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EXHIBIT 10(g)(2)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated April 19, 2001, is
between Xxxxx XxXxxxxxx, residing at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
(hereinafter "McCluskey", "you" or "your"), and Credit Acceptance Corporation, a
Michigan corporation (hereinafter "CAC", "Company", "us" or "our").
BACKGROUND
A. CAC is a specialized financial services company providing
funding, receivables management, collection, sales training and related products
and services to automobile dealers. CAC's principal business is providing
automobile dealers with a financing source for used car purchasers who have
limited access to traditional sources of consumer credit, such as banks and
credit unions, due to their lack of credit history or a poor credit history
(collectively the "Guaranteed Credit Approval System" or "GCAS").
X. XxXxxxxxx is the dealer principal and President of XxXxxxxxx
Chevrolet, Inc, an Ohio corporation (the "Dealership") and President of AutoNet
Xxxxxxx.xxx, a division of CAC (the "Division").
C. CAC desires to hire McCluskey as its Chief Marketing Officer to
market and promote the GCAS.
X. XxXxxxxxx is willing and agrees to accept such employment on the
terms and conditions stated in this Agreement.
AGREEMENTS
1. Employment. The Board of Directors of CAC ("the Board") has
confirmed the appointment of McCluskey as Chief Marketing Officer of CAC, and
McCluskey accepts such employment, upon the terms and subject to the conditions
set forth in this Agreement. McCluskey retains his previous title and
responsibilities as President of the Division.
2. Duties During Employment Period.
(a) McCluskey shall perform and discharge well and
faithfully such duties for CAC as may be assigned to McCluskey from time
to time by the Board or by the operating executive of CAC to whom
supervisory responsibilities with respect to McCluskey has been
assigned. McCluskey shall devote sufficient time, attention, and
energies to the business of CAC reasonably necessary to achieve CAC's
business objectives, and shall not during the term of this Agreement
engage in any other business activity, whether or not such activity is
pursued for gain, profit, or other pecuniary advantage, other than
service as a director of a corporation which does not compete with the
Division or CAC or any affiliated company, except as provided in Section
2(b).
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(b) CAC acknowledges that McCluskey has interests in the
other businesses existing as of the date of this Agreement described in
Exhibit A to this Agreement (the "Existing Businesses") and agrees that
this Section 2 shall not prevent McCluskey from devoting time, attention
and energies to the Existing Businesses, provided that devoting such
time, attention and energies to the Existing Businesses does not
materially detract from XxXxxxxxx'x performance of his duties under this
Agreement.
3. Relocation. McCluskey acknowledges and agrees that in order for
McCluskey to devote sufficient time, attention, and energies to the business of
CAC, that McCluskey must relocate his primary residence from its current
location to the metropolitan Detroit area on or before August 1, 2001. CAC
agrees to pay all reasonable and necessary moving expenses related to this
relocation.
4. Term of Employment.
(a) The term of this Agreement shall continue indefinitely,
provided however, that either of the parties may terminate this
Agreement by giving written notice of such termination to the
other party not less than thirty (30) days prior to the
effective date of the termination specified in such notice. In
the event of any such termination of this Agreement without
cause by CAC, CAC shall pay to McCluskey all salary and other
compensation accrued through and including the date of any such
termination and reimburse any business expenses incurred by
McCluskey up to and including the date of such termination.
(b) In addition to the right of termination provided in
paragraph (a) CAC may terminate this Agreement forthwith and
without notice to you in the event you commit any act of
embezzlement, theft, fraud, or dishonesty related to your
employment, or in the event you commit any material breach of
this Agreement or CAC's policies as they may be from time to
time set forth in CAC's Employee Handbook, of which you shall
receive a current and updated copy.
(c) This Agreement terminates automatically upon your death.
(d) Whenever we make a reference in this Agreement to
termination "under any circumstances", such term shall mean and
include termination by either of the parties, with or without
cause, termination upon your death, termination by mutual
agreement or acquiescence of the parties, and termination for
any other reason or under any other circumstances.
5. Employment Period Compensation.
(a) Salary. For services rendered by McCluskey under this
Agreement, CAC shall pay McCluskey an annual base salary of $250,000 per
year. Such salary shall be payable at such intervals as salaries are
paid generally to salaried employees of the
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Company. The Compensation Committee of the Board may, from time to time,
increase XxXxxxxxx'x salary above that set forth above, in its sole
discretion, as it deems appropriate in light of the performance of
McCluskey.
(b) Grant of Options. CAC shall grant to McCluskey, as of the
date this Agreement is executed, options to purchase 1,000,000 shares of
CAC common stock at $6.09 per share. This option grant shall be made in
accordance with and governed by CAC's Employee Stock Option Plan (the
"Plan") and CAC's Non-Qualified Stock Option Agreement ("Option
Agreement"), a copy of which is attached hereto as Exhibit B and is
incorporated into this Agreement by reference. All options issued to
McCluskey shall be subject to all of the terms and conditions of the
Plan and Option Agreement as amended from time to time, and shall vest
as set forth in Exhibit C to this Agreement.
(c) Bonus Program. While employed at CAC, McCluskey shall
participate in an Executive Bonus Program as approved by the
Compensation Committee of the Board from time to time. The Executive
Bonus Program will be based upon a formula driven by the Economic Value
Added ("EVA") of CAC North America, which includes CAC, the Division,
CAC of Canada and CAC Leasing (collectively "CACNA"). The calculation
utilized in determining the EVA of CACNA will be adopted by the
Compensation Committee of the Board from time to time, and will be
consistent with the EVA calculation used to determine the executive
bonus for all other CAC executives. The Executive Bonus will be payable
in two parts, with 50% of the current year bonus paid to you and 50%
carried over to the next year. The Executive Bonus will be calculated in
accordance with the Bonus Plan (as amended from time to time by the
Compensation Committee of the Board) attached hereto as Exhibit H.
(d) Other Benefits. While CAC employs McCluskey, CAC shall
provide McCluskey with fringe benefits no less favorable than those then
being received generally by salaried employees of CAC and in a manner
and amount consistent with his position, compensation, seniority and
age.
(e) Advance. In connection with the execution of the May 24, 1999
Consulting Agreement entered into by and between CAC and the Dealership,
CAC made a cash advance to the Dealership in the amount of $850,000
against bonuses payable to the Dealership (the "Advance"). To evidence
its obligation to repay the Advance, the Dealership executed and
delivered to CAC a promissory note, a copy of which is attached and
incorporated into this Agreement as Exhibit D (the "Note"). In
furtherance of the covenants of this Agreement, McCluskey has agreed to
personally guarantee the Note by executing the Guarantee in the form
attached hereto as Exhibit I. All unpaid principal and interest under
the Note shall be due and payable by Dealership on the tenth anniversary
of this Agreement. This provision shall specifically supersede the term
originally set forth in the Note.
(f) Additional Advance. Concurrently with the execution of this
Agreement, and in furtherance of XxXxxxxxx'x duty under paragraph 3 of
this Agreement, CAC will
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make a cash advance of $1,500,000 to McCluskey (the "Additional
Advance"). To evidence his obligation to repay the Additional Advance,
concurrently with the execution of this Agreement, McCluskey will
execute and deliver to CAC a promissory note in substantially the form
attached to this Agreement as Exhibit E (the "Note 2"). McCluskey agrees
to pay to CAC the Net Proceeds received from the sale of his primary
residence as soon as the sale funds have been distributed. Net Proceeds
means all amounts that are due and payable to McCluskey as a result of
the sale of his primary residence in Cincinnati. McCluskey agrees to use
reasonable efforts to close on the sale of his primary residence in
Cincinnati on or before December 31, 2001; provided, however, that the
determination of adequate consideration for the sale of his primary
residence in Cincinnati shall be in the sole discretion of McCluskey.
All unpaid principal and interest under Note 2 shall be due and payable
on the tenth anniversary of the date of this Agreement.
6. Confidentiality and Non-Competition Agreement. McCluskey
acknowledges and recognizes the highly competitive nature of the Division's and
CAC's business and, accordingly, for the consideration set forth in paragraph 5
above, McCluskey agrees to execute the Confidentiality and Non-Competition
Agreement attached hereto as Exhibit F.
7. Notices. Any notice required or permitted to be given under this
Agreement shall be deemed properly given if in writing and if mailed by
registered or certified mail, postage prepaid with return receipt requested or
sent by express courier service, charges prepaid by shipper, to his residence in
the case of notices to McCluskey (with a copy to Xxxxxx X. Xxxxxxxx, Esq., at
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxx 00000), and to the principal
offices of CAC, to the attention of its President, Xxxxxxx Xxxxxxxxx (with a
copy to CAC's General Counsel - Attention Xxxxxxx X. Xxxxxx, Esq.) in the case
of notices to CAC (or to such other address as a party is directed pursuant to
written notice from the other party).
8. Assignment. This Agreement shall not be assignable by either
party except by CAC to any subsidiary or affiliate of CAC or any successor in
interest to the Division or CAC's business.
