Exhibit 10(x)
EMPLOYMENT AGREEMENT
This Agreement is entered into, to be effective as of April 1, 2004, by
and between Warrantech Corporation, a Delaware corporation, with its principal
place of business located at 0000 Xxxxxxx 000, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Employer" or "Warrantech"), and Xxxxxxx Xxxxxx, an individual residing at 0000
Xxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx 00000 ("Executive").
RECITALS
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WHEREAS, Employer recognizes that Executive will be a key member of
management and important to the long term development and prospects of Employer;
and
WHEREAS, Employer desires to employ Executive and Executive desires to
be employed by Employer pursuant to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the forgoing and the terms and
conditions set forth herein, Employer and Executive hereby agree as follows:
I. Employment and Duties
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Employer hereby employs Executive, and Executive hereby accepts such
employment, upon the terms and conditions set forth in this Agreement. Executive
shall render such executive, managerial, supervisory, developmental, marketing,
or other services as Employer may specify from time to time, subject at all
times to the direction and control of the Chief Executive Officer, Employer's
Board of Directors or any designee of any thereof. Executive shall serve as and
with the title of Executive Vice President, Chief Financial Officer and
Treasurer of Employer.
II. Term
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The term of Executive's employment under this Agreement shall commence
on April 1, 2004 and shall continue through March 31, 2009.
III. Compensation
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3.1 Salary. Employer shall pay Executive a base salary at the rate
of Two Hundred Eighty-five Thousand Dollars ($285,000) for each twelve-month
period during the term of this Agreement. Such base compensation shall be
payable in accordance with Employer's payroll practices as in effect from time
to time.
3.2 Incentive Compensation. Executive shall be eligible to receive
a bonus in an amount equal to one-half of one percent (.5%) of the net after tax
income of Employer (the "Bonus"). In calculating the net pre-tax or after tax
net income and determining distributions hereunder, Employer shall rely upon
Employer's financial statements as prepared by its independent certified public
accountants, which financial statements shall be prepared in a manner consistent
with generally accepted accounting principles. All bonuses described in this
section are payable annually and shall be paid, if due, fifteen (15) days after
the filing of the Employer's Annual Report on Form 10-K with the Securities and
Exchange Commission.
3.3 Stock Options. Executive shall be eligible to participate in
the stock option plan in accordance with the terms and conditions set forth in
Exhibit "A" attached hereto and incorporated herein.
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3.4 Medical Insurance. Employer shall obtain and maintain in full
force and effect a comprehensive major medical, hospitalization group plan (or
the equivalent) with dental coverage for the benefit of Executive and his
qualified dependents. The medical and dental premiums will be fully paid for
Executive and his qualified dependents. In the event of termination pursuant to
Article V or in the event Employer and Executive mutually agree, medical and
dental benefits will be available under the federal Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA) at Executive's option and expense.
3.5 Other Compensation. In addition to the compensation heretofore
set forth, or as may be hereinafter provided, Employer shall provide Executive
during his employment any and all benefits commensurate with his position, which
Employer, in its sole and absolute discretion, may make available to its
executive officers (or employees in general, if any one is not available solely
for executive officers) under any general pension plan, or other executive
benefit plan which may be in effect at any time or from time to time during the
employment period, subject to the terms contained in the plan documents of any
such plan and with any required executive/employee contribution to remain the
responsibility of the Executive.
3.6 Automobile. It is contemplated that to perform the services
required by this Agreement, Executive shall obtain and remain fully responsible
for the maintenance and repair of an automobile, for which Employer shall
provide Executive with an expense allowance at the rate of Twelve Thousand
Dollars ($12,000) per annum.
3.7 Life Insurance. Employer, for the benefit of Executive, shall
maintain in full force and effect (i) a group term life insurance policy in a
face amount equal to one hundred percent (100%) of Executive's base salary, not
to exceed One Hundred Fifty Thousand Dollars ($150,000), and (ii) a split dollar
life insurance policy with an annual premium in an amount equal to Ten Thousand
Dollars ($10,000). If prohibited by legislation, Company will pay Executive a
net bonus of $10,000 annually.
3.8 Physical. Employer will reimburse Executive for any charges in
excess of the coverage provided under Employer's medical plans for one complete
physical at the Xxxxxx Clinic during the term of this Agreement.
