Exhibit 10 (bb)
EMPLOYMENT AGREEMENT
This Agreement is entered into, to be effective as of June 1, 2004, by
and between Warrantech Consumer Product Services, Inc., a Connecticut
corporation, with its principal place of business located at 0000 Xxxxxxx 000,
Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Employer"), and Xxxxxxx X. Xxxxxxxx, an
individual residing at 0000 Xxxx Xxxx, Xxxxxxx, Xxxxx 00000 ("Executive").
RECITALS
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WHEREAS, Employer recognizes that Executive will be a key member of
management and important to the long term development and prospects of Employer;
and
WHEREAS, Employer desires to employ Executive and Executive desires to
be employed by Employer pursuant to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the forgoing and the terms and
conditions set forth herein, Employer and Executive hereby agree as follows:
IX. Employment and Duties
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Employer hereby employs Executive, and Executive hereby accepts such
employment, upon the terms and conditions set forth in this Agreement. Executive
shall render such executive, managerial, supervisory, developmental, marketing,
or other services as Employer may specify from time to time, subject at all
times to the direction and control of the Chairman and Chief Executive Officer
for Warrantech Corporation, Employer's Board of Directors or any designee of any
thereof. Executive shall serve as and with the title of President of Employer.
X. Term
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The term of Executive's employment under this Agreement shall commence
on June 1, 2004 and shall continue through March 31, 2007.
XI. Compensation
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3.1 Salary. Employer shall pay Executive a base salary at the rate
of One Hundred Seventy-Five Thousand Dollars ($175,000) for each twelve-month
period during the term of this Agreement. Such base compensation shall be
payable in accordance with Employer's payroll practices as in effect from time
to time.
3.2 Signing Bonus. Executive will receive Twenty-Five Thousand
Dollars ($25,000) on or about five (5) days after Employer's receipt of a fully
executed employment agreement.
3.3 Incentive Compensation. Executive shall be eligible to receive
an annual bonus in the amount of Twenty-Five Thousand Dollars ($25,000) based on
Employer meeting or exceeding ninety per cent (90%) of its net sales revenue and
operating income goals as established in Employer's budget for each fiscal year
ending during the term of this agreement. In the event, however, that Employer
meets or exceeds one hundred twenty-five per cent (125%) of its net sales
revenue and operating income goals as established in the Employer's budget for a
give fiscal year, Executive shall be entitled to receive an annual incentive
bonus in the amount of Fifty Thousand Dollars ($50,000). In determining
Executive's entitlement to the incentive compensation described herein, Employer
shall rely upon Employer's financial statements as prepared by its independent
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certified public accountants, which financial statements shall be prepared in a
manner consistent with generally accepted accounting principles. All bonuses
described in this section are payable annually and shall be paid, if due, within
fifteen (15) days after the filing of the Employer's Annual Report on Form 10-K
with the Securities and Exchange Commission. Executive acknowledges that if
Executive's employment is terminated by the Employer for cause prior to the
payment of any bonus, Executive shall forfeit any interest he has in such bonus
and shall not be entitled to any portion thereof..
3.4 Stock Options. Executive shall be eligible to participate in
the stock option plan subject to terms and conditions set forth in Exhibit "A"
hereof.
3.5 Medical Insurance. During the term of his employment,
Executive shall be eligible to participate in the Employer's management employee
benefits and retirement plans, as they are in existence on the date of this
Agreement, or as they may be amended or added hereafter, to the same extent as
other executives of the Employer at a similar level, subject to the terms
contained in the plan documents of any such plan and with any required
executive/employee contribution to remain the responsibility of the Executive.
3.6 Other Compensation. In addition to the compensation heretofore
set forth, or as may be hereinafter provided, Employer shall provide Executive
during his employment any and all benefits commensurate with his position, which
Employer, in its sole and absolute discretion, may make available to its
executive officers (or employees in general, if any one is not available solely
for executive officers) under any general pension plan, or other executive
benefit plan which may be in effect at any time or from time to time during the
employment period, subject to the terms contained in the plan documents of any
such plan and with any required executive/employee contribution to remain the
responsibility of the Executive.