9. Entire Agreement. This instrument contains the entire agreement
of the parties relating to the subject of employment, and supersedes, replaces
and cancels in its entirety any previously executed or existing Employment
Agreement, Consulting Agreement, Option Agreement attachment, Annex or Exhibit,
except for those existing Agreements or Notes that have been incorporated herein
by reference. The terms and conditions of this Agreement may not be waived,
changed, modified, extended or discharged orally but only by agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification, extension or discharge is sought. The waiver by CAC of a breach of
any provision of this Agreement by McCluskey shall not operate or be construed
as a waiver of a breach of any other provision of this Agreement or of any
subsequent breach by McCluskey.
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10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without regard to
its conflict of laws principles.
11. Alternative Dispute Resolution. Other than CAC's remedies set
forth in the Confidentiality and Non Competition Agreement attached as Exhibit
G, any disputes and differences arising between the parties in connection with
or relating to this Agreement or the parties relationship with respect hereto
shall be settled and finally determined in accordance with the Credit Acceptance
Corporation Alternative Dispute Resolution Policy, a copy of which is attached
hereto as Exhibit G.
12. Headings. The headings of the Sections are for convenience only
and shall not control or affect the meaning or construction or limit the scope
or intent of any of the provisions of this Agreement.
The parties have executed this Agreement on April 19, 2001.
CREDIT ACCEPTANCE CORPORATION XXXXX XXXXXXXXX
By: /S/ XXXXX X. XXXXXXX /S/ XXXXX XXXXXXXXX
------------------------------- --------------------------
Name: Xxxxx X. Xxxxxxx
Its: Chief Operating Officer
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EXHIBIT A
EXISTING BUSINESSES
1. XxXxxxxxx Chevrolet, Inc.
2. Driver's Mart of Cincinnati, LLC, d/b/a "AutoNation of Cincinnati"
3. AutoNet Finance Company, a division of XxXxxxxxx Chevrolet, Inc.
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EXHIBIT B
[CAC LOGO]
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE
CREDIT ACCEPTANCE CORPORATION
1992 EMPLOYEE STOCK OPTION PLAN
THIS AGREEMENT IS ENTERED INTO EFFECTIVE AS OF APRIL 19, 2001 BY AND
BETWEEN CREDIT ACCEPTANCE CORPORATION ("CORPORATION") AND XXXXX XXXXXXXXX
("OPTIONEE"), PURSUANT TO THE CREDIT ACCEPTANCE CORPORATION 1992 STOCK OPTION
PLAN ("PLAN"). THE CORPORATION HEREBY GRANTS TO THE OPTIONEE A NON-QUALIFIED
STOCK OPTION TO PURCHASE A TOTAL OF 1,000,000 SHARES OF COMMON STOCK, SUBJECT TO
THE TERMS AND CONDITIONS CONTAINED IN THE PLAN AND AS HEREINAFTER PROVIDED (THE
"OPTION"). CAPITALIZED TERMS NOT DEFINED IN THIS AGREEMENT SHALL HAVE THE
MEANINGS RESPECTIVELY ASCRIBED TO THEM IN THE PLAN.
1. OPTION PRICE. THE OPTION SHALL BE EXERCISABLE AT A PRICE OF
$6.00 PER SHARE.
2. OPTION EXERCISE. (a) THE OPTION SHALL BECOME EXERCISABLE IN
INSTALLMENTS AS DESCRIBED IN EXHIBIT C TO THE EMPLOYMENT AGREEMENT, DATED APRIL
19, 2001, BETWEEN THE CORPORATION AND THE OPTIONEE. TO THE EXTENT NOT EXERCISED,
INSTALLMENTS SHALL ACCUMULATE AND THE OPTIONEE MAY EXERCISE THEM THEREAFTER IN
WHOLE OR IN PART. ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, THE OPTION SHALL EXPIRE AND NO LONGER BE EXERCISABLE AFTER THE
DATE WHICH IS THE TENTH (10TH) ANNIVERSARY OF THE DATE OF THIS AGREEMENT.
(b) THE OPTION SHALL BE EXERCISABLE BY A WRITTEN NOTICE IN THE
FORM ATTACHED HERETO WHICH SHALL:
(i) STATE THE ELECTION TO EXERCISE THE OPTION, THE
NUMBER OF SHARES WITH RESPECT TO WHICH IT IS BEING
EXERCISED, THE PERSON IN WHOSE NAME THE STOCK CERTIFICATE
OR CERTIFICATES FOR SUCH SHARES OF COMMON STOCK ARE TO BE
REGISTERED, AND THE ADDRESS AND SOCIAL SECURITY NUMBER OF
SUCH PERSON;
(ii) BE SIGNED BY THE PERSON OR PERSONS ENTITLED TO
EXERCISE THE OPTION, AND IF THE OPTION IS BEING EXERCISED
BY A PERSON OR PERSONS OTHER THAN THE OPTIONEE, BE
ACCOMPANIED BY PROOF
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SATISFACTORY TO THE CORPORATION'S LEGAL COUNSEL OF THE
RIGHT OF SUCH PERSON OR PERSONS TO EXERCISE THE OPTION;
AND
(iii) BE IN WRITING AND DELIVERED TO THE TREASURER
OF THE CORPORATION PURSUANT TO SECTION 12 OF THIS
AGREEMENT.
(c) PAYMENT OF THE FULL PURCHASE PRICE OF ANY SHARES WITH
RESPECT TO WHICH THE OPTION IS BEING EXERCISED SHALL ACCOMPANY THE NOTICE OF
EXERCISE OF THE OPTION. PAYMENT SHALL BE MADE (i) IN CASH OR BY CERTIFIED CHECK,
BANK DRAFT OR MONEY ORDER; (ii) IF THE COMMITTEE SO APPROVES AT THE TIME OF
EXERCISE, BY TENDERING TO THE CORPORATION SHARES OF COMMON STOCK THEN OWNED BY
THE OPTIONEE, DULY ENDORSED FOR TRANSFER OR WITH DULY EXECUTED STOCK POWER
ATTACHED, WHICH SHARES SHALL BE VALUED AT THEIR FAIR MARKET VALUE AS OF THE DATE
OF SUCH EXERCISE AND PAYMENT; OR (iii) IF THE COMMITTEE SO APPROVES AT THE TIME
OF EXERCISE, BY DELIVERY TO THE CORPORATION OF A PROPERLY EXECUTED EXERCISE
NOTICE, ACCEPTABLE TO THE CORPORATION, TOGETHER WITH IRREVOCABLE INSTRUCTIONS TO
THE OPTIONEE'S BROKER TO DELIVER TO THE CORPORATION A SUFFICIENT AMOUNT OF CASH
TO PAY THE EXERCISE PRICE AND ANY APPLICABLE INCOME AND EMPLOYMENT WITHHOLDING
TAXES, IN ACCORDANCE WITH A WRITTEN AGREEMENT BETWEEN THE CORPORATION AND THE
BROKERAGE FIRM ("CASHLESS EXERCISE") IF, AT THE TIME OF EXERCISE, THE
CORPORATION HAS ENTERED INTO SUCH AN AGREEMENT.
3. TERMINATION OF EMPLOYMENT.
(a) TERMINATION PRIOR TO OPTION BECOMING EXERCISABLE. IF, PRIOR
TO THE DATE THAT THE OPTIONS SHALL FIRST BECOME EXERCISABLE THE OPTIONEE'S
EMPLOYMENT SHALL BE TERMINATED, WITH OR WITHOUT CAUSE, OR BY THE ACT, DEATH,
DISABILITY, OR RETIREMENT OF THE OPTIONEE, THE OPTIONEE'S RIGHT TO EXERCISE THE
OPTION SHALL TERMINATE AND ALL RIGHTS HEREUNDER SHALL CEASE.
(b) TERMINATION OTHER THAN BECAUSE OF DEATH OR DISABILITY AFTER
OPTION BECOMES EXERCISABLE. IF, ON OR AFTER THE DATE THAT THE OPTION SHALL FIRST
BECOME EXERCISABLE, THE OPTIONEE'S EMPLOYMENT SHALL BE TERMINATED FOR ANY REASON
OTHER THAN DEATH OR DISABILITY, THE OPTIONEE SHALL HAVE THE RIGHT, PRIOR TO THE
EARLIER OF (i) THE EXPIRATION OF THE OPTION OR (ii) THREE MONTHS AFTER SUCH
TERMINATION OF EMPLOYMENT, TO EXERCISE THE OPTION TO THE EXTENT THAT IT WAS
EXERCISABLE AND IS UNEXERCISED ON THE DATE OF SUCH TERMINATION OF EMPLOYMENT,
SUBJECT TO ANY OTHER LIMITATION ON THE EXERCISE OF THE OPTION IN EFFECT AT THE
DATE OF EXERCISE.