3.9 Vacation. Executive shall be entitled to three (3) weeks of
paid vacation during each calendar year in accordance with Employer's vacation
schedule and policies. In accordance with Employer's vacation policy, Executive
will be entitled to (4) weeks of vacation after ten years of service.
3.10 Expenses. Employer shall reimburse Executive in accordance
with Employer's expense reimbursement policies for all reasonable and necessary
expenses including, without limitation, travel and entertainment expenses,
incurred by Executive in connection with the business of Employer. Expenses
relating to membership in and attendance at trade and business associations and
conventions shall be reimbursed subject to the prior approval of Employer. All
such reimbursement shall be paid upon presentation of expense statements or
vouchers or such other supporting information as Employer may reasonably
require.
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IV. Extent of Service
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Executive shall devote his full time, attention, energies and skill to
the business of Employer, as directed by Employer, and shall assume and perform
such responsibilities and duties as may be assigned to him from time to time by
the Chief Executive Officer of Employer, Employer's Board of Directors or any
designee of either thereof. Executive shall be required to travel to such
locations as may be directed by Employer in the course of Executive's duties
hereunder. Notwithstanding anything contained in this Section IV or in any other
provision of this Agreement to the contrary, nothing shall be construed to limit
the ability of the Executive to serve on the Board of Directors of, or provide
any other services to, any trade association, charitable organization or other
not-for-profit entity as Executive shall from time-to-time deem appropriate,
provided that Executive has given Employer prior notice of such services.
Executive shall not serve on the Board of Directors of, or provide any other
services to, any for-profit entity without the prior written consent of
Employer, such consent not to be unreasonably withheld.
V. Termination
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Notwithstanding any contrary provisions herein contained, the
employment of Executive pursuant to this Agreement may be terminated before the
expiration of the term as specified in the following provisions of this Article
V, but such termination shall not affect the obligations of Executive set forth
in Article VII hereof.
5.1 Death or Disability. This Agreement, and all obligations of
the Employer hereunder, shall terminate immediately upon the death of Executive.
In the event that Executive is, due to any physical or mental injury, illness,
defect or other incapacitating condition, unable to perform his duties and
responsibilities for ninety (90) consecutive days, Employer may, in its
discretion, terminate this Agreement at any time thereafter and the Company
shall have no further obligation or liability to Executive.
5.2 By Employer, For Cause. (a) Employer shall have the right to
terminate Executive's employment under this Agreement upon the material failure,
material neglect or material refusal of Executive to:
(i) Perform the duties assigned to Executive under or pursuant to
this Agreement; or
(ii) Abide by the other covenants, terms and conditions of this
Agreement.
Prior to effecting any such termination, Employer shall provide Executive with
notice of such failure, neglect or refusal and shall give Executive a reasonable
time period, which shall not be more than ten (10) days, in which to correct
such problem.
(b) Employer shall have the right to immediately terminate
Executive's employment under this Agreement for certain instances of misconduct
including, but not limited to:
(i) Misappropriating any funds or property of Employer;
(ii) Attempting to obtain personal profit from any transaction in
which Employer has an interest;
(iii) Activities by Executive of a public nature failing to conform
to the community standard of generally accepted personal or
business conduct that such activities may reasonably be
expected to reflect badly upon the public image of Employer or
its business; or
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(iv) Executive's conviction of, or pleading of guilty, or no
contest, to a felony, or a misdemeanor involving dishonesty or
moral turpitude.
5.3 By Employer, Without Cause. In the event the Employer
terminates Executive's employment hereunder for any reason other than the
reasons set forth in sections 5.1 and 5.2 above, Executive shall be entitled to
receive the lesser of (i) two (2) years' salary, and (ii)) his salary through
the end of the term of the Agreement as if he had not been terminated. Employee
shall also be entitled to any unpaid bonus earned by Employee pursuant to
Paragraph 3.2 of this Agreement through the date of termination, provided that
if Employee's employment is terminated other than on the last day of Employer's
fiscal year, Employer shall be obligated to pay the pro rata portion on the
bonus, if any, which relates to the portion of the fiscal year in which the
employee was employed. Executive shall be under no obligation to seek other
employment or otherwise mitigate the obligations of the Employer under this
Agreement.
