EXHIBIT 10.30
RETENTION INCENTIVE AGREEMENT
This Retention Incentive Agreement ("Agreement") is entered into by and
between _____________ ("Employee" or "You") and GAINSCO Service Corp. ("GAINSCO"
or the "Company"). Employee and GAINSCO are sometimes referred to collectively
as the "Parties." The purpose of the Agreement is to provide Employee with
incentive to continue employment with GAINSCO through June 30, 2003 (the
"Retention Date") and to obtain a release of claims thereafter.
1. This Agreement shall become effective and enforceable on the day that
it is executed (the "Retention Incentive Agreement Effective Date") by
each of the Parties. The Parties understand and agree that this
Agreement does not supercede any severance agreement or employment
agreement Employee may have with GAINSCO, including the Change in
Control Agreement between Employee and GAINSCO dated _________ (the
"CIC Agreement").
2. If employee is eligible, GAINSCO will pay Employee, in one lump sum
payment, subject to the usual deductions for federal payroll taxes and
benefits, a total payment equal to one year's base salary at Employee's
compensation rate as of (1) the Retention Incentive Agreement Effective
Date of this Agreement or (2) the date that Employee's employment with
the Company ends, whichever is greater, less any money GAINSCO owes
Employee under (1) the CIC Agreement and (2) any other severance
agreement between GAINSCO and Employee. This payment is referred to
hereafter as the "Retention Incentive and Release Agreement Payment."
Employee shall be eligible to receive the Retention Incentive and
Release Agreement Payment provided that:
a. Prior to the Retention Date, Employee does not terminate his
employment with GAINSCO without "Good Reason" as described in
paragraph 3; AND
b. Prior to the Retention Date, Employee has not been terminated
for "Cause" as described in paragraph 4; AND
c. Employee executes the Separation and Release Agreement
attached hereto as Attachment 1 after the end of his
employment with GAINSCO.
If Employee is eligible, GAINSCO shall mail the Retention Incentive and
Release Agreement Payment to Employee within fifteen business days of
the Effective Date of the Separation and Release Agreement attached
hereto as Attachment 1.
3. For purposes of this Agreement, Employee has "Good Reason" to terminate
his employment with GAINSCO upon thirty (30) days' written notice if:
a. Employee has been relocated to an office that is more than 50
miles away from Employee's current working locale and Employee
terminates his employment within 90 days of such relocation.
b. Employee is stripped of his job title without Employee's
permission.
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c. Employee's base salary is reduced without Employee's
permission.
The Parties understand and agree that this Agreement defines "Good
Reason" differently than does the CIC Agreement.
4. For purposes of this Agreement, GAINSCO has "Cause" to terminate
Employee if:
a. Employee fails to perform duties in the scope of his
employment that a person of ordinary prudence would have
performed under the same or similar circumstances; or
b. Employee breaches the confidentiality provisions articulated
in paragraph 5 of this Agreement; or
c. Employee commits a crime constituting a felony or a crime of
moral turpitude; or
d. Employee commits an act of dishonesty, fraud, willful
misconduct, unlawful discrimination or theft; or
e. Employee uses for his own benefit any confidential or
proprietary information of GAINSCO, or willfully or
negligently divulges any such information to third parties
without the prior written consent of GAINSCO.
The Parties understand and agree that this Agreement defines "Cause"
differently than does the CIC Agreement.
5. Employee agrees to hold confidential and not to disclose to anyone any
confidential information gained in the course of Employee's employment
with GAINSCO including, but not limited to, information concerning the
financial affairs, business plans, proprietary statistics, pricing, and
customer information of GAINSCO or any of its affiliates. Employee
agrees to abide by and keep in force any confidentiality provisions of
any agreement between Employee and GAINSCO. Employee further agrees to
hold confidential, and not to disclose to anyone, the contents of this
Agreement, including its terms and any monetary consideration paid
herein, except as required by lawful subpoena or for purposes of
enforcing this Agreement or for tax advice.
6. Employee agrees that presently, his annualized base salary is $
____________________ (_________________________ THOUSAND DOLLARS AND
_______ CENTS).
7. For a period commencing upon Retention Incentive Agreement Effective
Date of this Agreement and ending one year after the termination of
Employees employment with GAINSCO, Employee agrees that he will not
solicit any person who is an employee or independent contractor of
GAINSCO or its successors to terminate any relationship such person may
have with GAINSCO or its successors. Employee hereby represents and
warrants that he has not entered into any agreement, understanding or
arrangement with any
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employee or independent contractor of GAINSCO or its successors
pertaining either to any business in which Employee has participated or
plans to participate.
8. If deemed necessary by GAINSCO, Employee agrees to render to GAINSCO
his full and complete cooperation in any investigation, proceeding,
litigation or other legal proceeding. GAINSCO agrees that it will
provide reasonable compensation to compensate Employee for his time and
expense associated with such cooperation. EMPLOYEE AND GAINSCO AGREE
THAT ANY WRITTEN OR ORAL STATEMENT OR TESTIMONY GIVEN BY EMPLOYEE SHALL
BE TRUTHFUL.
