AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated and effective as of
July 1, 1997, 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"), each subsidiary corporation of
Employer whether executing this Agreement or not (each, a "Subsidiary"), and
Xxxxxxx X. Xxxxxx (hereinafter referred to as "Employee").
WHEREAS, Employer desires that the Employee continue as an employee to
provide the necessary leadership and management skills that are important to
the success of Employer and Subsidiary. Employer believes that retaining the
Employee's services as an employee of Employer and Subsidiary and the benefits
of his business experience are of material importance to Employer and
Subsidiary.
WHEREAS, Employer, AmeriCredit Financial Services, Inc. and Employee have
previously entered into that certain Employment Agreement dated and effective
as of November 1, 1993 (the "Prior Agreement"). The parties hereto now desire
to amend and restate the terms and provisions of the Prior Agreement and to set
forth their agreements herein.
NOW, THEREFORE, in consideration of Employee's employment by Employer and
Subsidiary and the mutual promises and covenants contained herein, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto intend by
this Agreement to amend and restate the Prior Agreement and specify the terms
and conditions of Employee's employment relationship with Employer and
Subsidiary and the post-employment obligations of Employee.
1. GENERAL DUTIES OF EMPLOYER AND EMPLOYEE:
1.1. Employer agrees to employ Employee and Employee agrees to accept
employment by Employer and to serve Employer and Subsidiary in the following
capacity, upon the terms and conditions set forth herein:
Senior Vice President and Chief Credit Officer - AmeriCredit Corp.
Executive Vice President, and Chief Credit Officer
and Chief of Staff - AmeriCredit Financial Services, Inc. and
Americredit Corporation of California
The duties and responsibilities of Employee shall include such duties as may
from time-to-time be assigned to Employee by the Board of Directors of
Employer or Subsidiary, any duly authorized committees thereof or an
authorized officer of Employer or Subsidiary. The executive capacity that
Employee shall hold during the term hereof shall be that position as
determined by the Board of Directors of Employer or Subsidiary or any duly
authorized committees thereof from time-to-time in their sole discretion.
While employed hereunder, the initial position that Employee shall hold
(until such time as such position may be changed as aforesaid) shall be the
position set forth above in this Section 1.1.
1.2. While employed hereunder, Employee shall obey the lawful directions
of the Board of Directors of Employer or Subsidiary, any duly authorized
committees thereof or any authorized officers of Employer or Subsidiary and
shall use his best efforts to promote the interests of Employer and Subsidiary
and to maintain and to promote the reputation thereof. While employed
hereunder, Employee shall devote his time, efforts, skills and attention to the
affairs of Employer and Subsidiary in order that he shall faithfully perform
his duties and obligations hereunder and such as may be assigned to or vested
in him by the Board of Directors of Employer or Subsidiary, any duly authorized
committees thereof or any duly authorized officer of Employer or Subsidiary.
1.3. During the term of this Agreement, Employee may from time to time
engage in any businesses or activities that do not compete directly and
materially with Employer or Subsidiary and any of their subsidiaries, provided
that such businesses or activities do not materially interfere with his
performance of the duties assigned to him in compliance with this Agreement by
the Board of Directors of Employer or Subsidiary, any duly authorized
committees thereof or any authorized officer of Employer or Subsidiary. In any
event, Employee is permitted to (i) invest his personal assets as a passive
investor in such form or manner as will not contravene the best interests of
Employer or Subsidiary, (ii) participate in various charitable efforts, or
(iii) serve as a director or officer of any other entity or organization when
such position has previously been approved by the Board of Directors of
Employer or Subsidiary.
2. COMPENSATION AND BENEFITS:
2.1. As compensation for services to Employer and Subsidiary, Employer
shall pay to Employee during the term of this Agreement a salary at an annual
rate to be fixed from time to time by the Board of Directors of Employer or any
duly authorized committee thereof, which annual rate shall initially be
$165,000 on a per annum basis. The salary shall be payable in equal biweekly
installments, subject only to such payroll and withholding deductions as may be
required by law and other deductions applied generally to employees of Employer
for insurance and other employee benefit plans. The Board of Directors of
Employer, or any authorized committee or officer of Employer, shall review
Employee's overall annual compensation at least annually, with a view to
ascertaining the adequacy thereof and such compensation may be increased (but
not decreased) by the Board of Directors of Employer from time to time by an
amount that in the opinion of the Board of Directors of Employer is justified
by Employee's performance.
