EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated and effective as of the date set forth
on the signature page hereof, 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"), AmeriCredit
Financial Services, Inc., a wholly-owned subsidiary of Employer ("Subsidiary"),
and Xxxx Xxxxx (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/her business experience are of material importance to Employer and
Subsidiary.
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 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 - Strategic Alliance
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. 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/her 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/her time, efforts, skills and attention to
the affairs of Employer and Subsidiary in order that he/she shall faithfully
perform his/her duties and obligations hereunder and such as may be assigned to
or vested in him/her 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/her
performance of the duties assigned to him/her 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/her 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.
1.4. Employee acknowledges and agrees that his/her responsibilities and
business activities hereunder include, but are not limited to, (i) managing and
supervising Subsidiary's Strategic Alliances Group, which group solicits
business on behalf of Subsidiary from and through certain Strategic Alliance
Contacts (as defined below), (ii) developing, maintaining and implementing, for
the purpose of soliciting and transacting business with the Strategic Alliance
Contacts, Subsidiary's underwriting, credit scoring, pricing, loan origination,
marketing and risk management strategies consistent with Subsidiary's
objectives, policies and procedures for such business activities, (iii)
reviewing, evaluating and managing the financial and operating performance of
the Strategic Alliances Group to ensure that credit loss, default, delinquency
and other loan portfolio performance objectives established by Subsidiary are
met, and (iv) evaluating the performance and business prospects of existing and
potential motor vehicle dealerships that transact business with Subsidiary.
1.5. For purposes of this Agreement, "Strategic Alliance Contacts" shall
include the following entities and persons that have actually communicated with
Subsidiary's Strategic Alliances Group, or that have actually been contacted or
solicited by Subsidiary's Strategic Alliances Group, with respect to a possible
alliance or other business arrangement with Subsidiary for the financing of
motor vehicles, the purchase of motor vehicle retail installment contracts
and/or the review of credit applications pertaining to such motor vehicle
financing arrangements: (i) automobile dealerships, groups of dealerships
affiliated through common ownership or control, and dealership principals,
employees and agents; and (ii) banks, savings associations, credit unions,
finance companies and other financial institutions.
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 $115,000
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/her in the performance of his/her 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.
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2.4 As long as this Agreement in is effect, Employer agrees to provide
and maintain term 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 be with such insurer(s) as Employee may select, provided that
such insurer(s) is reasonably satisfactory to Employer and Subsidiary.
3. Preservation of Business; Fiduciary Responsibility:
Employee shall use his/her 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/her 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, proprietary and confidential information, knowledge, ideas,
concepts, improvements, discoveries and inventions, and, except as may be
expressly required by Employer, Employee shall not, either during his/her
employment by Employer or Subsidiary or thereafter, directly or indirectly, use
for his/her own benefit or for the benefit of another, or disclose to another,
any of such information, ideas, concepts, improvements, discoveries or
inventions. Employee specifically acknowledges and agrees that Subsidiary's
credit underwriting processes, credit scoring models and pricing strategies are
proprietary and confidential and were developed by Subsidiary for its
competitive advantage at great expense of time and money.
4.2. Upon termination of his/her 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 December 1 of his/her 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/her employment under this Agreement at
any time upon at least thirty (30) days' prior written notice to Employer.
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6.2. Employer may terminate Employee's employment under this Agreement
at any time for "due cause" upon the good faith determination by the Board of
Directors of Employer or Subsidiary, following reasonable notice to Employee and
opportunity for Employee to meet with such Board of Directors, 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/her 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/her 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.
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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/she serves in a special
capacity for Employer and Subsidiary pursuant to which he/she 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/her
employment, for a period of one year from the date on which he/she 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, engage in the following activities, businesses or practices within
the Business Territories (as defined below): (i) contact, canvass, or
communicate with Strategic Alliance Contacts (as defined in Section 1.5 above)
for the purpose of soliciting such Strategic Alliance Contacts to sell motor
vehicle retail installment contracts or forward credit applications to any bank,
savings association, finance company or other person or entity engaged in the
business of purchasing, taking assignments, collecting or servicing motor
vehicle retail installment contracts (each a "Competing Entity"); and (ii)
underwrite, analyze, review or evaluate, on behalf of any Competing Entity,
credit applications, credit bureau data, credit scores or other information
received or solicited from Strategic Alliance Contacts.
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
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and public policies of the state determined pursuant to Section 10.6 hereof.
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.
8.3. Employee acknowledges and agrees that his/her responsibilities to
Employer and Subsidiary includes, enhances or facilitates the types of
activities and business functions listed in Section 8.1(i) and (ii) above, and
that Employer and Subsidiary would be irreparably harmed and economically
disadvantaged if Employee were to engage in similar activities on behalf of a
Competing Entity during the noncompetition period specified in Section 8.1.
Employee further acknowledges and agrees that the scope of his/her activities on
behalf of Employer and Subsidiary is integral to the success of Employer's and
Subsidiary's business activities in all states, cities, metropolitan areas and
geographic locations in which Employer and Subsidiary transact business (which
area, as of the date of this Agreement, includes substantially the entire United
States of America) and that it is impossible to specify more limited geographic
regions, states, counties, metropolitan areas or cities to which the
noncompetition provisions of Section 8.1 shall be limited. As a result, it is
the intent of the parties hereto that the provisions of Section 8.1 shall apply
to restrict Employee's activities as therein provided with respect to all
Strategic Alliances Contacts and Competing Entities wherever located.
8.4. Notwithstanding anything to the contrary contained in this
Agreement, Sections 8.1, 8.2 and 8.3 shall be null and void and of no further
force and effect in the event a petition in bankruptcy, insolvency or for
reorganization or arrangement is filed by or against Employer or Subsidiary
pursuant to any federal or state statute and, with respect to any petition filed
against it, Employer or Subsidiary, as the case may be, fails to secure a stay
or discharge thereof within sixty (60) days after the filing of same (a
"Bankruptcy Event"). In the event of a Bankruptcy Event, Employee shall
thereafter be relieved of all non-competition obligations under Sections 8.1,
8.2 and 8.3 hereof; provided however, that all other terms and provisions of
this Agreement shall continue in full force and effect.
9. Obligations to Refrain From Competing Unfairly:
9.1. In addition to the other obligations agreed to by Employee in this
Agreement, Employee agrees that during his/her employment with Employer or
Subsidiary and following the termination of his/her employment by Employer and
Subsidiary he/she shall not at any time, directly or indirectly, (a) induce,
entice, or solicit any employee of Employer or Subsidiary to leave his/her
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/her 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.
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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:
Xxxx Xxxxx
000 Xxxxxxxxxx
Xxxxxx, 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/her heirs, executors, administrators, representatives and assigns. Employee
agrees that his/her rights and obligations hereunder are personal to him/her 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.
(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.
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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 in which Employee resides upon Employee's
resignation or termination of employment for any reason, or upon the
non-extension of the term hereof, will govern the interpretation, validity and
effect of this Agreement. If a dispute or question as to the interpretation,
validity and/or effect of this Agreement arises prior to Employee's resignation
or termination of employment, or prior to the non-extension of the term hereof,
the laws of the state in which Employee resides at the time of the occurrence of
the events giving rise to such dispute or question will govern the
interpretation, validity and effect of this Agreement.
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.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the following date: March 25, 1998.
AmeriCredit Corp.
By:
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
Vice Chairman, President and
Chief Operating Officer
EMPLOYEE
By:
--------------------------------
Xxxx Xxxxx
AmeriCredit Financial Services, Inc.
By:
--------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Operating
Officer
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