(c) TERMINATION BECAUSE OF DEATH OR DISABILITY AFTER OPTION
BECOMES EXERCISABLE. IF, ON OR AFTER THE DATE THAT THE OPTION SHALL HAVE BECOME
EXERCISABLE, THE OPTIONEE SHALL DIE OR BECOME DISABLED WHILE AN EMPLOYEE OR
WHILE THE OPTION REMAINS EXERCISABLE, THE OPTIONEE OR THE EXECUTOR OR
ADMINISTRATOR OF THE ESTATE OF THE OPTIONEE (AS THE CASE MAY BE), OR THE PERSON
OR PERSONS TO WHOM THE OPTION SHALL HAVE BEEN TRANSFERRED (IF SUCH TRANSFER WAS
MADE IN COMPLIANCE WITH THE PLAN AND SECTION 7 OF THIS AGREEMENT), SHALL HAVE
THE RIGHT, PRIOR TO THE EARLIER OF (i) THE EXPIRATION OF THE OPTION OR (ii) ONE
YEAR FROM THE DATE OF THE OPTIONEE'S DEATH OR TERMINATION DUE TO SUCH DISABILITY
TO EXERCISE THE OPTION TO THE EXTENT THAT IT WAS EXERCISABLE AND UNEXERCISED ON
THE DATE OF DEATH OR TERMINATION, SUBJECT TO ANY OTHER LIMITATION ON EXERCISE IN
EFFECT AT THE DATE OF EXERCISE.
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4. OPTIONEE'S AGREEMENT. THE OPTIONEE AGREES TO ALL THE TERMS
STATED IN THIS AGREEMENT, AS WELL AS TO THE TERMS OF THE PLAN (WHICH SHALL
CONTROL IN CASE OF CONFLICT WITH THIS AGREEMENT), A COPY OF WHICH IS AVAILABLE
FROM HUMAN RESOURCES.
5. WITHHOLDING. THE OPTIONEE CONSENTS TO WITHHOLDING FROM THIS
COMPENSATION OF ALL APPLICABLE PAYROLL AND INCOME TAXES WITH RESPECT TO THE
OPTION. IF THE OPTIONEE IS NO LONGER EMPLOYED BY THE CORPORATION AT THE TIME ANY
APPLICABLE TAXES WITH RESPECT TO THE OPTION ARE DUE AND MUST BE REMITTED BY THE
CORPORATION, THE OPTIONEE AGREES TO PAY APPLICABLE TAXES TO THE CORPORATION, AND
THE CORPORATION MAY DELAY ISSUANCE OF A CERTIFICATE UNTIL PROPER PAYMENT OF SUCH
TAXES HAS BEEN MADE BY THE OPTIONEE. IF THE COMMITTEE SO APPROVES AT THE TIME OF
EXERCISE, THE OPTIONEE MAY SATISFY HIS OBLIGATIONS UNDER THIS SECTION 5 BY (i)
MAKING AN ELECTION, NOTICE OF WHICH SHALL BE IN WRITING AND PROMPTLY DELIVERED
TO THE COMMITTEE, AND TENDERING PREVIOUSLY-ACQUIRED SHARES OF COMMON STOCK OR
HAVING SHARES OF COMMON STOCK WITHHELD FROM THE SHARES OF COMMON STOCK TO BE
RECEIVED UPON EXERCISE, PROVIDED THAT THE SHARES HAVE AN AGGREGATE FAIR MARKET
VALUE ON THE DATE OF EXERCISE OF THE OPTION SUFFICIENT TO SATISFY IN WHOLE OR IN
PART THE APPLICABLE WITHHOLDING TAXES; OR (ii) UTILIZING THE CASHLESS EXERCISE
PROCEDURE DESCRIBED IN SECTION 2(c). EXCEPT AS PERMITTED UNDER RULE 16b-3
PROMULGATED UNDER THE EXCHANGE ACT, IF THE OPTIONEE IS SUBJECT TO THE XXXXXXX
XXXXXXX RESTRICTION OF SECTION 16(b) OF THE EXCHANGE ACT, THE OPTIONEE MAY USE
COMMON STOCK TO SATISFY THE APPLICABLE WITHHOLDING REQUIREMENTS ONLY IF NOTICE
OF ELECTION TO SO USE COMMON STOCK IS GIVEN OR BECOMES EFFECTIVE WITHIN THE
"WINDOW PERIODS" SET FORTH IN RULE 16b-3, OR IF SUCH ELECTION IS IRREVOCABLE AND
MADE AT LEAST SIX MONTHS PRIOR TO THE DATE OF THE EXERCISE OF THE OPTION.
6. RIGHTS AS SHAREHOLDER. THE OPTIONEE SHALL HAVE NO RIGHTS AS A
SHAREHOLDER OF THE CORPORATION WITH RESPECT TO ANY OF THE SHARES COVERED BY THE
OPTION UNTIL THE ISSUANCE OF A STOCK CERTIFICATE OR CERTIFICATES UPON THE
EXERCISE OF THE OPTION, AND THEN ONLY WITH RESPECT TO THE SHARES REPRESENTED BY
SUCH CERTIFICATE OR CERTIFICATES. NO ADJUSTMENT SHALL BE MADE FOR DIVIDENDS OR
OTHER RIGHTS WITH RESPECT TO SUCH SHARES FOR WHICH THE RECORD DATE IS PRIOR TO
THE DATE SUCH CERTIFICATE OR CERTIFICATES ARE ISSUED.
7. NON-TRANSFERABILITY OF OPTION. THE OPTION SHALL NOT BE
TRANSFERRED IN ANY MANNER OTHER THAN BY WILL, THE LAWS OF DESCENT OR
DISTRIBUTION OR PURSUANT TO A QUALIFIED DOMESTIC RELATIONS ORDER AS DEFINED BY
THE CODE OR TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT, OR THE RULES
THEREUNDER. DURING THE LIFETIME OF THE OPTIONEE, THE OPTION SHALL BE EXERCISED
ONLY BY THE OPTIONEE. NO TRANSFER OF THE OPTION SHALL BE EFFECTIVE TO BIND THE
CORPORATION UNLESS THE CORPORATION SHALL HAVE BEEN FURNISHED WITH WRITTEN NOTICE
THEREOF AND SUCH EVIDENCE AS THE CORPORATION MAY DEEM NECESSARY TO ESTABLISH THE
VALIDITY OF THE TRANSFER AND THE ACCEPTANCE BY THE TRANSFEREE OF THE TERMS AND
CONDITIONS OF THE OPTION.
8. COMPLIANCE WITH SECURITIES, TAX AND OTHER LAWS. THE OPTION MAY
NOT BE EXERCISED IF THE ISSUANCE OF SHARES UPON SUCH EXERCISE WOULD CONSTITUTE A
VIOLATION OF ANY APPLICABLE FEDERAL OR STATE SECURITIES LAW OR ANY OTHER LAW OR
VALID REGULATION. AS A CONDITION TO EXERCISE OF THE OPTION, THE CORPORATION MAY
REQUIRE THE OPTIONEE, OR ANY PERSON ACQUIRING THE RIGHT TO EXERCISE THE OPTION,
TO MAKE ANY REPRESENTATION OR
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WARRANTY THAT THE CORPORATION DEEMS TO BE NECESSARY UNDER ANY APPLICABLE
SECURITIES, TAX, OR OTHER LAW OR REGULATION.
9. ADJUSTMENTS. IN THE EVENT THAT THE COMMITTEE SHALL DETERMINE
THAT ANY DIVIDEND OR OTHER DISTRIBUTION (WHETHER IN THE FORM OF CASH, COMMON
STOCK, OTHER SECURITIES, OR OTHER PROPERTY), RECAPITALIZATION, STOCK SPLIT,
REVERSE STOCK SPLIT, REORGANIZATION, MERGER, CONSOLIDATION, SPLIT-UP, SPIN-OFF,
COMBINATION, REPURCHASE, OR EXCHANGE OF COMMON STOCK OR OTHER SECURITIES OF THE
CORPORATION, ISSUANCE OF WARRANTS OR OTHER RIGHTS TO PURCHASE COMMON STOCK OR
OTHER SECURITIES OF THE CORPORATION, OR OTHER SIMILAR CORPORATE TRANSACTION OR
EVENT AFFECTS THE COMMON STOCK SUCH THAT AN ADJUSTMENT IS DETERMINED BY THE
COMMITTEE TO BE APPROPRIATE IN ORDER TO PREVENT DILUTION OR ENLARGEMENT OF THE
BENEFITS OR POTENTIAL BENEFITS INTENDED TO BE MADE AVAILABLE BY THE GRANT OF THE
OPTION, THE COMMITTEE IS PERMITTED TO ADJUST THE TERMS OF THE OPTION AS PROVIDED
IN THE PLAN.