2.2. Upon Employee furnishing to Employer customary and reasonable
documentary support (such as receipts or paid bills) evidencing costs and
expenses incurred by him in the performance of his services and duties
hereunder (including, without limitation, travel and entertainment expenses)
and containing sufficient information to establish the amount, date, place and
essential character of the expenditure, Employee shall be reimbursed for such
costs and expenses in accordance with Employer's normal expense reimbursement
policy. Employee shall be entitled to participate in all group life, health
and medical insurance plans, stock option plans and other stock programs and
compensation plans and such other benefits, plans or programs as may be from
time to time specifically adopted and approved by Employer for employees
generally.
2.3 Employee shall be entitled to such vacation, holiday, and (subject to
the provisions of Section 6.3 hereof) other paid or unpaid leave of absence as
is consistent with Employer's normal policies or as otherwise approved by the
Board of Directors of Employer; provided, that, in no event shall Employee be
entitled to less than three weeks of vacation.
-2-
2.4 As long as this Agreement in is effect, Employer agrees to provide
and maintain life insurance coverage on the life of Employee in the face amount
of $300,000, with proceeds thereunder payable to such beneficiaries as Employee
may designate, and Employer agrees to pay all premiums on such policy.
Coverage shall continue throughout the employment term hereof. Such coverage
may consist of term, group term, whole life or any other form of coverage
selected by Employer in its sole discretion and may be with such insurers as
Employer may select.
3. PRESERVATION OF BUSINESS; FIDUCIARY RESPONSIBILITY:
Employee shall use his best efforts to preserve the business and
organization of Employer and Subsidiary, to keep available to Employer and
Subsidiary the services of present employees and to preserve the business
relations of Employer and Subsidiary with dealers, retailers, suppliers,
distributors, customers and others. Employee shall not commit any act, or in
any way assist others to commit any act, that would injure Employer or
Subsidiary. So long as Employee is employed by Employer or Subsidiary,
Employee shall observe and fulfill proper standards of fiduciary responsibility
attendant upon his service and office.
4. EMPLOYEE'S OBLIGATION TO REFRAIN FROM USING OR DISCLOSING INFORMATION:
4.1. As part of Employee's fiduciary duties to Employer and Subsidiary,
Employee agrees, both during the term of this Agreement and thereafter, to
protect, preserve the confidentiality of and safeguard Employer's and
Subsidiary's secret or confidential information, knowledge, ideas, concepts,
improvements, discoveries and inventions, and, except as may be expressly
required by Employer, Employee shall not, either during his employment by
Employer or Subsidiary or thereafter, directly or indirectly, use for his own
benefit or for the benefit of another, or disclose to another, any of such
information, ideas, concepts, improvements, discoveries or inventions.
4.2. Upon termination of his employment with Employer and Subsidiary, or
at any other time upon request, Employee shall immediately deliver to Employer
all documents embodying any of Employer's or Subsidiary's secret or
confidential information, ideas, concepts, improvements, discoveries and
inventions.
5. INITIAL TERM; EXTENSIONS OF THE TERM:
5.1. The term of this Agreement shall commence on the effective date
hereof and shall end on the third anniversary of the effective date.
5.2. The term of this Agreement shall automatically be extended for
additional one-year periods commencing on the anniversary date hereof and on
each anniversary thereafter, unless either Employee or Employer gives written
notice to the other on or before any March 1 of his or its intention not to
extend this Agreement. Notwithstanding anything to the contrary contained
herein, it is the intention of the parties hereto that, unless and until such
notice of non-extension is provided by either Employer or Employee as provided
in the immediately preceding sentence (or unless this Agreement is terminated
pursuant to the terms hereof), as of each anniversary date hereafter the term
of this Agreement shall be extended for one year so as to provide for a
prospective three-year employment term as of each such anniversary date.
6. TERMINATION OTHER THAN BY EXPIRATION OF THE TERM: Employer or Employee
may terminate Employee's employment under this Agreement at any time, but only
on the following terms:
6.1. Employee may terminate his employment under this Agreement at any
time upon at least ninety (90) days' prior written notice to Employer.
-3-
6.2. Employer may terminate Employee's employment under this Agreement at
any time, without prior notice, for "due cause" upon the good faith
determination by the Board of Directors of Employer or Subsidiary that "due
cause" exists for the termination of the employment relationship. As used
herein, the term "due cause" shall mean any of the following events:
(i) any intentional misapplication by Employee of Employer's or
Subsidiary's funds, or any other act of dishonesty injurious to Employer or
Subsidiary committed by Employee; or
(ii) Employee's conviction of a crime involving moral turpitude; or
(iii) Employee's use or possession of any controlled substance or abuse
of alcoholic beverages; or
(iv) Employee's breach, non-performance or non-observance of any of the
terms of this Agreement if such breach, non-performance or non-observance shall
continue beyond a period of ten (10) days immediately after notice thereof by
Employer to Employee; or
(v) any other action by the Employee involving willful and deliberate
malfeasance or gross negligence in the performance of Employee's duties.
