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EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of
the 31st day of January, 2000, by and between BLOCK FINANCIAL CORPORATION, a
Delaware corporation ("BFC"), and Xxxxx X. Xxxxxx ("Executive").
ARTICLE ONE
EMPLOYMENT
1.01 - Agreement as to Employment. Effective February 14, 2000
or a later date as agreed upon by both parties (the "Employment Date"), BFC
hereby employs Executive as its President, Financial Services Group, and
Executive hereby accepts such employment by BFC, subject to the terms of this
Agreement. Subject to the terms of Section 1.06 of this Agreement, either party
may terminate this Agreement for any reason, or no reason, by providing not less
than 45 days' prior written notice of such termination to the other party, and,
if such notice is properly given, this Agreement and Executive's employment
hereunder shall terminate as of the close of business on the 45th day after such
notice is deemed to have been given or such later date as is specified in such
notice. Any termination of this Agreement shall not be effective as to those
portions of this Agreement which, by their express terms as set forth below,
require performance by either party following termination of this Agreement.
1.02 - Duties.
(a) Executive is employed by BFC to serve as its President,
Financial Services Group, subject to the authority and direction of the BFC's
Board of Directors, the Chief Executive Officer of H&R Block, Inc., a Missouri
corporation ("Block"), and the Chief Operating Officer of Block. Subject to the
foregoing, the Executive shall have such authority and responsibility and duties
as are normally associated with the position of President of an operating
subsidiary.
(b) So long as he is employed under this Agreement, Executive
agrees to devote his full business time and efforts exclusively on behalf of BFC
and to competently and diligently discharge his duties hereunder. Executive
shall not be prohibited from engaging in such personal, charitable, or other
nonemployment activities that do not interfere with his full-time employment
hereunder and that do not violate the other provisions of this Agreement.
Executive shall comply fully with all reasonable policies of BFC as are from
time to time in effect and applicable to his position.
1.03 - Compensation.
(a) Base Salary. BFC shall pay to Executive a gross salary at
an annual rate of $375,000 ("Base Salary"), payable semimonthly or at any other
pay periods as BFC may use for its other executive employees. The Base Salary
shall be reviewed for adjustment by the Board of Directors of Block (the Board")
or appropriate committee thereof no less often than annually during
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the term of Executive's employment hereunder and, if adjusted by the Board, such
adjusted amount shall become the "Base Salary" for purposes of this Agreement.
(b) Additional Annual Payments. On the first, second, third,
fourth, and fifth anniversary of the Employment Date, BFC shall pay to Executive
$63,500, plus an additional amount as is necessary to "gross up" such payment to
cover the anticipated income tax liability resulting from such taxable income.
(c) Short-Term Incentive Compensation. As approved by the
Compensation Committee of the Board, Executive shall participate in the H&R
Block Short-Term Incentive Plan and the discretionary short-term incentive
program. Under such Plan and program, the Executive shall have an aggregate
target bonus for fiscal year 2000 of $206,250 and an opportunity to earn 200% of
such target bonus. The payment of the actual award under the Plan (20% of
target) shall be based upon the actual consolidated pretax earnings of Block for
its fiscal year 2000 compared to the actual consolidated pretax earnings of
Block for its fiscal year 1999. The payment of the actual award under the
discretionary program (80%) shall be based upon the performance of the Financial
Service Group and Executive's individual performance, as determined by the Chief
Operating Officer and Chief Executive Officer of Block and approved by the
Compensation Committee. For purposes of Executive's participation in such Plan
for the fiscal year ending April 30, 2000, Executive's actual incentive
compensation shall be prorated based upon the number of months during such year
that he is actually employed by BFC. Executive must remain employed through
April 30, 2000 to receive payments under the Plan and program.
(d) Performance Grant. As approved by the Board and the Chief
Operating Officer of Block, Executive shall participate in the Performance Grant
Program, subject to the terms of that Program, and shall have a target cash
award of $500,000.