5.4 By Executive, Without Cause. This Agreement may be terminated
by Executive prior to the expiration of the term hereof upon not less than sixty
(60) days prior written notice. Notwithstanding the forgoing, however, in the
event that Executive gives notice of his intent to terminate this Agreement
Employer may elect, in its sole discretion, to terminate this Agreement and
Executive's employment hereunder at any time after receipt of notice from
Executive.
5.5 Effect of Termination. In the case of termination pursuant to
sections 5.1, 5.2 or 5.4, the salary and other compensation specified in Section
III, unless otherwise specified, shall immediately terminate and cease to
accrue. Executive shall not be entitled to any stock options unless they have
fully vested and no credit will be given for partial years of employment to
ascertain the amount of options that are fully vested.
VI. Inventions
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6.1 Definitions. As used herein "Inventions" shall mean all
discoveries, inventions, improvements, and ideas relating to any process,
formula, program or software, machine, device, manufacture, composition of
matter, plan or design, whether patentable or not, and specifically includes,
but is not limited to, all designs and developments, of whatsoever nature,
relating to computer hardware, software or programs.
6.2 Rights to Inventions. Executive shall, during the period of
his employment with Employer, make prompt and full disclosure of all Inventions
which Executive makes or conceives, individually, jointly, or with any other
executive, or Employer or affiliate of Employer, during the period of
Executive's employment by Employer. All such inventions shall become Employer's
exclusive property.
Notwithstanding the foregoing, Executive shall retain all his rights
in, and shall not be required to assign to the Employer any invention
(hereinafter an "Excluded Invention"): (a) which was developed entirely on
Executive's own time, and (b) which does not relate directly to or have any
application to the business of Employer or any Warrantech affiliate or to their
actual or demonstrably anticipated research or development, or which does not
result from any work performed by Executive for Employer. This paragraph
constitutes written notification to the Executive of the inventions which
Executive is not required to assign to Employer. Executive shall advise employer
of any invention made or conceived by Executive which Executive believes he is
entitled to pursuant to this paragraph.
6.3 Records. Executive will keep and maintain complete written
records of all Inventions made or conceived by Executive, and of all work on
investigations done or carried out by Executive for Employer at all stages
thereof, which records shall be the property of Employer, except for records of
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the Excluded Inventions. Upon termination of his employment with Employer,
Executive agrees to deliver promptly to Employer any unpublished memoranda,
notes, records, reports, sketches, plans, programs, software, or other documents
held by him concerning any Inventions or potential Inventions to which Employer
would be entitled pursuant to the provisions hereof, including any information,
knowledge or data relating thereto, or pertaining to the Employer's business or
contemplated business, whether confidential or not.
6.4 Assignments. During Executive's employment hereunder and after
the termination thereof, Executive shall execute, acknowledge, and deliver to
Employer all such papers, including applications for or assignments of patents
or copyrights or applications for the same, as may be necessary to enable
Employer, its nominees, successors or assigns, at its or their expense, to
publish, protect by litigation or otherwise, obtain titled and/or copyrights or
patents to the Inventions which are the property of Employer pursuant to this
Agreement, in any and all countries.
VII. Confidentiality and Non-Compete
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7.1 Non-Competition Covenant. Executives agrees that, during the
period of Executive's employment by Employer and during the one year period
immediately following Executive's employment by Employer or any Warrantech
subsidiary or affiliate in any capacity, he will not, directly or indirectly,
own, manage, operate, control, consult with or for, be employed by or an agent
for, participate in or be connected in any manner with the ownership,
management, operation or control of any business that is competitive with the
business of Employer or any of its parents, subsidiaries or affiliates. Further,
Executive acknowledges that, as the Executive Vice President, Chief Financial
Officer and Treasurer, his services are unique and extraordinary, and that the
restrictions herein are reasonable for Employer's protection of its legitimate
business interests.
If any court having jurisdiction determines that the foregoing
non-compete covenant is invalid due to its duration, coverage or extent, the
covenant shall be modified to reduce its duration, coverage or extent as
necessary to make such covenant valid, and the covenant as modified then shall
be enforced.