9. Employee understands and agrees that if any provision of this Agreement
is held to be unenforceable, such provision shall be severed from the
other remaining provisions of this Agreement and it shall not affect
the validity or unenforceability of the remaining provisions.
10. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties hereto. The Parties agree that venue
for all disputes SHALL be in Tarrant County, Texas. The Parties further
agree and acknowledge that they are subject to personal jurisdiction in
Tarrant County, Texas.
11. All communications required or allowed under this Agreement to GAINSCO
shall be in writing and shall be to:
PRESIDENT
GAINSCO SERVICE CORP.
000 XXXXXXXX XXXXXX
XXXX XXXXX, XXXXX 00000
All communications required or allowed under this Agreement to Employee
shall be in writing and shall be to Employee's last address on file
with the Company. Employee understands and agrees that if his address
changes, he shall be responsible for informing GAINSCO of his new
address in writing within one week of the change of address. If
Employee fails to comply with this provision, he shall be deemed to
have received any communication sent to him by GAINSCO or its
representatives at Employee's last address on file with GAINSCO.
12. No waiver of any of the terms of this Agreement shall be valid unless
in writing and signed by all Parties to this Agreement. No waiver or
default of any term of this Agreement shall be deemed a waiver of any
subsequent breach or default of the same or similar nature. This
Agreement may not be changed except by writing signed by the Parties.
13. The parties agree that this Agreement may be executed in multiple
originals.
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EXECUTED on the _____________ day of _________, 2002.
-----------------------------------
(Name of Employee)
GAINSCO Service Corp.
By:
-------------------------------
Its:
------------------------------
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RETENTION INCENTIVE AGREEMENT
This Retention Incentive Agreement ("Agreement") is entered into by and
between _____________ ("Employee" or "You") and GAINSCO Service Corp.
("GAINSCO"). Employee and GAINSCO are sometimes referred to collectively as the
"Parties". The purpose of the Agreement is to provide Employee with incentive to
continue employment with GAINSCO or its affiliates until April 15, 2005.
1. The Parties agree that this Agreement supercedes and replaces any and
all prior agreements, whether verbal or in writing, between the Parties
(with the exception of the confidentiality provisions of any prior
agreement between the Parties), including the Retention Incentive
Agreement between the Parties dated ____________, and attached hereto
as Attachment 1. The Parties further understand and agree that this
Agreement does not change the "at-will" nature of Employee's employment
with GAINSCO and that either Employee or GAINSCO may terminate the
employment relationship at anytime for any reason not prohibited by
law.
2. This Agreement shall become effective and enforceable on the day that
it is executed (the "Effective Date") by each of the parties.
3. GAINSCO will pay Employee, in one lump sum payment, subject to the
usual deductions for federal payroll taxes and benefits, $_________
(____________________________ ______ DOLLARS AND ______ CENTS) (this
payment is referred to hereafter as the "First Retention Incentive
Payment") on or before April 30, 2004 provided that:
a. Prior to the April 15, 2004, Employee does not terminate her
employment with GAINSCO without "Good Reason" as described in
paragraph 5; AND
b. Prior to April 15, 2004, Employee has not been terminated for
"Cause" as described in paragraph 6.
If Employee meets the eligibility criteria described in this paragraph,
then GAINSCO shall mail the First Retention Incentive Payment to
Employee or the representative of Employee's estate: (1) within fifteen
days of April 15, 2004; or (2) if Employee is terminated without
"Cause" prior to the April 15, 2004, within fifteen days of Employee's
termination; or (3) if Employee terminates her employment for "Good
Reason" prior to April 15, 2004, within fifteen days of Employee's
termination, or (4) if prior to April 15, 2004, Employee's employment
ends by reason of Employee's death, within fifteen days of the date
that GAINSCO receives an official copy of Employee's death certificate;
or (5) if prior to April 15, 2004, Employee's employment ends by reason
of Employee's disability, within fifteen days of employee's
termination.
4. GAINSCO will pay Employee, in one lump sum payment, subject to the
usual deductions for federal payroll taxes and benefits, $_________
(_________________________________ DOLLARS AND _______ CENTS) (this
payment is referred to hereafter as the "Second Retention Incentive
Payment") on or before April 30, 2005 provided that:
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a. Prior to April 15, 2005, Employee does not terminate her
employment with GAINSCO without "Good Reason" as described in
paragraph 5; AND
b. Prior to April 15, 2005, Employee has not been terminated for
"Cause" as described in paragraph 6.