(e) Stock Options. As approved by the Compensation Committee
of the Board and the Board itself, Executive shall be granted (i) on the
Employment Date a stock option under Block's 1993 Long-Term Executive
Compensation Plan (the "1993 Plan") to purchase 20,000 shares of Block's common
stock at a price per share equal to its closing price on the New York Stock
Exchange on the date of grant, such option to expire on the tenth anniversary of
the date of grant; to vest and become exercisable as to 40% of the shares
covered thereby on the third anniversary of the date of grant, as to an
additional 30% of such shares on the fourth anniversary of the date of grant,
and as to the remaining 30% of the shares on the fifth anniversary of the date
of grant; to be an incentive stock option for the maximum number of shares
permitted by Internal Revenue Code Section 422 and the regulations promulgated
thereunder; and to otherwise be a nonqualified stock option; and (ii) a stock
option to purchase a minimum of 20,000 shares of Block's common stock at a price
per share equal to its closing price on the New York Stock Exchange on the date
in fiscal year 2001 on which options are granted under the 1993 Plan to all or
substantially all other senior executive officers of Block and its subsidiaries,
such stock option to have terms and conditions consistent with the terms and
conditions of options granted to such other
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senior executive officers except as provided in Section 1.06(a).
(f) Restricted Stock. As approved by the Compensation
Committee of the Board and the Board itself, Executive shall be awarded promptly
after the Employment Date, 5,000 Restricted Shares of Block's common stock under
the 1993 Plan. One-third of the 5,000 shares shall vest, respectively, on each
of the first three anniversaries following such employment commencement date.
Prior to the time such Restricted Shares are so vested, (i) such Restricted
Shares shall be nontransferable, and (ii) Executive shall be entitled to receive
any cash dividends payable with respect to unvested Restricted Shares and vote
such unvested Restricted Shares at any meeting of shareholders of Block.
(g) Relocation Benefits.
(i) BFC shall reimburse Executive for reasonable packing,
shipping, transportation costs and other expenses incurred by Executive
in relocating himself, his family and personal property to the Greater
Kansas City Area, in accordance with the H&R Block Executive Relocation
Program.
(ii) To the extent that Executive incurs taxable income
related to any relocation benefits paid pursuant to this Agreement, BFC
shall pay to Executive such additional amount as is necessary to "gross
up" such benefits and cover the anticipated income tax liability
resulting from such taxable income.
1.04 - Business Expenses. BFC shall promptly pay directly, or
reimburse Executive for, all business expenses, to the extent such expenses are
paid or incurred by Executive during the term hereof in accordance with Block
policy in effect from time to time and to the extent such expenses are
reasonable and necessary to the conduct by Executive of BFC's business.
1.05 - Fringe Benefits. During the term of Executive's
employment hereunder, BFC shall make available to Executive such insurance, sick
leave, deferred compensation, short-term incentive compensation, bonuses, stock
options (also referred to in Subsection 1.03(e) above), retirement, vacation,
and other like benefits as are approved by the Board or the Compensation
Committee thereof and provided from time to time to the other executive-level
employees of BFC or Block's other subsidiaries.
1.06 - Termination of Employment.
(a) Termination Due to a Change in Control or Without Cause.