10. CHANGE OF CONTROL. EXCEPT AS PROVIDED BELOW, IN THE EVENT OF A
CHANGE OF CONTROL, EACH OPTION SHALL BE CANCELED IN EXCHANGE FOR PAYMENT IN CASH
OF AN AMOUNT EQUAL TO THE EXCESS OF THE CHANGE OF CONTROL PRICE OVER THE
EXERCISE PRICE THEREOF. NOTWITHSTANDING THE IMMEDIATELY PRECEDING SENTENCE, NO
CANCELLATION, CASH SETTLEMENT OR ACCELERATION OF VESTING SHALL OCCUR WITH
RESPECT TO ANY OPTION IF THE COMMITTEE REASONABLY DETERMINES IN GOOD FAITH PRIOR
TO THE OCCURRENCE OF A CHANGE OF CONTROL THAT SUCH OPTION SHALL BE HONORED OR
ASSUMED, OR NEW RIGHTS SUBSTITUTED THEREFOR (SUCH HONORED, ASSUMED OR
SUBSTITUTED OPTION HEREINAFTER CALLED AN "ALTERNATIVE OPTION"), BY A
PARTICIPANT'S EMPLOYER (OR THE PARENT OR A SUBSIDIARY OF SUCH EMPLOYER)
IMMEDIATELY FOLLOWING THE CHANGE OF CONTROL, PROVIDED THAT ANY SUCH ALTERNATIVE
OPTION MUST:
(i) BE BASED ON STOCK WHICH IS TRADED ON
AN ESTABLISHED SECURITIES MARKET, OR WHICH WILL BE SO
TRADED WITHIN SIXTY (60) DAYS OF THE CHANGE OF CONTROL;
(ii) PROVIDE SUCH PARTICIPANT (OR EACH
PARTICIPANT IN A CLASS OF PARTICIPANTS) WITH RIGHTS AND
ENTITLEMENT SUBSTANTIALLY EQUIVALENT TO OR BETTER THAN
THE RIGHTS, TERMS AND CONDITIONS APPLICABLE UNDER SUCH
OPTION, INCLUDING, BUT NOT LIMITED TO, AN IDENTICAL OR
BETTER EXERCISE OR VESTING SCHEDULE AND IDENTICAL OR
BETTER TIMING AND METHODS OF PAYMENT; AND
(iii) HAVE SUBSTANTIALLY EQUIVALENT
ECONOMIC VALUE TO SUCH OPTION (DETERMINED AT THE TIME OF
THE CHANGE OF CONTROL).
"CHANGE OF CONTROL PRICE" MEANS THE HIGHEST PRICE PER SHARE OFFERED IN
CONJUNCTION WITH ANY TRANSACTION RESULTING IN A CHANGE OF CONTROL (AS DETERMINED
IN GOOD FAITH BY THE COMMITTEE IF ANY PART OF THE OFFERED PRICE IS PAYABLE OTHER
THAN IN CASH) OR, IN THE CASE OF A CHANGE OF CONTROL OCCURRING SOLELY BY REASON
OF A CHANGE IN THE COMPOSITION OF THE BOARD, THE HIGHEST FAIR MARKET VALUE OF
THE STOCK ON ANY OF THE 30 TRADING DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH
A CHANGE OF CONTROL OCCURS.
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11. NO RIGHT TO EMPLOYMENT. THE GRANTING OF THE OPTION DOES NOT
CONFER UPON THE OPTIONEE ANY RIGHT TO BE RETAINED AS AN EMPLOYEE.
12. AMENDMENT AND TERMINATION OF OPTION. EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, THE CORPORATION MAY NOT, WITHOUT THE CONSENT OF THE
OPTIONEE, ALTER OR IMPAIR ANY OPTION GRANTED UNDER THE PLAN. THE OPTION SHALL BE
CONSIDERED TERMINATED IN WHOLE OR IN PART, TO THE EXTENT THAT, IN ACCORDANCE
WITH THE PROVISIONS OF THE PLAN, IT CAN NO LONGER BE EXERCISED FOR SHARES
ORIGINALLY SUBJECT TO THE OPTION.
13. NOTICES. EVERY NOTICE RELATING TO THIS AGREEMENT SHALL BE IN
WRITING AND IF GIVEN BY MAIL SHALL BE GIVEN BY REGISTERED OR CERTIFIED MAIL WITH
RETURN RECEIPT REQUESTED. ALL NOTICES TO THE CORPORATION OR THE COMMITTEE SHALL
BE SENT OR DELIVERED TO THE TREASURER OF THE CORPORATION AT THE CORPORATION'S
HEADQUARTERS. ALL NOTICES BY THE CORPORATION TO THE OPTIONEE SHALL BE DELIVERED
TO THE OPTIONEE PERSONALLY OR ADDRESSED TO THE OPTIONEE AT THE OPTIONEE'S LAST
RESIDENCE ADDRESS AS THEN CONTAINED IN THE RECORDS OF THE CORPORATION OR SUCH
OTHER ADDRESS AS THE OPTIONEE MAY DESIGNATE. EITHER PARTY BY NOTICE TO THE OTHER
MAY DESIGNATE A DIFFERENT ADDRESS TO WHICH NOTICES SHALL BE ADDRESSED. ANY
NOTICE GIVEN BY THE CORPORATION TO THE OPTIONEE AT THE OPTIONEE'S LAST
DESIGNATED ADDRESS SHALL BE EFFECTIVE TO BIND ANY OTHER PERSON WHO SHALL ACQUIRE
RIGHTS HEREUNDER.
IN WITNESS WHEREOF, THE CORPORATION, BY ITS DULY AUTHORIZED
OFFICER, AND THE OPTIONEE HAVE EXECUTED THIS AGREEMENT EFFECTIVE AS OF THE DATE
AND YEAR FIRST ABOVE WRITTEN.
CREDIT ACCEPTANCE CORPORATION
BY:/S/ XXXXX X. XXXXXXX
----------------------------------
ITS: CHIEF OPERATING OFFICER
---------------------------------
OPTIONEE:
BY:/S/ XXXXX XXXXXXXXX
----------------------------------
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EXHIBIT C
OPTION VESTING SCHEDULE
Set forth below is the schedule of the vesting of the Options. Vesting
of Options is dependent upon the achievement of CACNA achieving the EVA goals
set forth below.
The calculation utilized in determining the EVA of CACNA for purposes of
this Option Vesting Schedule will be the same calculation utilized in
determining XxXxxxxxx'x Executive Bonus in accordance with paragraph 5 (c) of
the Employment Agreement. The EVA calculation of CACNA will be adopted by the
Compensation Committee of the Board of Directors from time to time, and will be
the identical calculation used to determine the executive bonus for all other
CAC executives.
Vesting Schedule
The corresponding Options will vest on the date CACNA's EVA calculation
meets or exceeds the following targets.
CACNA EVA calculation(1) Incremental Number Vested Cumulative Number
------------------------- -----------------
Vested
------
+$12,115,390 200,000 200,000
+$17,115,390 200,000 400,000
+$22,115,390 300,000 700,000
+$27,115,390 300,000 1,000,000
--------
(1) The EVA Calculation refers to the annual EVA of CACNA (not a cumulative or
change calculation). If the EVA calculation falls below the base year
calculation (originally a negative 7,884,610), this base line figure must be
recovered first by subtracting the shortfall from the following year's EVA
calculation.
13
EXHIBIT D
MAY 24, 1999 PROMISSORY NOTE
(PLEASE SEE ATTACHED)
14
EXHIBIT D
PROMISSORY NOTE (NOTE 2)
PROMISSORY NOTE
$1,500,000 Southfield, Michigan
April 19, 2001
Xxxxx XxXxxxxxx, an Ohio resident (the "Borrower"), having a residence
address at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx, promises to pay to the order of
Credit Acceptance Corporation, a Michigan corporation (the "Note Holder"),
having a business address at Silver Triangle Building, 00000 Xxxx Xxxxxx Xxxx
Xxxx, Xxxxx 0000, Xxxxxxxxxx Xxxxxxxx 00000, the principal sum of $1,500,000
with interest on the unpaid principal balance accruing from January 1, 2002,
until paid, at the annual rate of 5.22% simple interest.
DUE DATE; AGREEMENT TO PAY. The Borrower agrees to repay to the Note
Holder at the business address set forth above the entire principal amount
together with simple interest on the principal amount at the annual rate of
5.22% on or before April 19, 2011. Interest shall accrue from January 1, 2002 on
the unpaid principal balance until payment in full.
REMEDIES. If suit is brought to collect the indebtedness evidenced by
this Promissory Note, the Note Holder shall be entitled to collect all
reasonable costs and expenses of suit, including, but not limited to, reasonable
attorneys' fees.
OPTIONAL PREPAYMENT. The Borrower may prepay the principal amount
outstanding in whole or in part without premium or penalty. Any payments made on
or before December 31, 2001 shall be applied entirely to the $1,500,000
principal amount. After December 31, 2001, any partial prepayment shall be
applied first to accrued interest and then to principal amount. Prepayments may
be made in whole or in part without penalty at any time.