If Employee meets the eligibility criteria described in this paragraph,
then GAINSCO shall mail the Second Retention Incentive Payment to
Employee or the representative of Employee's estate: (1) within fifteen
days of April 15, 2005; or (2) if Employee is terminated without
"Cause" prior to the April 15, 2005, but after April 15, 2004, within
fifteen days of Employee's termination; or (3) if Employee terminates
her employment for "Good Reason" prior to April 15, 2005, but after
April 15, 2004, within fifteen days of Employee's termination, or (4)
if prior to April 15, 2005, but after April 15, 2004, Employee's
employment ends by reason of Employee's death, within fifteen days of
the date that GAINSCO receives an official copy of Employee's death
certificate; or (5) if prior to April 15, 2005, but after April 15,
2004, Employee's employment ends by reason of Employee's disability,
within fifteen days of employee's termination.
5. For purposes of this Agreement, Employee has "Good Reason" to terminate
her employment with GAINSCO upon thirty (30) days' written notice if
Employee has been relocated to an office that is more than 50 miles
away from Employee's current working locale and Employee terminates her
employment within 90 days of such relocation.
6. For purposes of this Agreement, GAINSCO has "Cause" to terminate
Employee if:
a. Employee fails to perform duties in the scope of her
employment that a person of ordinary prudence would have
performed under the same or similar circumstances; or
b. During the scope of her employment, Employee commits an act
that a person of ordinary prudence would not have committed in
the same or similar circumstances; or
c. Employee breaches the confidentiality provisions articulated
in paragraph 8 of this Agreement; or
d. Employee commits a crime constituting a felony or a crime of
moral turpitude; or
e. Employee commits an act of dishonesty, fraud, willful
misconduct, unlawful discrimination or theft; or
f. Employee uses for her own benefit any confidential or
proprietary information of GAINSCO, or willfully or
negligently divulges any such information to third parties
without the prior written consent of GAINSCO.
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7. Employee or Employee's estate shall receive the First Retention
Incentive Payment in accordance with the terms and provisions of
paragraph 3 if, prior to April 15, 2004, Employee's employment with
GAINSCO ends by reason of Employee's death or disability, as that term
is defined in the Americans With Disabilities Act of 1990, provided
that in the event of disability, the disability prevents Employee from
performing the essential functions of her position with or without
reasonable accommodation. Employee or Employee's estate shall receive
the Second Retention Incentive Payment in accordance with the terms and
provisions of paragraph 4 if, prior to April 15, 2005, Employee's
employment with GAINSCO ends by reason of Employee's death or
disability, as that term is defined in the Americans With Disabilities
Act of 1990, provided that in the event of disability, the disability
prevents Employee from performing the essential functions of her
position with or without reasonable accommodation.
8. Employee agrees to hold confidential and not to disclose to anyone any
confidential information gained in the course of Employee's employment
with GAINSCO including, but not limited to, information concerning
GAINSCO's financial affairs, business plans, propriety statistics,
pricing and customer information. Employee agrees to abide by and keep
in force any confidentiality provisions of any agreement previously
entered into between Employee and GAINSCO. Employee further agrees to
hold confidential, and not to disclose to anyone, the contents of this
Agreement, including its terms and any monetary consideration paid
herein, except as required by lawful subpoena or for purposes of
enforcing this Agreement or for tax advice.
9. For a period commencing upon Effective Date of this Agreement and
ending one year after the termination of Employee's employment,
Employee agrees that she will not solicit any person who is an employee
or independent contractor of GAINSCO or its successors to terminate any
relationship such person may have with GAINSCO or its successors.
Employee hereby represents and warrants that she has not entered into
any agreement, understanding or arrangement with any employee or
independent contractor of GAINSCO or its successors pertaining either
to any business in which Employee has participated or plans to
participate.
10. For a period of one year after the termination of Employee's
employment, Employee agrees to render to GAINSCO her full and complete
cooperation in any investigation, proceeding, litigation or other legal
proceeding. GAINSCO agrees that it will provide reasonable compensation
to compensate Employee for her time and expense associated with such
cooperation. EMPLOYEE AND GAINSCO AGREE THAT IF EMPLOYEE PROVIDES ORAL
OR WRITTEN TESTIMONY, SUCH TESTIMONY SHALL BE TRUTHFUL.
11. Employee understands and agrees that if any provision of this Agreement
is held to be unenforceable, such provision shall be severed from the
other remaining provisions of this Agreement and it shall not affect
the validity or unenforceability of the remaining provisions.
12. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties hereto. The Parties
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agree that venue for all disputes SHALL be in Tarrant County, Texas.
The Parties further agree and acknowledge that they are subject to
personal jurisdiction in Tarrant County, Texas.
13. All communications required or allowed under this Agreement shall be in
writing and shall be to:
President
GAINSCO Service Corp.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
14. No waiver of any of the terms of this Agreement shall be valid unless
in writing and signed by all Parties to this Agreement. No waiver or
default of any term of this Agreement shall be deemed a waiver of any
subsequent breach or default of the same or similar nature. This
Agreement may not be changed except by writing signed by the Parties.
15. The parties agree that the Agreement may be executed in multiple
originals.
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EXECUTED on the _____________ day of _____________, 2002.
EMPLOYEE
------------------------------------
GAINSCO Service Corp.
By:
--------------------------------
Its:
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