(i) If Executive terminates Executive's employment under
this Agreement during the 180-day period following the date of the
occurrence of a "Change in Control" of Block, or if BFC terminates
Executive's employment under this Agreement for any reason other than
for "cause," then, upon any such termination of Executive's employment,
(A)
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BFC shall pay to Executive compensation at an annual rate equal to the
sum of (I) the annual rate of Base Salary in effect upon such
termination, and (II) the aggregate short-term incentive compensation
(under the H&R Block Short-Term Incentive Plan and any discretionary
incentive program) paid by BFC to Executive for the last fiscal year
completed before the fiscal year in which the termination of employment
occurs (or, if such termination occurs prior to end of the fiscal year
in which the Employment Date occurs, the amount of actual aggregate
short-term incentive compensation to which Executive would have been
entitled (with any discretionary incentive compensation calculated at
target) had Executive remained employed through the last day of such
fiscal year), such compensation to be paid throughout the one-year
period following such termination at such periodic intervals as Base
Salary would have been made had Executive remained employed by BFC
hereunder; (B) any portion of any option to purchase shares of Block
common stock granted pursuant to Subsections 1.03(e) or 1.05 of this
Agreement and held by Executive at the time of such termination of
employment that is not yet vested in accordance with its terms shall
fully vest upon the date of such termination of employment, and shall
be exercisable to the extent so vested for a period of three months
after such date of termination of employment; (C) any Restricted Shares
granted pursuant to Subsection 1.03(f) of this Agreement and held by
Executive at the time of such termination of employment that are not
yet vested (meaning the Shares are still subject to restrictions) shall
fully vest upon the date of such termination of employment, and all
restrictions on any Restricted Shares so vested shall terminate; and
(D) HRB shall, during the one-year period following such termination,
continue Executive's health, basic life, and disability insurance
benefits (such health insurance benefits to be provided by BFC's
payment (whether directly or by reimbursement) of Executive's
premiums/contributions due as a result of Executive selecting
continuation coverage (COBRA) under the plan providing such benefits)
but only to the extent Executive does not obtain similar benefits paid
for by a third party after such termination..
(ii) For the purpose of this subsection, a "Change of
Control" shall mean:
(A) the acquisition, other than from Block,
by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 35% or more of the then outstanding
voting securities of Block entitled to vote generally in the
election of directors, but excluding, for this purpose, any
such acquisition by Block or any of its subsidiaries, or any
employee benefit plan (or related trust) of Block or its
subsidiaries, or any corporation with respect to which,
following such acquisition, more than 50% of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the voting securities of Block
immediately prior to such acquisition in substantially the
same proportion as their ownership,
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immediately prior to such acquisition, of the then outstanding
voting securities of Block entitled to vote generally in the
election of directors, as the case may be; or
(B) individuals who, as of the date hereof,
constitute the Board (as of the date hereof, the "Incumbent
Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual or individuals
becoming a director subsequent to the date hereof, whose
election, or nomination for election by Block's shareholders,
was approved by a vote of at least a majority of the Board (or
nominating committee of the Board) shall be considered as
though such individual were a member or members of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the directors of Block (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act); or
(C) approval by the shareholders of Block of
(I) a reorganization, merger or consolidation of Block, in
each case, with respect to which all or substantially all of
the individuals and entities who were the respective
beneficial owners of the voting securities of Block
immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more
than 50% of the then outstanding voting securities entitled to
vote generally in the election of directors of the corporation
resulting from such reorganization, merger or consolidation,
(II) a complete liquidation or dissolution of Block, voluntary
or involuntary, or (III) the sale or other disposition of all
or substantially all of the assets of Block.
(iii) For the purpose of this subsection, "cause"
shall mean any one or more of the following grounds:
(A) Executive's commission of an act
materially and demonstrably detrimental to the good will of
Block or any subsidiary of Block, which act constitutes gross
negligence or willful misconduct by the Executive in the
performance of his material duties to Block; or
(B) commission by Executive of any act of
dishonesty or breach of trust resulting or intending to result
in material personal gain or enrichment of Executive at the
expense of Block or any subsidiary of Block; or
(C) Executive's conviction of a misdemeanor
(involving an act of moral turpitude) or a felony; or
(D) for any reason (or no reason) at any
time after the last day of Block's fiscal year during which
Executive attains normal retirement age under
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Block's benefit plans; or
(E) Executive's death or total and permanent
disability. The term "total and permanent disability" shall
have the meaning ascribed thereto under any long-term
disability plan maintained by BFC or Block for BFC executives.
