR-MART, INC.
|
Entity Central Index Key |
0000799850
|
Entity Tax Identification Number |
63-0851141
|
Entity Incorporation, State or Country Code |
TX
|
Entity Address, Address Line One |
1805 North 2nd
|
Entity Address, Address Line Two |
Street
|
Entity Address, Address Line Three |
Suite 401
|
Entity Address, City or Town |
Rogers
|
Entity Address, State or Province |
AR
|
Entity Address, Postal Zip Code |
72756
|
City Area Code |
(479)
|
Local Phone Number |
464-9944
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Title of 12(b) Security |
Common Stock, par value $0.01 per share
|
Trading Symbol |
CRMT
|
Security Exchange Name |
NASDAQ
|
Entity Emerging Growth Company |
false
|
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