7.2 Non-Solicitation. During his employment and for two (2) years
after the termination of that employment, for any reason, Executive will not,
directly or indirectly, either personally or on behalf of any other entity
(whether as a director, stockholder, owner, partner, consultant, principal,
employee, agent or otherwise) (i) canvas, solicit, transact or attempt to
transact any business from any person or entity who was a customer, client,
vendor, dealer, or insurance company of the Employer or any other person or
entity having a business relationship with the Employer or any prospective
customer, client, vendor, or insurance company of the Employer or any other
person or entity the Employer is in negotiations with to enter into a business
relationship during the term of Executive's employment or whose identity was
revealed to Executive during or as a consequence of his employment; (ii)
solicit, induce, entice, hire, employ or attempt to employ any individual
employed by the Company as of the termination of his employment or during the
prior 12 months; or (iii) take any action which is intended or would reasonably
be expected to adversely affect the Employer, its business, reputation or its
relationship with its actual or prospective clients, customers, suppliers, or
investors.
7.3 Confidentiality and Trade Secrets. During and after the terms
of his employment by Employer, Executive shall not communicate, divulge, or use
any secret, confidential information, trade secret, confidential customer list
or any confidential information relating to customers, clients, vendors,
dealers, insurance companies, suppliers of the Employer or any other person or
entity having a relationship with the Employer or any affiliate of Employer for
any purpose whatsoever except as consented to in writing by Employer. This
obligation shall apply with respect to any such item until such item ceases
(other than through the action of Executive) to be secret or confidential.
Confidential Information shall also include all information contained or stored
in the confidential databases of the Employer containing Confidential
Information or other information of the Employer. Executive shall have no
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obligation hereunder to keep confidential any Confidential Information to the
extent disclosure of any thereof is required by law or determined in good faith
by counsel to Executive to be necessary or appropriate to comply with any legal
or regulatory order, regulation or requirement; provided, however, that in the
event disclosure is required by law, Executive shall provide Employer with
prompt notice of such requirement so that Employer may seek an appropriate
protective order.
7.4 Remedies. In the event of any actual breach by either of the
parties of the provisions of this Section VII, then each shall be entitled to
all the remedies available by law or in equity, including without limitation the
right to obtain damages for said breach and non-adherence and the right to
enjoin the other, or any other person or entity in or threatening breach or
non-adherence, from continuing, and to remedy, the activities which constitute
said breach. The parties acknowledge and agree that any remedies at law may be
inadequate in the event of any breach of the provisions of this Section VII,
and, therefore they agree and acknowledge that each shall be entitled to all
equitable remedies that are appropriate in the event of such breach.
VIII. Miscellaneous.
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8.1 Entire Agreement. This Agreement contains the entire agreement
among the parties, superseding in all respects any and all prior oral or written
agreements or understandings pertaining to the subject matter hereof and
transactions contemplated hereby, and shall be amended or modified only by
written instrument signed by all of the parties hereto.
8.2 Waiver. No waiver by any party of any condition, or of the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further and continuing waiver of any such
condition or breach of any other term, covenant, representation, or warranty of
this Agreement, or the agreements or documents executed in connection herewith.
8.3 Right of Offset. If at any time Employer is obligated to make
payments to Executive under this Agreement, whether as compensation,
reimbursement of expenses or otherwise, Employer shall have the right to offset
against said obligation any amount which Executive is obligated to pay to
Employer or any corporation controlling, controlled by or under common control
with the Employer at the time of offset. In the event that the amount which
Employer seeks to offset is in dispute or otherwise unliquidated, Employer may
nevertheless exercise its right of offset, but if it is ultimately determined
that Employer was not entitled to such offset, Employer shall, in addition to
the amount not properly offset, pay Executive interest on such amount from the
date of offset to the date of payment at 6% per annum. In the event that it is
necessary for Executive to take any action, whether at law or in equity, to
recover amounts which employer inappropriately withheld under this provision,
then the prevailing party shall be entitled to reasonable attorney's fees, costs
and other necessary disbursements in addition to any other relief to which it
may be entitled.