(b) Termination Due to Mutual Agreement. The parties may
terminate Executive's employment under this Agreement at any time by mutual
written agreement.
(c) No Further Obligations. Upon termination of Executive's
employment under this Agreement, BFC shall have no further obligations under
this Agreement and no further payments of Base Salary or other compensation or
benefits shall be payable by BFC to Executive, except (i) as set forth in this
Section 1.06, (ii) as required by the express terms of any written benefit plans
or written arrangements maintained by BFC and applicable to Executive at the
time of such termination of Executive's employment, (iii) as may be required by
law, or (iv) as may be mutually agreed upon between the parties in a negotiated
Employment Agreement Termination package.
ARTICLE TWO
LOAN
BFC shall loan $250,000 to Executive on the Employment Date.
Such loan and its terms shall be evidenced by a promissory note in the form
attached hereto as Exhibit A, to be signed by Executive on the Employment Date.
ARTICLE THREE
CONFIDENTIALITY
3.01 - Background and Relationship of Parties. The parties
acknowledge (for all purposes including, without limitation, Articles Three and
Four of this Agreement) that Block and its subsidiaries have been and will be
engaged in a continuous program of acquisition and development respecting their
businesses, present and future, and that, in connection with Executive's
employment by BFC, Executive will be expected to have access to all information
of value to BFC and Block and that Executive's employment creates a relationship
of confidence and trust between Executive and Block with respect to any
information applicable to the businesses of Block and its subsidiaries.
Executive will possess or have unfettered access to information that has been
created, developed, or acquired by Block and its subsidiaries or otherwise
become known to Block and its subsidiaries and which has commercial value in the
businesses in which Block and its subsidiaries have been and will be engaged and
has not been publicly disclosed by Block. All information described above is
hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes trade secrets, customer lists and
information, employee lists and information, developments, systems, designs,
know-how, marketing plans,
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product information, business and financial information and plans, strategies,
forecasts, new products and services, financial statements, budgets,
projections, prices, and acquisition and disposition plans. Proprietary
Information shall not include any portions of such information which are now or
hereafter made public by third parties in a lawful manner or made public by
parties hereto without violation of this Agreement.
3.02 - Proprietary Information is Property of Block.
(a) All Proprietary Information shall be the sole property of
Block (or the applicable subsidiary of Block) and its assigns, and Block (or the
applicable subsidiary of Block) shall be the sole owner of all patents,
copyrights, trademarks, names, and other rights in connection therewith and
without regard to whether Block (or any subsidiary of Block) is at any
particular time developing or marketing the same. Executive hereby assigns to
Block any rights Executive may have or may acquire in such Proprietary
Information. At all times, Executive will keep in strictest confidence and trust
all Proprietary Information and Executive will not use or disclose any
Proprietary Information without the written consent of Block, except as may be
necessary in the ordinary course of performing duties as an employee of BFC or
as may be required by law or the order of any court or governmental authority.
(b) In the event of the termination of Executive's employment
by BFC, Executive shall promptly deliver to BFC all copies of all documents,
notes, drawings, specifications, documentation, data, and other materials of any
nature belonging to Block or any subsidiary of Block and obtained during the
course of Executive's employment with BFC. In addition, upon such termination,
Executive will not remove from the premises of Block or any subsidiary of Block
any of the foregoing or any reproduction of any of the foregoing or any
Proprietary Information that is embodied in a tangible medium of expression.
ARTICLE FOUR
NON-HIRING; NO CONFLICTS; NONCOMPETITION
4.01 - General. The parties hereto acknowledge that, during
the course of Executive's employment by BFC, Executive shall have access to
information valuable to BFC and Block concerning the key employees of Block and
its subsidiaries ("Block Employees") and, in addition to Executive's access to
such information, Executive may, during (and in the course of) Executive's
employment by BFC, develop relationships with such Block Employees whereby
information valuable to Block and its subsidiaries concerning the Block
Employees was acquired by Executive. Such information includes, without
limitation: the identity, skills, and performance levels of the Block Employees,
as well as compensation and benefits paid by Block to such Block Employees.