6.3. In the event Employee is incapacitated by accident, sickness or
otherwise so as to render Employee mentally or physically incapable of
performing the services required under SECTION 1 of this Agreement for a period
of one hundred eighty (180) consecutive days, and such incapacity is confirmed
by the written opinion of two (2) practicing medical doctors licensed by and in
good standing in the state in which they maintain offices for the practice of
medicine, upon the expiration of such period or at any time reasonably
thereafter, or in the event of Employee's death, Employer may terminate
Employee's employment under this Agreement upon giving Employee or his legal
representative written notice at least thirty (30) day's prior to the
termination date. Employee agrees, after written notice by the Board of
Directors of Employer or Subsidiary, a duly authorized committee thereof or any
officer of Employer or Subsidiary, to submit to examinations by such practicing
medical doctors selected by the Board of Directors of Employer or Subsidiary, a
duly authorized committee thereof or any officer of Employer or Subsidiary.
6.4. Employer may terminate Employee's employment under this Agreement at
any time for any reason whatsoever, even without "due cause," by giving a
written notice of termination to Employee, in which case the employment
relationship shall terminate immediately upon the giving of such notice.
7. EFFECT OF TERMINATION:
7.1. In the event the employment relationship is terminated (a) by
Employee's refusal to continue his employment under the terms and conditions of
this Agreement, or (b) by Employer for "due cause" pursuant to Section 6.2
hereof, all compensation and benefits shall cease as of the date of
termination, other than: (i) those benefits that are provided by retirement
and benefit plans and programs specifically adopted and approved by Employer or
Subsidiary for Employee that are earned and vested by the date of termination,
and (ii) Employee's pro rata annual salary through the date of termination.
Employee's right to exercise stock options and Employee's rights in other stock
plans, if any, shall remain governed by the terms and conditions of the
appropriate stock plan.
-4-
7.2. If Employee's employment relationship is terminated pursuant to
Section 6.3 hereof due to Employee's incapacity or death, Employee (or, in the
event of Employee's death, Employee's legal representative) will be entitled to
those benefits that are provided by retirement and benefits plans and programs
specifically adopted and approved by Employer or Subsidiary for Employee that
are earned and vested at the date of termination and, even though no longer
employed by Employer or Subsidiary, shall continue to receive the salary
compensation (payable in the manner as prescribed in the second sentence of
Section 2.1) for six (6) months following the date of termination. Employee
(or, in the event of Employee's death, Employee's legal representative) shall
not, however, be entitled to any bonuses not yet paid at the date of the
termination of employment. Employee's right to exercise stock options and
Employee's rights in other stock plans, if any, shall remain governed by the
terms and conditions of the appropriate stock plans.
7.3. IF Employer (i) terminates the employment of Employee other than
pursuant to Section 6.2 hereof for "due cause" or other than for a disability
or death pursuant to Section 6.3 hereof or (ii) decreases Employee's salary
below its then current level, as such salary level may have been increased from
time to time above the initial level specified in Section 2.1, or reduces any
other employee benefits and perquisites below the levels provided for by the
terms of Section 2 hereof, other than as a result of any amendment or
termination of any employee and/or executive benefit plan or arrangement, which
amendment or termination is applicable to all employees of Employer or
Subsidiary, THEN such action by Employer, unless consented to in writing by
Employee, shall be deemed to be a constructive termination by Employer of
Employee's employment (a "Constructive Termination"). In the event of a
Constructive Termination, the Employee shall be entitled to receive, in a lump
sum within 30 days after the date of the Constructive Termination, an amount
equal to one year's salary (undiscounted) in effect immediately prior to the
event giving rise to the Constructive Termination. For purposes of this
Section 7.3, the term "salary" shall mean the annual rate of compensation,
excluding any bonuses, provided to Employee under Section 2.1 hereof
immediately prior to the event giving rise to the Constructive Termination. In
the event of such Constructive Termination, all other rights and benefits
Employee may have under the employee benefit plans and arrangements of Employer
generally shall be determined in accordance with the terms and conditions of
such plans and arrangements.