MAXIMUM INTEREST UNDER LAW. In no event shall the interest rate charged
or received under this Promissory Note at any time exceed the maximum interest
rate permitted under applicable law. Payments received by the Note Holder under
this Promissory Note which would otherwise cause the interest rate under this
Promissory Note to exceed such maximum interest rate shall, to the extent of
such excess, be deemed prepayments of principal and applied as such as provided
in this Promissory Note. If the Note Holder shall reasonably determine that the
legal authority to charge the interest rate under this Promissory Note has been
adjudicated to be usurious or otherwise limited by statute, or law, then the
interest rate hereunder shall be reduced to the limit of such validity as
provided by statute or law, so that in no event shall any exaction of interest
be possible under this Note in excess of the limit of such validity.
15
OPPORTUNITY TO CONSULT COUNSEL. The Borrower acknowledges that it has
had an opportunity to consult with counsel of its own choosing regarding this
Promissory Note.
GENERAL. Presentment, notice of dishonor, and protest are waived by all
makers, sureties, guarantors and endorsers of this Promissory Note. This
Promissory Note shall be the joint and several obligation of all makers,
sureties, guarantors and endorsers, and shall be binding upon them and their
successors and assigns. Any notice provided for in this Promissory Note shall be
in writing and shall be delivered or mailed, and if mailed, shall be deemed
given when deposited in the mail first-class, postage prepaid, registered or
certified mail, return receipt requested, sent to the Borrower's and Note
Holder's respective addresses specified in this Promissory Note or such other
address as the addressee may have specified in a notice duly given to the
sender. This Promissory Note shall be construed in accordance with the laws of
the State of Michigan.
XXXXX XXXXXXXXX
By: /S/ XXXXX XXXXXXXXX
------------------------
16
[CAC LOGO]
CREDIT ACCEPTANCE CORPORATION
EXHIBIT F
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This confidentiality and non-competition agreement (the "Agreement") is entered
into between Xxxxx XxXxxxxxx (hereinafter referred to as "I") and Credit
Acceptance Corporation (hereinafter referred to as the "Company"). All
capitalized terms in this Agreement shall have the same meaning assigned to them
in the Employment Agreement.
I understand and acknowledge that during my employment with the Company, certain
information not generally known in the industry in which the Company is or may
be engaged in has been and will be disclosed to me about the business,
customers, suppliers, products, services and financial statements of the
Company, including without limitation, the dealer/customer lists, sales, costs,
records, products, property, discounts, computer programs, forms, methods of
billing, methods of collecting accounts, computer software, marketing, other
corporate activities of the Company and other confidential information relative
to the Company's actual or prospective dealers/customers, employees, and
investors (hereinafter collectively referred to as "Confidential Information").
I understand and agree that this Agreement does not and nothing in it shall be
construed to create an employment contract between myself and the Company, and
that I am an at-will employee, and that my employment with the Company may be
terminated at any time with or without cause.
In consideration of the understandings set forth above and in consideration of
my continued employment by the Company and the compensation paid or to be paid
for my services by the Company, the Company and I agree and covenant as follows:
1. I will not in any way, directly or indirectly, use, disseminate,
disclose, lecture upon or publish any Confidential Information.
2. I will sign all papers and do such other acts as the Company may deem
reasonably necessary or desirable and may reasonably require of me to
protect its rights to such confidential Information.
3. During and after such employment by the Company, I will not divulge,
reproduce or exhibit to others or appropriate for my own use or benefit
or for the use and benefit of others any Confidential Information I may
receive, acquire or develop, or have received, acquired or developed,
during my employment by the Company which relates to the Company, unless
and until such information becomes generally available to the public
through no fault of my own or unless such disclosure or appropriation is
authorized in writing by the Company.
4. I shall not in any manner knowingly and intentionally disrupt or attempt
to disrupt any relationship which the Company may have with its
employees, suppliers, dealers, customers, lessors, banks, consultants
and other persons or entities with whom business dealings or ongoing
relationships exist, nor induce any of such parties to terminate or
otherwise alter the manner in which such relationships are being
conducted with the Company.
17
5. I shall at no time remove from the Company's premises or retain without
the Company's written consent any of the Company's confidential
Information, unpublished records, books of account, books, corporate
documents, correspondence, papers, memoranda, notes, manuals, computer
software, or copies of or extracts from any of the foregoing.
6. Upon termination of my employment, I shall promptly deliver to the
Company all Confidential Information, records, books of account, books,
corporate documents, correspondence, papers, memoranda, notes, manuals,
computer software, or copies of or extracts from any of the foregoing
and all other property of the Company, which are then in my possession
or under my control, unless authorized in writing by the Company to
retain any such materials.
7. I acknowledge and agree that the Company will be irreparably harmed
should I, in any manner, enter into competition with the Company. During
the period of my employment with the Company and for a period of two (2)
years commencing on the date of my termination of employment with the
Company for whatever reason, I will not, directly or indirectly, in any
capacity whatsoever (including, but not limited to, as an officer,
director, employee, partner, agent, representative, advisor, consultant,
or shareholder of any person, firm, partnership, corporation,
association or any entity):
a. Solicit the trade or patronage of, disclose the name of, or take
any action that shall cause the interruption or termination of
the business relationship between the Company and any existing
or prospective dealer, customer or supplier of the Company;
b. Directly or indirectly engage in, own, manage, finance, operate,
joint control, participate in, or derive any benefits
whatsoever, from any business engaged in any activity that is in
competition in any manner with the business of the Company,
and/or its successors, within the geographic and market location
in which the Company conducts its business; or
c. Induce or attempt to induce away, or aid, assist or abet any
other party or person in inducing or attempting to induce away,
any other employee of the Company from his or her employment
with the Company.
8. I hereby acknowledge that breach of this Agreement shall result in
irreparable harm to the Company, for which there is no adequate remedy
at law and for which the ascertainment of damages will be difficult. As
a result, the Company shall be entitled without having to prove the
inadequacy of other remedies at law to specific enforcement of this
Agreement and any money damages as well as both temporary relief
(without notice or bond) and permanent injunctive relief (without being
required to post bond or other security).
9. Nothing in this Agreement will be construed or interpreted to require me
to cause the Dealership or any of the Existing Businesses to purchase
any products or services from the Division or the Company or to prevent
the Dealership or any of the Existing Businesses from offering to their
retail customers financing programs provided by or through any financing
sources other than the Division or CAC or to prevent me from owning,
controlling, or managing one or more of the Existing Businesses.
10. This agreement shall be binding on my heirs, devisees, executors,
administrators or other legal representatives and assigns and shall
inure to the benefit of the Company and its successors and assigns
interest.
18
11. I hereby acknowledge that this Agreement may be assigned without my
consent in connection with a sale, transfer, or other assignment of all
or substantially all of the assets of, or merger of the Company.
12. I have read and understand and hereby agree to the foregoing and
acknowledge receipt of one copy of this Agreement.
13. Each paragraph and provision of this Agreement is servarable from the
Agreement, and if one provision or part thereof is declared invalid, the
remaining provisions shall nevertheless remain in full force and effect.
14. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of Michigan, without regard to any
principles of conflict of laws that would require the application of the
law of another jurisdiction.
Date:
--------------------- ---------------------------------------------
Signature
CREDIT ACCEPTANCE CORPORATION
By: /S/ XXXXX X. XXXXXXX
-----------------------------------------
Its: CHIEF OPERATING OFFICER
----------------------------------------
19
EXHIBIT G
CREDIT ACCEPTANCE CORPORATION
ALTERNATIVE DISPUTE RESOLUTION ("ADR") POLICY AND PROCEDURE
I. COVERAGE
A. GENERALLY
This ADR Policy and Procedure is the sole and exclusive method by which
an employee ("You", or an equivalent personal pronoun) and the Company
(collectively, "the parties") are required to resolve the covered disputes
arising out of or related to your employment with the Company or the termination
of that employment, each of which, as described below, is referred to as an
"employment-related dispute", including such disputes arising out of or related
to any of the following subjects:
B. COVERED CLAIMS
1. Any disciplinary action or other adverse employment
decision of the Company or any statement related to your employment, your
performance or your termination; which action, decision, or statement you claim
is wrongful, in violation of, and arises out of or is related to any current or
future federal, state or local civil rights laws, fair employment laws, wage and
hour laws, fair labor or employment standards laws, laws against discrimination,
equal pay laws, wage and salary payment laws, laws in regard to employment
benefits or protections, family and medical leave laws, and whistleblower laws,
including by way of example, but not limited to, the federal Civil Rights Acts
of 1886, 1971, 1964 and 1991, the Age Discrimination in Employment Act of 1967,
the Fair Labor Standards Act, the Americans with Disabilities Act of 1990, the
Family and Medical Leave Act, and the Employee Retirement Income Security Act,
as they have been or may be amended from time to time; or
2. Disputes over the arbitrability of any controversy or
claim which arguably is or may be subject to this ADR Policy and Procedure.