3.7 Automobile. It is contemplated that to perform the services
required by this Agreement, Executive shall obtain and remain fully responsible
for the maintenance and repair of an automobile, for which Employer shall
provide Executive with an expense allowance at the rate of Six Thousand Dollars
($6,000) per annum.
3.8 Life Insurance. Employer, for the benefit of Executive, shall
provide group term-life coverage in an amount equal to one hundred percent
(100%) of Executive's base salary, not to exceed One Hundred Fifty Thousand
Dollars ($150,000).
3.9 Club Membership. Employer will maintain Executive's membership
to Timarron Country Club, Southlake, Texas and corresponding dues will be
payable by Employer. Membership expenses shall be recorded as income in
accordance with the applicable regulations of the Internal Revenue Service.
3.10 Expenses. Employer shall reimburse Executive in accordance
with Employer's expense reimbursement policies for all reasonable and necessary
expenses including, without limitation, travel and entertainment expenses,
incurred by Executive in connection with the business of Employer. Expenses
relating to membership in and attendance at trade and business associations and
conventions shall be reimbursed subject to the prior approval of Employer. All
such reimbursement shall be paid upon presentation of expense statements or
vouchers or such other supporting information as Employer may reasonably
require.
XII. Extent of Service
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Executive shall devote his full time, attention, energies and skill to
the business of Employer, as directed by Employer, and shall assume and perform
such responsibilities and duties as may be assigned to him from time to time by
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the Chairman and Chief Executive Officer for Warrantech Corporation, Employer's
Board of Directors or any designee of either thereof. Executive shall be
required to travel to such locations as may be directed by Employer in the
course of Executive's duties hereunder. During his employment, Executive shall
not engage, and shall not solicit any employees of the Employer or its
affiliates to engage, in any other commercial activities.
XIII. Termination
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Notwithstanding any contrary provisions herein contained, the
employment of Executive pursuant to this Agreement may be terminated before the
expiration of the term as specified in the following provisions of this Article
V, but such termination shall not affect the obligations of Executive set forth
in Article VII hereof.
5.1 Death or Disability. This Agreement, and all obligations of
the Employer hereunder, shall terminate immediately upon the death of Employee.
In the event that Employee is, due to any physical or mental injury, illness,
defect or other incapacitating condition, unable to perform his duties and
responsibilities for ninety (90) consecutive days, Employer may, in its
discretion, terminate this Agreement at any time thereafter and Employer shall
have no further obligation or liability to Executive.
5.2 By Employer, For Cause.
(a) Employer shall have the right to terminate Executive's
employment under this Agreement upon the material failure, material neglect or
material refusal of the Executive to:
(i) Perform the duties assigned to Executive under or pursuant to
this Agreement; or
(ii) Abide by the other covenants, terms and conditions of this
Agreement.
Prior to effecting any such termination, Employer shall provide Executive with
notice of such failure, neglect or refusal and shall give Executive a reasonable
time period, which shall not be more than ten days, in which to correct such
problem.
(b) Employer shall have the right to immediately terminate
Executive's employment under this Agreement for certain instances of misconduct
including, but not limited to:
(i) Misappropriating any funds or property of Employer;
(ii) Attempting to obtain personal profit from any transaction in
which Employer has an interest;
(iii) Activities by Executive of a public nature failing to conform
to the community standard of generally accepted personal or
business conduct that such activities may reasonably be
expected to reflect badly upon the public image of Employer or
its business;
(iv) Executive's conviction of, or pleading of guilty, or no
contest, to a felony, or a misdemeanor involving dishonesty or
moral turpitude.
5.3 By Employer or Executive, Without Cause. This Agreement may be
terminated by Employer or Executive prior to the expiration of the term hereof
upon not less than thirty (30) days prior written notice. Notwithstanding the
forgoing, however, in the event that Executive gives notice of his intent to
terminate this Agreement Employer may elect, in its sole discretion, to
terminate this Agreement and Executive's employment hereunder at any time after
receipt of notice from Executive.