8. EMPLOYEE'S NON-COMPETITION OBLIGATION:
8.1. Employee acknowledges and agrees that he serves in a special
capacity for Employer and Subsidiary pursuant to which he will acquire unique
knowledge of the operations and business of Employer and Subsidiary and, as
such, will not be engaged in a common calling. During the existence of
Employee's employment by Employer and Subsidiary hereunder and, if the
employment of Employee is terminated by Employer for any reason pursuant to
Section 6.2 or Section 6.4, or Employee voluntarily terminates his employment,
for a period of one year from the date on which he shall cease to be employed
by Employer or Subsidiary, 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, in any of
the Business Territories (as defined below), engage in any business in
competition with the business conducted by Employer, Subsidiary or any
subsidiary of Employer or Subsidiary, whether for his own account or otherwise,
or solicit, canvass or accept any business or transaction for or from any other
company or business in competition with such business of Employer or Subsidiary
in any of the Business Territories. For purposes hereof, the term "Business
Territories" means the geographical regions within the geographic borders of
each State in which Employer or Subsidiary is doing business during the term of
this Agreement and (in the case of post-employment non-competition obligations)
at the date of the termination of Employee's employment with Employer and
Subsidiary and any state in which Employer and Subsidiary had reasonable
prospects of engaging in business during the noncompetition period following
termination of employment.
-5-
8.2. It is the desire and intent of the parties that the provisions of
Section 8.1 shall be enforced to the fullest extent permissible under the laws
and public policies of the State of Texas. Accordingly, if any particular
portion of Section 8.1 shall be adjudicated to be invalid or unenforceable,
Section 8.1 shall be deemed amended to (i) reform the particular portion to
provide for such maximum restrictions as will be valid and enforceable or if
that is not possible, then (ii) delete therefrom the portion thus adjudicated
to be invalid or unenforceable.
8A. CHANGE IN CONTROL
8A.1 Notwithstanding anything to the contrary otherwise provided herein,
if a "change in control" (as defined below) of Employer occurs and within
twelve (12) months from the date of such "change in control," Employee
voluntarily terminates the employment relationship under this Agreement by
giving ninety (90) days' written notice to Employer and Subsidiary under
Section 6.1 hereof or within such twelve (12) month period Employer or
Subsidiary terminates Employee's employment without "due cause" pursuant to
Section 6.4, then Employee, even though no longer employed by Employer, shall
be entitled to earned and vested bonuses at the date of termination plus a
payment in the amount of the remainder of Employee's current year's salary
(undiscounted) plus the present value (employing a discount of 8%) of two
additional years' salary, based on the salary in effect immediately prior to
the "change in control," payable at the option of the Employee in either a lump
sum within 30 days after the date of termination or annually over a three-year
period. For purposes of this Section 8A.1, the term "salary" shall mean the
sum of (i) the annual rate of compensation provided to Employee under Section
2.1 hereof immediately prior to the "change in control," plus (ii) the average
annual cash bonuses or other cash incentive compensation paid to Employee by
Employer for the three years in the three year period immediately preceding the
year in which there shall occur a "change in control." Employee's right to
exercise stock options and Employee's rights in other stock plans, if any,
shall remain governed by the terms and conditions of the appropriate stock
plan. "Change in control" shall be deemed to have occurred if (i) any "person"
(as such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934), becomes the beneficial owner, directly or indirectly, of
securities of Employer representing 30% or more of the combined voting power of
Employer's then outstanding securities, (ii) during any period of 12 months,
individuals who at the beginning of such period constitute the Board of
Directors of Employer cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by Employer's stockholders
of each new director was approved by a vote of at least a majority of the
directors then still in office who were directors at the beginning of the
period, or (iii) a person (as defined in clause (i) above) acquires (or, during
the 12-month period ending on the date of the most recent acquisition by such
person or group of persons has acquired) gross assets of Employer that have an
aggregate fair market value greater than or equal to over 50% of the fair
market value of all of the gross assets of Employer immediately prior to such
acquisition or acquisitions.
8A.2 Notwithstanding any other provision of this Agreement, if (a) there
is a change in the ownership or effective control of Employer or in the
ownership of a substantial portion of the assets of Employer [within the
meaning of Section 280G(b)(2)(A) of the Internal Revenue Code (the "Code")],
and (b) the payments otherwise to be made pursuant to Section 8A.1 and any
other payments or benefits otherwise to be paid to Employee in the nature of
compensation to be received by or for the benefit of Employee and contingent
upon such event (the "Termination Payments") would create an "excess parachute
payment" within the meaning of Section 280G of the Code, then Employer shall
make the Termination Payments in substantially equal installments, the first
installment being due within thirty days after the date of termination and each
subsequent installment being due on January 31 of each year, such that the
aggregate present value of all Termination Payments, whether pursuant to this
Agreement or otherwise, will be as close as possible to, but not exceed, 299%
of the Employee's base amount, within the meaning of Section 280G.