C. CLAIMS NOT COVERED.
1. Claims you may have for workers' compensation or
unemployment compensation benefits are not covered by this ADR Policy and
Procedure.
2. Also not covered are claims by CAC for injunctive and/or
other equitable relief, including but not limited to, claims for unfair
competition and/or the use and/or unauthorized disclosure of trade secrets or
confidential information, as to which you understand and agree that CAC may seek
and obtain relief from a court of competent jurisdiction.
3. Claims with an aggregate value of less than one thousand
($1000) dollars are not covered by this ADR Policy and Procedure.
20
II. PRE-ADR PROCEDURES
A. WRITTEN NOTICE OF CLAIM/TIMELINESS - In order to initiate an ADR
proceeding pursuant to this ADR Policy and Procedure, the aggrieved party must
notify the other party by giving written notice of a claim. Written notice of a
claim must be provided within one year of the date the aggrieved party first
discovers or has knowledge of the event or series of events that give rise to
the claim. Failure to provide written notice as required in this Part will
extinguish the claim in its entirety and will be deemed a waiver of the claim
even if there is a federal or state statute of limitations which would have
given more time to pursue the claim. This notice provision is not intended to
extend the applicable statute of limitations such that any claims that would be
time barred had the claim been brought in a court action, will remain time
barred in the arbitration process.
1. The Company will provide written notice to me at the
most current address reflected in my personnel file.
2. You will provide written notice to the Company at Credit
Acceptance Corporation, Silver Triangle Building, 00000 Xxxx Xxxxxx Xxxx Xxxx,
Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000-0000. Attention: Corporate legal and
Compliance
3. Any written notice the Company or you provide must be
sent by certified or registered mail, return receipt requested. The notice shall
be effective on the date it is mailed.
B. CONTENTS OF WRITTEN NOTICE OF CLAIM - The written notice shall
contain the following:
1. A statement describing the claim that is being asserted;
2. A statement of the facts upon which the claim is based;
and
3. The damages, if any, that are being claimed.
III. STEP 1: NEGOTIATION
If you have an employment-related dispute, you should discuss it with
your immediate supervisor, or the person to whom your immediate supervisor
reports, or your human resources representative. You and the Company shall
attempt in good faith to negotiate a resolution of any employment-related
dispute.
IV. STEP 2: MEDIATION
If an employment-related dispute cannot be settled through negotiation
and remains unresolved 15 days after it is asserted, you or the Company may
submit the dispute to mediation and the parties shall attempt in good faith to
resolve the dispute by mediation, under the mediation procedure of the American
Arbitration Association ("AAA"). Unless the parties agree otherwise in writing,
the mediation shall be conducted by a single mediator, and the mediator shall be
selected from the AAA panel pursuant to AAA rules. The mediation shall be
conducted in the city and state in which the Company office in which you
work(ed) is located. Unless the
21
parties agree otherwise, the cost of the mediator's reasonable professional fees
and expenses and any reasonable administrative fee will be paid by the Company.
V. STEP 3: BINDING ARBITRATION
A. Generally any and all claims covered by this ADR Policy and
Procedure, not resolved in Steps 1 and 2 above, shall be resolved solely and
exclusively through arbitration as provided herein. Except as provided elsewhere
in this ADR Policy and Procedure, neither one of us will initiate or prosecute
any lawsuit or administrative action (other than an administrative charge of
discrimination) that is in any way related to any claim covered by this ADR
Policy and Procedure. Either party may compel arbitration pursuant to this ADR
Policy and Procedure and may enforce any Arbitration Award made pursuant to the
ADR Policy and Procedure in any court of competent jurisdiction.
B. PRELIMINARY ARBITRATION PROCEDURES
1. TIMING/FORUM/LOCATION. If an employment-related dispute
cannot be settled through mediation and remains unresolved 45 days after the
appointment of a mediator, you or the Company may submit the dispute to
arbitration and the dispute shall be settled in arbitration by a single
arbitrator in accordance with the applicable rules for arbitration of employment
disputes of the then-current Model Employment Arbitration Procedures of the
American Arbitration Association ("AAA"). The arbitration shall take place in or
near the city and state in which the Company office in which you work(ed) is
located.
2. REPRESENTATION. It is understood that both the Company
and you have the right to choose -- and to be represented by -- legal counsel or
any other representative at any and all stages of the arbitration proceeding.
3. QUALIFICATIONS AND SELECTION OF THE ARBITRATOR.
a. QUALIFICATIONS -- The Arbitrator ("Arbitrator") selected
pursuant to the provisions of this Agreement shall be licensed to practice law
in the state in which the arbitration hearing is held.
b. SELECTION PROCESS -- Each party shall receive a list of
the names of the same six arbitrators selected by the American Arbitration
Association ("AAA"). Each party shall strike any and all names on the list that
it deems unacceptable. In the event only one common name remains on each list of
the parties, that remaining person shall be appointed as the Arbitrator. In the
event more than one common name remains on each list of the parties, then the
parties shall strike names alternately, with the Company making the first
strike, until only one name remains, and that remaining person shall be
appointed as the Arbitrator. In the event no common name appears after the
initial striking of names, then an additional list of six arbitrators shall be
supplied by the AAA and the striking process shall resume until an Arbitrator is
selected.
22
4. DISCOVERY
a. DEPOSITIONS. Each party shall have the right to take the
deposition of one person and of any witness the other party designates as an
expert to testify at trial.
b. PRODUCTION OF DOCUMENTS. Each party shall have the right
to request the production of documents from the other party.
c. SUBPOENA. Each party shall have the right to subpoena
witnesses to attend the hearing and the production of documents pursuant to the
course of the arbitration.
d. ADDITIONAL DISCOVERY PROCEDURES. The arbitrator may, at
his or her sole discretion and only upon a showing of substantial need, order
additional discovery beyond what is explicitly provided for in this ADR Policy
and Procedure.
e. NOTIFICATION OF WITNESSES AND EXHIBITS. In order to use
the testimony of any witnesses, including any expert, or any exhibits, a party
must supply a written list of any and all witnesses and copies of all exhibits
intended to be used at the arbitration hearing no less than 40 days prior to the
arbitration. The list of witnesses and copies of exhibits must be supplied to
the other party either in person or through certified or registered mail, return
receipt requested.
f. PRE-HEARING DISPUTES. In furtherance of the assurance of
procedural fairness, the Arbitrator shall have the jurisdiction and authority to
hear and rule on any pre-hearing disputes including (but not limited to any
discovery) which may arise between the parties to the arbitration.
C. ARBITRATION PROCEDURES.
1. GENERALLY. Arbitration shall be in accord with the
then-current Model Employment Arbitration Procedures of the AAA.
2. LAW TO BE APPLIED. The Arbitrator shall apply the
substantive law of the state in which the claim arose, or federal law, or both,
as deemed applicable and relevant by the Arbitrator for the claim asserted.
3. MOTION TO DISMISS AND SUMMARY JUDGMENT. The Arbitrator
shall have the jurisdiction and authority to hear and decide a Motion to Dismiss
or a Motion for Summary Judgment by either party. The Arbitrator shall apply the
Federal Rules of Civil Procedure in hearing and deciding such a Motion.
4. STENOGRAPHIC RECORD. Any party desiring a stenographic
record of the arbitration hearing shall make arrangements directly with a
stenographer and shall notify the other parties of these arrangements in advance
of the hearing. The requesting party or parties shall pay the cost of the
record. If the transcript is agreed by the parties to be, or determined by the
Arbitrator to be, the official record of the proceeding, it must be made
available to the Arbitrator and to the other parties for inspection at a date,
time, and place determined by the Arbitrator. Either party shall have the right,
at its own expense, to receive a written transcript of all of the arbitration
proceedings.
23
5. POST-HEARING BRIEF. The Arbitrator shall have the
authority to grant leave to either party, upon their request, to file a
post-hearing brief. The Arbitrator shall determine the time limit for filing and
the format and contents of the brief.
6. WRITTEN OPINION. The Arbitrator shall render a written
opinion within 60 days after the date of the closing of the hearing. Unless the
parties agree otherwise, the written opinion shall be in the form typically
rendered in labor arbitrations and executed in the manner required by law.
7. CONFIDENTIALITY OF RESULTS. Unless the parties agree
otherwise, the result of the arbitration shall be confidential, and may not be
disclosed to third parties, including (but not limited to) newspapers or legal
publishers.
D. SCOPE OF THE ARBITRATION AND POWER OF THE ARBITRATOR
1. ARBITRATOR SHALL RESOLVE ALL CLAIMS. Except as otherwise
provided in this Agreement, the Arbitrator shall have exclusive jurisdiction to
hear and resolve any and all claims covered by this ADR Policy and Procedure,
including (but not limited to) disputes relating to the interpretation,
applicability, or formation of this Agreement. Except as otherwise provided
herein, no court or agency -- whether federal, state, local or otherwise --
shall have any jurisdiction to hear or resolve any claims covered by this ADR
Policy and Procedure.