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5.4 Effect of Termination. In the case of termination pursuant to
sections 5.1, 5.2 or 5.3 (if terminated by Executive), the salary and other
compensation specified in Section III, unless otherwise specified, shall
immediately terminate and cease to accrue. Executive shall not be entitled to
any stock options unless they have fully vested and no credit will be given for
partial years of employment to ascertain the amount of options that are fully
vested.
XIV. Inventions
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6.1 Definitions. As used herein "Inventions" shall mean all
discoveries, inventions, improvements, and ideas relating to any process,
formula, program or software, machine, device, manufacture, composition of
matter, plan or design, whether patentable or not, and specifically includes,
but is not limited to, all designs and developments, of whatsoever nature,
relating to computer hardware, software or programs.
6.2 Rights to Inventions. Executive shall, during the period of
his employment with Employer, make prompt and full disclosure of all Inventions
which Executive makes or conceives, individually, jointly, or with any other
executive, or Employer or affiliate of Employer, during the period of
Executive's employment by Employer. All such inventions shall become Employer's
exclusive property.
Notwithstanding the foregoing, Executive shall retain all his rights
in, and shall not be required to assign to the Employer any invention
(hereinafter an "Excluded Invention"): (a) which was developed entirely on
Executive's own time, and (b) which does not relate directly to or have any
application to the business of Employer or any Warrantech affiliate or to their
actual or demonstrably anticipated research or development, or which does not
result from any work performed by Executive for Employer. This paragraph
constitutes written notification to the Executive of the inventions which
Executive is not required to assign to Employer. Executive shall advise employer
of any invention made or conceived by Executive which Executive believes he is
entitled to pursuant to this paragraph.
6.3 Records. Executive will keep and maintain complete written
records of all Inventions made or conceived by Executive, and of all work on
investigations done or carried out by Executive for Employer at all stages
thereof, which records shall be the property of Employer, except for records of
the Excluded Inventions. Upon termination of his employment with Employer,
Executive agrees to deliver promptly to Employer any unpublished memoranda,
notes, records, reports, sketches, plans, programs, software, or other documents
held by him concerning any Inventions or potential Inventions to which Employer
would be entitled pursuant to the provisions hereof, including any information,
knowledge or data relating thereto, or pertaining to the Employer's business or
contemplated business, whether confidential or not.
6.4 Assignments. During Executive's employment hereunder and after
the termination thereof, Executive shall execute, acknowledge, and deliver to
Employer all such papers, including applications for or assignments of patents
or copyrights or applications for the same, as may be necessary to enable
Employer, its nominees, successors or assigns, at its or their expense, to
publish, protect by litigation or otherwise, obtain titled and/or copyrights or
patents to the Inventions which are the property of Employer pursuant to this
Agreement, in any and all countries.
XV. Confidentiality and Non-Compete
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7.1 Non-Competition Covenant. Executives agrees that, during the
period of Executive's employment by Employer and during the one year period
immediately following Executive's employment by Employer or any Warrantech
subsidiary or affiliate in any capacity, he will not, directly or indirectly,
own, manage, operate, control, consult with or for, be employed by or an agent
for, participate in or be connected in any manner with the ownership,
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management, operation or control of any business that is competitive with the
business of Employer or any of its subsidiaries or affiliates. Further,
Executive acknowledges that, as the President of Employer, his services are
unique and extraordinary, and that the restrictions herein are reasonable for
Employer's protection of its legitimate business interests.
If any court having jurisdiction determines that the foregoing
non-compete covenant is invalid due to its duration, coverage or extent, the
covenant shall be modified to reduce its duration, coverage or extent as
necessary to make such covenant valid, and the covenant as modified then shall
be enforced.