9. OBLIGATIONS TO REFRAIN FROM COMPETING UNFAIRLY:
-6-
9.1. In addition to the other obligations agreed to by Employee in this
Agreement, Employee agrees that during his employment with Employer or
Subsidiary and following the termination of his employment by Employer and
Subsidiary he shall not at any time, directly or indirectly, (a) induce,
entice, or solicit any employee of Employer or Subsidiary to leave his
employment, or engage in any discussions or communications with any employee of
Employer or Subsidiary concerning such employee's employment or the possibility
of such employee's leaving his employment or (b) contact, communicate or
solicit any customer of Employer or Subsidiary derived from any customer list,
customer lead, mail, printed matter or other information secured from Employer,
Subsidiary or their present or past employees, or (c) in any other manner use
any customer lists or customer leads, mail, telephone numbers, printed material
or material of Employer or Subsidiary relating thereto.
10. MISCELLANEOUS:
10.1. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when mailed by registered mail or
certified mail, return receipt requested, as follows (provided that notice of
change of address shall be deemed given only when received):
If to Employer or Subsidiary, then notice must be given to:
AmeriCredit Corp.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Vice Chairman, President and Chief Operating Officer
If to Employee, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxx 00000
or to such other names or addresses as Employer, Subsidiary or Employee, as the
case may be, shall designate by notice to the other party hereto in the manner
specified in this Section 10.1.
10.2. This Agreement shall be binding upon and inure to the benefit of
Employer, its successors, legal representatives and assigns, and upon Employee,
his heirs, executors, administrators, representatives and assigns. Employee
agrees that his rights and obligations hereunder are personal to him and may
not be assigned without the express written consent of Employer and Subsidiary.
10.3. This Agreement may not be modified in any respect by any verbal
statement, representation or agreement made by any employee, officer, or
representative of Employer or Subsidiary or by any written agreement unless
signed by an officer of Employer who is expressly authorized by Employer to
execute such document.
10.4. (a) If any provision of this Agreement or application thereof to
anyone or under any circumstances shall be determined to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
-7-
(b) Without intending to limit the remedies available to Employer
or Subsidiary, it is mutually understood and agreed that Employee's services
are of a special, unique, unusual, extraordinary and intellectual character
giving them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and, therefore, in the
event of a breach by Employee, Employer shall be entitled to equitable relief
by way of injunction or otherwise.
(c) Employee acknowledges that Sections 4, 8 and 9 are expressly
for the benefit of Employer and Subsidiary, that Employer and Subsidiary would
be irreparably injured by a violation of Section 4, 8 and/or 9 and that
Employer or Subsidiary would have no adequate remedy at law in the event of
such violation. Therefore, Employee acknowledges and agrees that injunctive
relief, specific performance or any other appropriate equitable remedy (without
any bond or other security being required) are appropriate remedies to enforce
compliance by Employer with Section 4, Section 8 and Section 9.
10.5. Employee acknowledges that, from time to time, Employer or
Subsidiary may establish, maintain and distribute employee manuals or handbooks
or personnel policy manuals, and officers or other representatives of Employer
or Subsidiary may make written or oral statements relating to personnel
policies and procedures. Such manuals, handbooks and statements are intended
only for general guidance. No policies, procedures or statements of any nature
by or on behalf of Employer or Subsidiary (whether written or oral, and whether
or not contained in any employee manual or handbook or personnel policy
manual), and no acts or practices of any nature shall be construed to modify
this Agreement or to create express or implied obligations of any nature to
Employee.
10.6. The laws of the State of Texas will govern the interpretation,
validity and effect of this Agreement without regard to the place of execution
or the place for performance thereof, and Employer and Employee agree that the
state and federal courts situated in Tarrant County, Texas shall have personal
jurisdiction over Employer and Employee to hear all disputes arising under this
Agreement. This Agreement is to be at least partially performed in Tarrant
County, Texas, and, as such, Employer and Employee agree that venue shall be
proper with the state or federal courts in Tarrant County, Texas to hear such
disputes. In the event either Employer or Employee is not able to effect
service of process upon the other with respect to such disputes, Employer and
Employee expressly agree that the Secretary of State for the State of Texas
shall be an agent of Employer and/or the Employee to receive service of process
on behalf of Employer and/or the Employee with respect to such disputes.
11. ADDITIONAL INSTRUMENTS:
Employee and Employer shall execute and deliver any and all additional
instruments and agreements that may be necessary or proper to carry out the
purposes of this Agreement.
-8-
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
By:
----------------------------------
Xxxxxxx X. Xxxxxx
-9-