2. SCOPE OF AWARD. Except as otherwise provided herein, the
Arbitrator shall have the authority to award any remedy permitted by law. Except
as provided in the immediately following sentence, the Arbitrator shall have the
jurisdiction and authority to award specific performance to either party
regarding any claim. Notwithstanding the forgoing to the contrary, the
Arbitrator may not award either reinstatement of employment or a promotion.
3. ARBITRATION IS FINAL AND BINDING. The Arbitrator's
opinion will constitute a final and binding resolution of any and all claims
either party may have against the other. Neither party may appeal the results of
the arbitration to any federal, state, local or other court or agency.
E. FEES AND EXPENSES
1. ARBITRATOR'S FEES AND EXPENSES. Except as otherwise
provided in the Agreement, the parties shall share equally any and all fees and
expenses of the Arbitrator. Each party will deposit funds or post other security
for its share of the Arbitrator's fee, in an amount and manner determined by the
Arbitrator, 10 days before the first day of hearing.
2. ATTORNEYS' FEES. Each party shall pay for its own costs
and attorneys' fees, if any. However, in the event a party prevails on a
statutory claim for which attorneys' fees may be awarded to the prevailing
party, or if the parties have a written agreement providing for payment of
attorneys' fees to the prevailing party, the Arbitrator has authority to award
reasonable attorneys' fees to the prevailing party.
3. WITNESS FEES AND EXPENSES. The fees and expenses of a
witness shall be paid by the party producing or subpoenaing such a witness.
24
VI. INTERSTATE COMMERCE
It is understood that Credit Acceptance Corporation is engaged in
transactions involving interstate commerce and that your employment involves
such commerce.
VII. PROVISIONAL REMEDIES
You or the Company may file a complaint or commence a court action to
obtain an injunction to enforce the provisions of this ADR Policy and Procedure
or to seek a preliminary injunction or other provisional relief to maintain the
status quo in aid of or pending the application or enforcement of this ADR
Policy and Procedure. Despite such action, the parties shall continue to
participate in good faith in this ADR Policy and Procedure.
VIII. ADMINISTRATIVE AGENCIES
Nothing in this ADR Policy and Procedure is intended to prevent you from
filing a complaint or charge with any administrative agency, including, but not
limited to, the Equal Employment Opportunity Commission, the Michigan Department
of Civil Rights and/or the National Labor Relations Board.
IX. AT-WILL EMPLOYMENT/WAIVER OF JURY OR COURT TRIAL
This ADR Policy and Procedure does not alter the at-will status of your
employment. Nothing in this ADR Policy and Procedure limits in any way your
right or the Company's right to terminate your employment at any time, for any
or no reason, with or without notice. This ADR Policy and Procedure does not
require the Company to start the arbitration process before taking disciplinary
action of any kind, including without limitation the termination of your
employment. THIS POLICY WAIVES ANY RIGHT THAT YOU OR THE COMPANY MAY HAVE TO A
JURY TRIAL OR A COURT TRIAL OF ANY HEREIN COVERED EMPLOYMENT-RELATED DISPUTE.
X. TERMINATION OF THE ADR POLICY AND PROCEDURE
This ADR Policy and Procedure may be terminated by the Company at any
time by giving you and all other employees to whom this ADR Policy and Procedure
applies at least 90 days written notice of such termination. However, such
termination shall not be effective as to any employment-related dispute arising
out of events that occur on or before the date of termination of this ADR Policy
and Procedure.
XI. SURVIVAL/REQUIREMENTS FOR MODIFICATION OR AMENDMENT
This ADR Policy and Procedure shall survive the termination of your
employment. It can only be modified or amended by a writing signed by the
parties which specifically states an intent to modify or amend this ADR Policy
and Procedure.
25
XII. SOLE AND ENTIRE AGREEMENT
This is the complete Agreement of the parties on the subject of ADR
Policy and Procedure and the within described employment-related disputes. This
ADR Policy and Procedure supersedes any prior or contemporaneous oral or written
understanding on the subject. No party is relying on any representations, oral
or written, on the subject of the affect, enforceability or meaning of this ADR
Policy and Procedure, except as specifically set forth in this ADR Policy and
Procedure.
XIII. CONSIDERATION
The promises by Credit Acceptance Corporation and you to enter into this
ADR Policy and Procedures process and to ultimately, if not resolved otherwise,
arbitrate differences, rather than litigate them before courts or other bodies,
provide consideration for each other. In addition, your hiring by CAC provides
further consideration for this ADR Policy and Procedures Agreement.
XIV. ADR AGREEMENT
By your and the Company's signature on the separate Agreement on
Alternative Dispute Resolution, you and the Company agree that this ADR Policy
and Procedure shall mandatorily apply and be the sole and exclusive method by
which you and the Company are required to resolve the hereinbefore described
employment-related disputes, to the fullest extent permitted and not prohibited
or restricted by law.
Although this ADR Policy and Procedure is common to all subsidiaries and
affiliates of Credit Acceptance Corporation (the "entity"), the common
application of the ADR Agreement and this ADR Policy and Procedure and the
collective reference to the term "Company" do not confer upon any employee any
rights as to any entity against which that employee otherwise would not have
such rights or subject any entity to any obligations to any employee of another
entity towards whom the first entity otherwise would not have any obligation.
XV. CONSTRUCTION/SAVINGS PROVISION
Should any provision of this ADR Policy and Procedure be held invalid,
illegal or unenforceable, you and the Company agree that it shall be deemed to
be modified so that its purpose can lawfully be effectuated and the balance of
this ADR Policy and Procedure shall remain in full force and effect. You and the
Company further agree that the provisions of this ADR Policy and Procedure shall
be deemed severable and the invalidity or enforceability of any provision shall
not affect the validity of enforceability of the other provisions hereof.
XVI. DURATION OF AGREEMENT
I understand and agree that this Agreement will continue in full force
and effect both during my entire period of employment with the Company and, if
applicable, after my termination of employment with the Company.
26
XVII. HEADING FOR CONVENIENCE ONLY
Headings of the sections in this Agreement are inserted for convenience
only and are not to be considered in the construction of any provisions hereof.
XVIII. AGREEMENT IS NOT AN EMPLOYMENT AGREEMENT
This ADR Policy and Procedure shall not be deemed or construed to be a
contract of employment between the Company and me. Nothing in this Agreement
shall be deemed or construed to give me the right to be retained in the employ
of the Company, or to interfere with the Company's right to discharge me at any
time. In addition, this Agreement shall not be deemed or construed to give the
Company the right to require me to remain in its employ or interfere with my
right to terminate my employment at any time.
XIX. VOLUNTARY AGREEMENT
BY YOUR SIGNATURE ON THE SEPARATE AGREEMENT ON ALTERNATIVE DISPUTE
RESOLUTION, YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS ADR POLICY AND
PROCEDURE, THAT YOU UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS
BETWEEN CAC AND YOU RELATING TO THE SUBJECTS COVERED IN THIS ADR POLICY AND
PROCEDURE ARE CONTAINED IN IT, AND THAT YOU HAVE ENTERED INTO THE AGREEMENT
VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY CAC OTHER
THAN THOSE CONTAINED IN THIS ADR POLICY AND PROCEDURE ITSELF.
YOU FURTHER ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS
AGREEMENT WITH YOUR PRIVATE LEGAL COUNSEL AND HAVE AVAILED YOURSELF OF THAT
OPPORTUNITY TO THE EXTENT YOU WISH TO DO SO.
27
Exhibit H
EVA BONUS CALCULATION
EVA Bonus = 1.625% x EVA prior year (if positive) + 3.75% *[EVA current year
minus EVA prior year]
EVA = NOPAT - (WACC x Average Total Capital)
NOPAT = (Adjusted Operating income + interest expense)*(1 - Tax rate)
WACC = [Cost of Equity * (Average Equity/Average Total Capital)] + [Cost of Debt
* (1 - tax rate) * (Average Debt/Average Total Capital)]
Cost of Equity = 30 year US government bond rate + 6% + ((2 x Debt/Equity)/100)
(ie at debt to equity of 2:1 and a US government bond rate of 6% the Cost of
Equity would be 16%)
The debt to equity ratio for purposes of computing the Cost of Equity is equal
to the consolidated debt to equity ratio of CAC
Adjusted Operating Income = Pre tax operating income of Corporation included in
CAC's consolidated results + any bonus accrued pursuant to this agreement.
28
EXHIBIT I
GUARANTY
GUARANTY. Credit Acceptance Corporation ("CAC"), of 00000 Xxxx Xxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, advanced to XxXxxxxxx Chevrolet, Inc, an Ohio
corporation and its successors (the "Borrower"), $850,000 plus interest pursuant
to the terms and conditions of a Promissory Note ("Note"), dated May 24, 1999
(referred to collectively as "Liabilities"). The undersigned (the "Guarantor"),
being the President of the Borrower and having determined that executing this
Guaranty is in his and the Borrowers best interest and to his and the Borrowers
financial benefit, hereby absolutely and unconditionally guaranties to CAC, as
primary obligor and not merely as surety, that the Liabilities will be paid when
due, whether by acceleration or otherwise. The Guarantor will not only pay the
Liabilities, but will also reimburse CAC for accrued and unpaid interest, and
any expenses, including reasonable attorneys' fees, that CAC may pay in
collecting from the Borrower or the Guarantor, and for liquidating any
collateral.
