EXHIBIT 10.10.2
AMENDMENT NO. 2 TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2, executed as of October 1, 1999 but effective as of
July 1, 1999, is made and entered into by and between AmeriCredit Corp., a Texas
corporation having an office at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000
(hereinafter referred to as "Employer"), and Xxxxxxx X. Xxxxxx, an executive
employee of Employer (hereinafter referred to as "Employee").
WHEREAS, Employer and Employee have previously entered into that certain
Amended and Restated Employment Agreement dated as of July 1, 1997, and that
certain Amendment No. 1 to Amended and Restated Employment Agreement dated as of
August 1, 1998 (as amended from time to time, the "Employment Agreement").
WHEREAS, Employee desires to enhance his professional skills and training
by obtaining an advanced educational degree from the Xxxxxx Graduate School of
Management, Northwestern University; Employer believes that the skills and
training to be developed by Employee in pursuing and obtaining such advanced
degree will directly or indirectly inure to the benefit of Employer.
WHEREAS, Employer and Employee desire to amend the Employment Agreement to
set forth certain agreements, undertakings and obligations related to Employee's
pursuit of the advanced educational degree and to provide for certain other
amendments.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which is hereby acknowledged,
Employer and Employee intend by this Amendment No. 2 to modify and amend the
Employment Agreement as herein provided.
1. Representations and Acknowledgments. Employee desires and agrees to
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provide Employer with the ancillary agreements contained in this Amendment No. 2
in consideration for Employer's agreement to provide Employee the opportunity to
obtain the Degree (as defined below). Employee acknowledges and agrees that he
will continue learning and developing additional confidential and proprietary
information about the business and operations of Employer as a result of
Employee's continued employment. Employer desires and agrees to facilitate
Employee's additional training to further enhance Employee's professional skills
and abilities.
. Amendment of Section 1.4. Effective as of the date hereof, Section 1.4
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is hereby added to the Employment Agreement and shall provide in its entirety as
follows:
"1.4. Except in the event of a Repayment Trigger (as defined below) and
during the term of this Employment Agreement, (i) Employee may engage in
the activity of obtaining a degree and/or certification (the "Degree") from
The Xxxxxx Graduate School of Management, Northwestern University
("University"), and (ii) Employer agrees to provide the opportunity for
Employee to attend classes according to the program schedule for such
Degree and to consider the time devoted by Employee to attending such
classes and pursuing the Degree as the performance of Employee's normal job
duties (and such time shall not be considered as "vacation" time or other
time for which Employee shall be considered absent from his job). Employee
acknowledges and agrees
that he shall remain a full-time employee of Employer while actively
pursuing the Degree and shall remain subject to the commitments and
obligations set forth in Sections 1.2 and 1.3 hereof. Employee agrees to
use his best efforts to not permit his activities in pursuing the Degree to
interfere with the performance of the duties assigned to him by Employer or
any Subsidiary, or any authorized officer thereof.
3. Amendment of Section 2.1. The first sentence of Section 2.1 is hereby
amended by deleting the number "$165,000" and replacing it with the number
"$325,000."
4. Amendment of Section 2.3. The last proviso of Section 2.3 is hereby
amended to read as follows: "; provided, that, in no event shall Employee be
entitled to less than four weeks of vacation."
5. Amendment of Section 2.5. Effective as of the date hereof, Section 2.5
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is hereby added to the Agreement and shall provide in its entirety as follows:
"2.5. Except in the event of a Repayment Trigger and during the term of
this Employment Agreement, Employee shall be reimbursed by Employer for
program fees of approximately $75,000 (which includes tuition, books,
laptop, meals, lodging and other fees) and other reasonable educational
expenses (including, but not limited to, airfare, transportation and
airport parking) related to Employee's enrollment in the University and
pursuit of the Degree (all such fees and other expenses are collectively
referred to herein as "Education Expenses"). All Education Expenses
reimbursed and/or paid by Employer on Employee's behalf under this Section
2.5 shall, to the extent such amounts would be considered taxable income to
Employee, be "grossed-up" by Employer in a manner consistent with
Employer's customarily policies and procedures. Employee shall submit to
Employer reasonable documentary support evidencing Education Expenses
incurred by him under this Section 2.5, and Employer shall either reimburse
Employee for such Education Expenses or pay directly to University as
appropriate or as requested by Employee in his reasonable discretion.