4.02 - Non-Hiring. During the period of Executive's employment
hereunder and during the time Executive is receiving payments hereunder and for
a period of one year after the
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later of termination by BFC or Executive of such employment or cessation of such
payments, the Executive will not knowingly recruit, solicit, or hire any Block
Employee or otherwise induce any such Block Employee to leave the employment of
Block (or the applicable employer-subsidiary of Block) to become an employee of
or otherwise be associated with any other party or with Executive or any company
or business with which Executive is or may become associated.
4.03 - No Conflicts. Executive represents in good faith that,
to the best of his knowledge, the performance by Executive of all the terms of
this Agreement will not breach any agreement to which Executive is or was a
party and which requires Executive to keep any information in confidence or in
trust. Executive has not brought and will not bring with him to BFC or Block nor
will Executive use in the performance of employment responsibilities at BFC any
proprietary materials or documents of a former employer that are not generally
available to the public, unless Executive has obtained express written
authorization from such former employer for their possession and use. Executive
has not and will not breach any obligation of confidentiality that Executive may
have to former employers and Executive shall fulfill all such obligations during
his employment with BFC.
4.04 - Non-Competition.
(a) During any period of Executive's employment with BFC,
Executive shall not engage in, or own or control any interest in (except as a
passive investor in publicly held companies, holding less than one percent of
its outstanding securities), or act as an officer, director, or employee of, or
consultant, advisor or lender to, any firm, corporation, institution, or
business which engages in any line of business which is competitive with any
line of business of Block or any of its subsidiaries (or which Block or any
subsidiary is engaged in evaluating or developing).
(b) During the one-year period immediately following the
termination of Executive's employment hereunder by BFC or Executive, Executive
will not own or control any interest in (except as a passive investor in
publicly held companies, holding less than one percent of its outstanding equity
securities) or act as an officer, director, or employee of, or consultant,
advisor, or lender to, any firm, corporation, institution, or business which
engages in the income tax return preparation business at the time Executive's
employment terminates.
(c) During the one-year period immediately following the
termination of Executive's employment hereunder by BFC or Executive, Executive
will not own or control any interest in (except as a passive investor in
publicly held companies, holding less than one percent of its outstanding equity
securities) or act as an officer, director, or employee of, or consultant,
advisor, or lender to, any firm, corporation, institution, or business which
engages in any line of business which is competitive with any line of business
included, as of the Employment Date, in the financial services segment of Block
(for Block's financial reporting purposes); except, however, during the one-year
period immediately following termination of Executive's employment hereunder by
BFC without "cause," Executive may, at Executive's option, own or control an
interest in (including as a passive investor in a publicly held company, holding
one percent or more
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of its outstanding equity securities), or act as an officer, director or
employee of, or consultant, advisor or lender to, any firm, corporation,
institution or business which engages in any line of business which, at the time
Executive's employment terminates, is competitive with any line of business
included in such financial services segment of Block (and which does not also
engage in the income tax return preparation business) as of the Employment Date.
As of the effective date of any such ownership, control or act, HRB shall have
no further obligation to continue to pay compensation pursuant to subsection
1.06(a)(i)(A) of this Agreement and no further obligation to continue
Executive's health, basic life, and disability insurance benefits pursuant to
subsection 1.06(a)(i)(D) of this Agreement.
4.05 - Reasonableness of Restrictions. Executive and BFC
acknowledge that the restrictions contained in this Agreement are reasonable,
but should any provisions of any Article of this Agreement be determined to be
invalid, illegal, or otherwise unenforceable or unreasonable in scope by any
court of competent jurisdiction, the validity, legality, and enforceability of
the other provisions of this Agreement shall not be affected thereby and the
provision found invalid, illegal, or otherwise unenforceable or unreasonable
shall be considered by BFC and Executive to be amended as to scope of
protection, time, or geographic area (or any one of them, as the case may be) in
whatever manner is considered reasonable by that court and, as so amended, shall
be enforced.