7.2 Non-Solicitation. During his employment and for one (1) year
after the termination of that employment, for any reason, Executive will not,
directly or indirectly, either personally or on behalf of any other entity
(whether as a director, stockholder, owner, partner, consultant, principal,
employee, agent or otherwise) (i) canvas, solicit, transact or attempt to
transact any business from any person or entity who was a customer, client,
vendor, dealer, or insurance company of the Employer or any other person or
entity having a business relationship with the Employer or any prospective
customer, client, vendor, or insurance company of the Employer or any other
person or entity the Employer is in negotiations with to enter into a business
relationship during the term of Executive's employment or whose identity was
revealed to Executive during or as a consequence of his employment; (ii)
solicit, induce, entice, hire, employ or attempt to employ any individual
employed by the Company as of the termination of his employment or during the
prior 12 months; or (iii) take any action which is intended or would reasonably
be expected to, adversely affect the Employer, its business, reputation or its
relationship with its actual or prospective clients, customers, suppliers, or
investors.
7.3 Confidentiality and Trade Secrets. During and after the terms
of his employment by Employer, Executive shall not communicate, divulge, or use
any secret, confidential information, trade secret or confidential customer list
or any confidential information relating to customers, clients, vendors,
dealers, insurance companies, suppliers of the Employer or any other person or
entity having a relationship with the Employer or any affiliate of Employer for
any purpose whatsoever except as consented to in writing by Employer. This
obligation shall apply with respect to any such item until such item ceases
(other than through the action of Executive) to be secret or confidential.
Confidential Information shall also include all information contained or stored
in the confidential databases of the Employer containing Confidential
Information or other information of the Employer. Executive shall have no
obligation hereunder to keep confidential any Confidential Information to the
extent disclosure of any thereof is required by law or determined in good faith
by counsel to Executive to be necessary or appropriate to comply with any legal
or regulatory order, regulation or requirement; provided, however, that in the
event disclosure is required by law, Executive shall provide Employer with
prompt notice of such requirement so that Employer may seek an appropriate
protective order.
7.4 Remedies. In the event of any actual breach by either of the
parties of the provisions of this Section VII, then each shall be entitled to
all the remedies available by law or in equity, including without limitation the
right to obtain damages for said breach and non-adherence and the right to
enjoin the other, or any other person or entity in or threatening breach or
non-adherence, from continuing, and to remedy, the activities which constitute
said breach. The parties acknowledge and agree that any remedies at law may be
inadequate in the event of any breach of the provisions of this Section VII,
and, therefore they agree and acknowledge that each shall be entitled to all
equitable remedies that are appropriate in the event of such breach.
XVI. Miscellaneous.
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8.1 Entire Agreement. This Agreement contains the entire agreement
among the parties, superseding in all respects any and all prior oral or written
agreements or understandings pertaining to the subject matter hereof and
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transactions contemplated hereby, and shall be amended or modified only by
written instrument signed by all of the parties hereto.
8.2 Waiver. No waiver by any party of any condition, or of the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further and continuing waiver of any such
condition or breach of any other term, covenant, representation, or warranty of
this Agreement, or the agreements or documents executed in connection herewith.
8.3 Right of Offset. If at any time Employer is obligated to make
payments to Executive under this Agreement whether as compensation,
reimbursement of expenses or otherwise, Employer shall have the right to offset
against said obligation any amount which Executive is obligated to pay to
Employer or any corporation controlling, controlled by or under common control
with the Employer at the time of offset. In the event that the amount which
Employer seeks to offset is in dispute or otherwise unliquidated, Employer may
nevertheless exercise its right of offset, but if it is ultimately determined
that Employer was not entitled to such offset, Employer shall, in addition to
the amount not properly offset, pay Executive interest on such amount from the
date of offset to the date of payment at 6% per annum. In the event that it is
necessary for Executive to take any action, whether at law or in equity, to
recover amounts which employer inappropriately withheld under this provision,
then the prevailing party shall be entitled to reasonable attorney's fees, costs
and other necessary disbursements in addition to any other relief to which it
may be entitled.