In the event Employee (i) fails, for any reason or for no reason, to
complete the requirements for and obtain the Degree on or before June 30,
2001, or (ii) prior to June 30, 2003, resigns, retires or is terminated by
Employer for "due cause" as defined in this Agreement (each of the
foregoing events described in this sentence being referred to herein as a
"Repayment Trigger"), then Employee shall, within twelve (12) months after
the applicable Repayment Trigger, pay to Employer, without interest, an
amount equal to the unamortized portion of Education Expenses assuming an
amortization period of 48 months commencing July 1, 1999 (and using a
"straight-line" amortization methodology). By way of example, should
Employer advance $100,000 in Education Expenses and Employee thereafter
resigns effective September 30, 2001 (i.e., 27 months after July 1, 1999),
Employee will pay to Employer, pursuant to this paragraph, an amount equal
to $43,750 (i.e., $100,000 multiplied by [1.0 minus 27/48]).
Employee acknowledges and agrees that Employer may, in recouping amounts
due to it under the immediately preceding paragraph, but only after the
occurrence of a Repayment Trigger, offset against any amounts otherwise due
to Employee under this Agreement or any stock option agreement entered into
between Employee and Employer. Employee further agrees and hereby gives
written authorization to deduct and withhold any amounts due and owing by
Employer to Employee from any paycheck, wages, salary or other amounts owed
to him by Employer."
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6. Amendment to Section 5 - "Initial Term; Extensions of the Term."
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Sections 5.1 and 5.2 of the Employment Agreement are hereby amended in their
entirety to read as follows:
"5.1. The term of this Employment Agreement shall commence on the
effective date hereof and shall end on June 30, 2004.
5.2. The term of this Employment Agreement shall automatically be extended
for additional one-year periods commencing on July 1, 2002 and on each July
1 thereafter, unless either Employee or Employer gives written notice to
the other on or before March 1, 2002 or any March 1 thereafter of his or
its intention not to extend this Agreement. Notwithstanding anything to
the contrary contained herein and for purposes of further clarification
with respect to this Section 5.2 and Section 5.1 above, it is the intention
of the parties hereto that, unless and until notice of non-extension is
provided by either Employer or Employee as provided in the immediately
preceding sentence (or unless this Employment Agreement is terminated
pursuant to the terms hereof), as of July 1, 1999, the term of this
Agreement shall be five years; as of July 1, 2000, the term of this
Agreement shall be four years; as of July 1, 2001, the term of this
Agreement shall be three years; and as of July 1, 2002 and each July 1
thereafter, the term of this Agreement shall be extended for one year so as
to provide for a prospective three-year employment term as of such date, or
until terminated pursuant to the provisions hereof."