ARTICLE FIVE
MISCELLANEOUS
5.01 - Third-Party Beneficiary. The parties hereto agree that
Block is a third-party beneficiary as to the obligations imposed upon Executive
under this Agreement and as to the rights and privileges to which BFC is
entitled pursuant to this Agreement, and that Block is entitled to all of the
rights and privileges associated with such third-party-beneficiary status.
5.02 - Entire Agreement. This Agreement constitutes the entire
agreement and understanding between BFC and Executive concerning the subject
matter hereof. No modification, amendment, termination, or waiver of this
Agreement shall be binding unless in writing and signed by Executive and a duly
authorized officer of BFC. Failure of BFC, Block or Executive to insist upon
strict compliance with any of the terms, covenants, or conditions hereof shall
not be deemed a waiver of such terms, covenants, and conditions.
5.03 - Specific Performance by Executive. The parties
acknowledge that money damages alone will not adequately compensate BFC or Block
or Executive for breach of any of the covenants and agreements herein and,
therefore, in the event of the breach or threatened breach of any such covenant
or agreement by either party, in addition to all other remedies available at
law, in equity or otherwise, a wronged party shall be entitled to injunctive
relief compelling specific performance of (or other compliance with) the terms
hereof.
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5.04 - Successors and Assigns. This Agreement shall be binding
upon Executive and the heirs, executors, assigns and administrators of Executive
or his estate and property and shall inure to the benefit of BFC, Block and
their successors and assigns. Executive may not assign or transfer to others the
obligation to perform Executive's duties hereunder.
5.05 - Withholding Taxes. From any payments due hereunder to
Executive from BFC, there shall be withheld amounts reasonably believed by BFC
to be sufficient to satisfy liabilities for federal, state, and local taxes and
other charges and customary withholdings. Executive remains primarily liable to
such authorities for such taxes and charges to the extent not actually paid by
BFC. This Section 5.05 shall not affect BFC's obligation to "gross up" any
relocation benefits paid to Executive pursuant to Subsection 1.03(g)(ii).
5.06 - Indemnification. To the fullest extent permitted by law
and Block's Bylaws, BFC hereby indemnifies during and after the period of
Executive's employment hereunder the Executive from and against all loss, costs,
damages, and expenses including, without limitation, legal expenses of counsel
selected by BFC to represent the interests of Executive (which expenses BFC
will, to the extent so permitted, advance to executive as the same are incurred)
arising out of or in connection with the fact that Executive is or was a
director, officer, employee, or agent of BFC or Block or serving in such
capacity for another corporation at the request of BFC or Block. Notwithstanding
the foregoing, the indemnification provided in this Section 5.06 shall not apply
to any loss, costs, damages, and expenses arising out of or relating in any way
to any employment of Executive by any former employer or the termination of any
such employment.
5.07 - Notices. Notices hereunder shall be deemed delivered
five days following deposit thereof in the United States mails (postage prepaid)
addressed to Executive at: [Address], with a copy to [Name and Address]; and to
BFC at: 0000 Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000; Attn: Xxxx X. Xxxxx, with
a copy to Xxxxx X. Xxxxxxxx, Esq., H&R Block, Inc., 0000 Xxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000; or to such other address and/or person designated by
either party in writing to the other party.
5.08 - Counterparts. This Agreement may be signed in
counterparts and delivered by facsimile transmission confirmed promptly
thereafter by actual delivery of executed counterparts.
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Executed as a sealed instrument under, and to be governed by,
construed and enforced in accordance with, the laws of the State of Missouri.
EXECUTIVE:
Dated: 2/01/00 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Accepted and Agreed:
BLOCK FINANCIAL CORPORATION,
a Missouri corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
Dated: 2/3/00
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