LIMITATION: The Guarantor's obligation under this Guaranty shall not exceed the
principal amount of EIGHT HUNDRED AND FIFITY THOUSAND and 00/100 DOLLARS
($850,000), plus interest, expenses, and fees. Unless otherwise specified below,
the Guarantor's obligation shall be payable in U.S. Dollars.
CONTINUED RELIANCE: CAC may continue to make loans or extend credit to the
Borrower based on this Guaranty until it receives written notice of termination
from the Guarantor. That notice shall be effective at the opening of CAC for
business on the day after receipt of the notice. If terminated, the Guarantor
will continue to be liable to CAC for any Liabilities created, assumed or
committed to at the time the termination becomes effective, and all subsequent
renewals, extensions, modifications and amendments of the Liabilities.
SECURITY. This guaranty shall be unsecured.
ACTION REGARDING BORROWER: If any monies become available that CAC can apply to
the Liabilities, CAC may apply them in any manner it chooses, including but not
limited to applying them against liabilities which are not covered by this
Guaranty. CAC may take any action against the Borrower, any collateral, or any
other person liable for any of the Liabilities. CAC may release the Borrower or
anyone else from the Liabilities, either in whole or in part, or release any
collateral, and need not perfect a security interest in any collateral. CAC does
not have to exercise any rights that it has against the Borrower or anyone else,
or make any effort to realize on any collateral or right of set-off. If the
Borrower requests more credit or any other benefit, CAC may grant it and CAC may
grant renewals, extensions, modifications and amendments of the Liabilities and
otherwise deal with the Borrower or any other person as CAC sees fit and as if
this Guaranty were not in effect. The Guarantor's obligations under this
Guaranty shall not be released or affected by (a) any act or omission of CAC,
(b) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of the Borrower, or any receivership,
insolvency, bankruptcy, reorganization, or other similar proceedings affecting
the Borrower or any of its assets, or (c) any change in the composition or
structure of the Borrower or Guarantor, including a merger or consolidation with
any other person or entity.
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NATURE OF GUARANTY: This Guaranty is a guaranty of payment and not of
collection. Therefore, CAC may insist that the Guarantor pay immediately, and
CAC is not required to attempt to collect first from the Borrower, any
collateral, or any other person liable for the Liabilities. The obligation of
the Guarantor shall be subject to no conditions of any kind, and shall be
absolute, regardless of the unenforceability of any provisions of any agreement
between the Borrower and CAC, or the existence of any defense, setoff or
counterclaim which the Borrower may assert.
OTHER GUARANTORS: If there is more than one Guarantor, the obligations under
this Guaranty shall be joint and several. In addition, each Guarantor shall be
jointly and severally liable with any other guarantor of the Liabilities. If CAC
elects to enforce its rights against less than all guarantors of the
Liabilities, that election shall not release Guarantor from its obligations
under this Guaranty. The compromise or release of any of the obligations of any
of the other guarantors or the Borrower shall not serve to waive, alter or
release the Guarantor's obligations. This Guaranty is not conditioned on anyone
else executing this or any other guaranty.
ACCELERATION: In the event of the voluntary or involuntary liquidation, sale or
other disposition of all or substantially all of the assets of the Borrower, or
any receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings affecting the Borrower or any of its assets, the Guarantor agrees
that all Liabilities due under the Note will become immediately due and payable
to CAC.
WAIVER OF SUBROGATION: The Guarantor expressly waives any and all rights of
subrogation, contribution, reimbursement, indemnity, exoneration, implied
contract, recourse to security or any other claim (including any claim, as that
term is defined in the federal Bankruptcy Code, and any amendments) which the
Guarantor may now have or later acquire against the Borrower, any other entity
directly or contingently liable for the Liabilities or against the Collateral,
arising from the existence or performance of the Guarantor's obligations under
this Guaranty.
The Guarantor further agrees that should any payments to CAC on the Liabilities
be in whole or in part, invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy act or code, state or federal law, common law or equitable
doctrine, this Guaranty and any Collateral shall remain in full force and effect
(or be reinstated as the case may be) until payment in full of any such amounts,
which payment shall be due on demand.
WAIVERS: The Guarantor waives any right it may have to receive notice of the
following matters before CAC enforces any of its rights: (a) CAC's acceptance of
this Guaranty, (b) any credit that CAC extends to the Borrower, (c) the
Borrower's default, (d) any demand, or (e) any action that CAC takes regarding
the Borrower, anyone else, any collateral, or any Liability, which it might be
entitled to by law or under any other agreement. Any waiver shall affect only
the specific terms and time period stated in the waiver. CAC may waive or delay
enforcing any of its rights without losing them. No modification or waiver of
this Guaranty shall be effective unless it is in writing and signed by the party
against whom it is being enforced.
REPRESENTATIONS BY GUARANTOR: Guarantor represents that the execution and
delivery of this Guaranty and the performance of the obligations it imposes do
not violate any
30
law, do not conflict with any agreement by which it is bound, do not require the
consent or approval of any governmental authority or any third party, and that
this Guaranty is a valid and binding agreement, enforceable according to its
terms. Each Guarantor further represents that all balance sheets, profit and
loss statements, and other information, if any, furnished to CAC are accurate
and fairly reflect the financial condition of the organizations and persons to
which they apply on their effective dates, including contingent liabilities of
every type, which financial condition has not changed materially and adversely
since those dates.
NOTICES: Notice from one party to another relating to this Guaranty shall be
deemed effective if made in writing (including telecommunications) and delivered
to the recipient's address or telecopier number set forth under its name by any
of the following means: (a) hand delivery, (b) registered or certified mail,
postage prepaid, with return receipt requested, (c) first class or express mail,
postage prepaid, (d) Federal Express or like overnight courier service or (e)
telecopy or other wire transmission with request for assurance of receipt in a
manner typical with respect to communications of that type. Notice made in
accordance with this section shall be deemed delivered on receipt if delivered
by hand or wire transmission, on the third business day after mailing if mailed
by first class, registered or certified mail, or on the next business day after
mailing or deposit with an overnight courier service if delivered by express
mail or overnight courier. Notwithstanding the foregoing, notice of termination
of this Guaranty shall be deemed received only upon the receipt of actual
written notice by CAC in accordance with the paragraph above labeled "Continued
Reliance."
LAW AND JUDICIAL FORUM THAT APPLY: This agreement is governed by Michigan law.
The Guarantor agrees that any legal action or proceeding against it with respect
to any of its obligations under this Guaranty may be brought in any state or
federal court located in the State of Michigan, as CAC in its sole discretion
may elect. By the execution and delivery of this Guaranty, the Guarantor submits
to and accepts, with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of
those courts. The Guarantor waives any claim that the State of Michigan is not a
convenient forum or the proper venue for any such suit, action or proceeding.
MISCELLANEOUS: The Guarantor's liability under this Guaranty is independent of
its liability under any other guaranty previously or subsequently executed by
the Guarantor or any one of them, singularly or together with others, as to all
or any part of the Liabilities, and may be enforced for the full amount of this
Guaranty regardless of the Guarantor's liability under any other guaranty. This
Guaranty is binding on the Guarantor's heirs, successors and assigns, and will
operate to the benefit of CAC and its successors and assigns. The use of
headings shall not limit the provisions of this Guaranty. All discussions and
documents arising between this Guaranty and the last guaranty signed by the
Guarantor as to the Borrower are merged into this Guaranty.
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WAIVER OF JURY TRIAL: CAC and the Guarantor, after consulting or having had the
opportunity to consult with counsel, knowingly, voluntarily and intentionally
waive any right either of them may have to a trial by jury in any litigation
based upon or arising out of this Guaranty. Neither CAC nor the Guarantor shall
seek to consolidate, by counterclaim or otherwise, any action in which a jury
trial has been waived with any other action in which a jury trial cannot be or
has not been waived. These provisions shall not be deemed to have been modified
in any respect or relinquished by either CAC or the Guarantor except by a
written instrument executed by both of them.
Dated: April 19, 2001 Guarantor:
/S/ XXXXX XXXXXXXXX
-------------------------------
Xxxxx XxXxxxxxx
Guarantors Address:
0000 Xxxxxxx Xxxxx
---------------------------------
Cincinnati, Ohio
---------------------------------
Telephone:
----------
Witnesses:
---------------------------------
---------------------------------
Notary Public:
Signed and sworn before me this _________ day of _______________2001.
------------------------------------
Notary Public
Notary Public State of ___________________ County of ___________________
My commission expires________________________