7. Amendment to Section 8.1 - "Employee's Non-Competition Obligation."
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Section 8.1 is hereby amended in its entirety to read as follows:
"8.1. (a) Employee's Non-Compete Obligation If Termination Occurs Prior
to June 30, 2004. Employee (i) acknowledges and agrees that he serves in a
special capacity for Employer pursuant to which he will acquire unique
knowledge of the operations and business of Employer and, as such, will not
be engaged in a common calling, and (ii) reaffirms the representations and
acknowledgments made by him in Section 1 of Amendment No. 2 to the
Employment Agreement. During the existence of Employee's employment by
Employer hereunder (all references in this Section 8 to "Employer" shall
include all subsidiaries of Employer) and, if the employment of Employee is
terminated by Employer for any reason pursuant to Section 6.2 or Employee
voluntarily terminates his employment (unless such voluntary termination
occurs within twelve months after a "change in control," as defined in
Section 8A.1 hereof) on or before June 30, 2004, for a period commencing on
the date on which Employee shall cease to be employed by Employer and
ending on the later to occur of (i) the date that is three (3) years after
Employee's last date of employment, or (ii) June 30, 2004, Employee shall
not, acting alone or in conjunction with others, directly or indirectly,
and whether as principal, agent, officer, director, partner, employee,
consultant, broker, dealer or otherwise, and whether for his own account or
otherwise, engage or participate in any business or activity within the
consumer financial services industry (each such business or activity, a
"Consumer Financial Services Business"), whether such Consumer Financial
Services Business is in direct or indirect competition with the business
conducted by Employer prior to or as of the date Employee shall cease to be
employed by Employer; provided, however, that effective as of July 1, 2003,
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the term "Consumer Financial Services Business as used in this section
shall be deemed and limited to mean only those businesses or activities in
competition with the business actually conducted by Employer as of the date
Employee shall cease to be employed by Employer. For purposes of
explanation of the preceding
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sentence, it is the intent of the parties hereto (i) to protect unto and
for the benefit of Employer, for a period of four (4) years from the first
advance made by Employer pursuant to Section 2.5 hereof, the unique skills
and specialized training that Employee will develop as a result of Employer
providing for Employee to pursue and obtain the Degree, which skills and
training Employer believes will enable it to more efficiently expand its
product offerings, scope of activities and profitability within the
consumer financial services industry, including into one or more Consumer
Finance Services Businesses in which Employer does not presently engage;
and (ii) after such four (4) year period, to limit the scope of Employee's
non-competition obligations to those businesses and activities in
competition with the business or businesses conducted by Employer.
(b) Employee's Non-Compete Obligation If Termination Occurs After June 30,
2004: Employee (i) acknowledges and agrees that he serves in a special
capacity for Employer pursuant to which he will acquire unique knowledge of
the operations and business of Employer and, as such, will not be engaged
in a common calling, and (ii) reaffirms the representations and
acknowledgments made by him in Section 1 of Amendment No. 2 to the
Employment Agreement. During the existence of Employee's employment by
Employer hereunder (all references in this Section 8 to "Employer" shall
include all subsidiaries of Employer) and, if the employment of Employee is
terminated by Employer for any reason pursuant to Section 6.2 or Employee
voluntarily terminates his employment (unless such voluntary termination
occurs within twelve months after a "change in control," as defined in
Section 8A.1 hereof) after June 30, 2004, for a period of three (3) years
after the date on which Employee shall cease to be employed by Employer,
Employee shall not, acting alone or in conjunction with others, directly or
indirectly, and whether as principal, agent, officer, director, partner,
employee, consultant, broker, dealer or otherwise, and whether for his own
account or otherwise, engage or participate in any business in competition
with the business conducted by Employer, or solicit, canvass or accept any
business or transaction for or from any other company or business in
competition with such business of Employer."
8. Effect of Amendments; Enforceability of Employment Agreement. This
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Amendment No. 2 replaces all previous agreements and discussions relating to the
same or similar subject matters between Employee and Employer with respect to
the subject matter of this Amendment No. 2. Except as otherwise expressly and
specifically amended or modified by this Amendment No. 2, the terms and
provisions of the Employment Agreement, as previously amended or modified, shall
continue in full force and effect on and after the date hereof. Without
limiting the generality of the foregoing, this Amendment No. 2 shall not affect
or impair in any respect the provisions of Section 8A.1 of the Employment
Agreement ("Change in Control") and, in the event of any conflict or
inconsistency between the provisions of this Amendment No. 2 and Section 8A.1 of
the Employment Agreement, the provisions of such Section 8A.1 shall control.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
AMERICREDIT CORP.
By: _______________________________________
Xxxxxxx X. Xxxxxxxxxx, Vice Chairman,
President and Chief Operating Officer
EMPLOYEE:
_____________________________________
Xxxxxxx X. Xxxxxx
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