8.4 Binding Effect; Assignment. This Agreement shall be binding
upon, and shall inure to the benefit of and be enforceable by, the parties
hereto and their respective heirs, successors, and assigns, but this Agreement
shall not be assignable by Executive. In the event of (i) the merger or
consolidation of Employer with or into any other entity, (ii) the acquisition of
Employer by any entity, or (iii) the sale or other disposition by Employer of
all or substantially all of its businesses and/or assets, this Agreement shall
remain legally valid and binding and shall be enforceable by Executive against
the surviving entity.
8.5 General. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. This Agreement shall be governed,
enforced and construed under the laws of the State of Texas, without regard to
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its conflict of law provisions. Any dispute arising out of or related to this
Agreement shall be subject to the exclusive jurisdiction of the Superior Court
of the State of Texas.
8.6. Resolution of Disputes. In the event of a dispute or
disagreement between the parties arising out of or in connection with this
Agreement, prior to submission of the controversy to arbitration, the parties
shall submit the matter to mediation in a proceeding to be conducted in
Stamford, Connecticut. If the parties exhaust the mediation process without a
successful resolution of the matter, the dispute shall be settled in the State
of Connecticut by arbitration before a panel of three arbitrators, one selected
by Employer and one selected by Executive, with a third being appointed by the
two so chosen. The arbitration shall be commenced by the initiating party
notifying the other party of its demand for arbitration and of the arbitrator
whom it selected and demanding that the other party select its arbitrator. If
the third arbitrator is not selected with 30 days after the demand is served, he
shall be selected in accordance with the rules and regulations then in effect of
this American Arbitration Association or its successor. In any action, whether
at law, in equity, or in arbitration, to enforce or interpret the terms of, or
otherwise arising out of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, arbitrator fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled..
8.7 Representations and Indemnity. Executive represents and
warrants to Employer that (i) he has the full right and power to enter into this
Agreement, (ii) he is not bound by any non-compete covenant or agreement that
would prevent him from accepting employment with Employer, subject Employer to
any liability arising out of his employment, or infringe on his ability to fully
perform his duties as Executive Vice President, Chief Financial Officer and
Treasurer of Employer, and (iii) he is not subject to any other restriction or
impediment thereto that would prevent him from fully performing his duties as
Executive Vice President, Chief Financial Officer and Treasurer of Employer.
Executive hereby indemnifies Employer against any claims, losses, damages or
expenses that Employer may incur or suffer in connection with any inaccuracy in,
or breach of, any of the representations and/or warranties set forth in this
Section 8.7.
8.7 Survivability. Notwithstanding anything herein to the
contrary, Sections 6.4, 7.1, 7.2, 7.3, 7.4, 8.3, 8.6, and 8.7 above shall
survive the termination of this Agreement and shall be deemed fully enforceable
thereafter.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement to be
effective as of April 1, 2004.
WARRANTECH CORPORATION EXECUTIVE
By: /s/ XXXX SAN XXXXXXX /s/ XXXXXXX XXXXXX
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Xxxx San Xxxxxxx Xxxxxxx Xxxxxx
Title: Chief Executive Officer
Date: March 29, 2004 Date: March 29, 2004
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EXHIBIT A
Stock Options
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Warrantech hereby grants Executive options (the "Options") to purchase
up to One Hundred Thousand Dollars ($100,000) worth of shares of Warrantech
common stock ("Stock") under its 1998 Employee Incentive Stock Option Plan, as
amended (the "Plan"), at an exercise price equal to the opening price of the
Stock on the date such Options are approved by the Board of Directors. The
issuance of the Options is subject to the approval of the Board of Directors, in
its sole discretion.
Vesting of the shares shall be as follows:
(a) Fifty per cent (50%) of the options shall vest in equal amounts at
the conclusion of each of the first, second, third, fourth, and
fifth years during the term of this Agreement,, provided that
Employer meets its financial objectives in each immediately
preceding fiscal year. Failure to attain such objectives for any
one fiscal year shall not prevent Options from vesting for those
years in which said objectives were obtained.
(b) The remaining fifty per cent (50%) of such Options will vest in
equal amounts at the conclusion of each of the first, second,
third, fourth, and fifth years during the term of this agreement.
In calculating Employer's attainment of the objectives described above, the
parties shall rely upon the financial statements of the Consolidated Companies
as prepared by its independent certified public accountants, which financial
statements shall be prepared in a manner consistent with generally accepted
accounting principles.
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