8.4 Binding Effect; Assignment. This Agreement shall be binding
upon, and shall inure to the benefit of and be enforceable by, the parties
hereto and their respective heirs, successors, and assigns, but this Agreement
shall not be assignable by Executive. In the event of (i) the merger or
consolidation of Employer with or into any other entity, (ii) the acquisition of
Employer by any entity, or (iii) the sale or other disposition by Employer of
all or substantially all of its businesses and/or assets, this Agreement shall
remain legally valid and binding and shall be enforceable by Executive against
the surviving entity.
8.5 General. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. This Agreement shall be governed,
enforced and construed under the laws of the State of Texas, without regard to
its conflict of law provisions. Any dispute arising out of or related to this
Agreement shall be subject to the exclusive jurisdiction of the Superior Court
of the State of Texas.
8.6 Resolution of Disputes. In the event of a dispute or
disagreement between the parties arising out of or in connection with this
agreement, prior to submission of the controversy to arbitration, the parties
shall submit the matter to mediation in a proceeding to be conducted in
Stamford, Connecticut. If the parties exhaust the mediation process without a
successful resolution of the matter, the dispute shall be settled in the State
of Connecticut by arbitration before a panel of three arbitrators, one selected
by Employer and one selected by Executive, with a third being appointed by the
two so chosen. The arbitration shall be commenced by the initiating party
notifying the other party of its demand for arbitration and of the arbitrator
whom it selected and demanding that the other party select its arbitrator. If
the third arbitrator is not selected within 30 days after the demand is served,
he shall be selected in accordance with the rules and regulations then in effect
of this American Arbitration Association or its successor. In any action,
whether at law, in equity, or in arbitration, to enforce or interpret the terms
of, or otherwise arising out of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, arbitrator fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled.
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8.7 Representation and Indemnity. Executive represents and
warrants to Employer that (i) he has the full right and power to enter into this
Agreement, (ii) he is not bound by any non-compete covenant or agreement that
would prevent him from accepting employment with Employer, subject Employer to
any liability arising out of his employment, or infringe on his ability to fully
perform his duties as President of Employer, and (iii) he is not subject to any
other restriction or impediment thereto that would prevent him from fully
performing his duties as President of Employer. Executive hereby indemnifies
Employer against any claims, losses, damages or expenses that Employer may incur
or suffer in connection with any inaccuracy in, or breach of, any of the
representations and/or warranties set forth in this Section 8.7.
8.8 Survivability. Notwithstanding anything herein to the
contrary, Sections 6.4, 7.1, 7.2, 7.3, 8.3, 8.6, and 8.7 above shall survive the
termination of this Agreement and shall be deemed fully enforceable thereafter.
IN WITNESS WHEREOF, the parties have duly executed this Agreement to be
effective as of June 1, 2004.
WARRANTECH CONSUMER EXECUTIVE
PRODUCT SERVICES, INC.
By: /s/ XXXX SAN XXXXXXX /s/ XXXXXXX X. XXXXXXXX
----------------------------------- -----------------------------------
Title:CEO Xxxxxxx X. Xxxxxxxx
Date: July 26, 2004 Date: July 26, 2004
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EXHIBIT A
Stock Options
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Warrantech hereby grants Executive options (the "Options") to purchase
up to Sixty Thousand Dollars ($60,000) worth of shares of Warrantech common
stock ("Stock") under its 1998 Employee Incentive Stock Option Plan, as amended
(the "Plan"), at an exercise price equal to the opening price of the Stock on
the date such Options are approved by the Board of Directors. The issuance of
the Options is subject to the approval of the Board of Directors, in its sole
discretion.
Vesting of the shares shall be as follows:
(c) Fifty per cent (50%) of the options shall vest in equal amounts at
the conclusion of each of the first, second and third years during
the term of this Agreement, provided that Employer meets at least
90% of its net sales revenue and operating income objectives as
budgeted in each immediately preceding fiscal year. Failure to
attain such objectives for any one fiscal year shall not prevent
Options from vesting for those years in which said objectives were
obtained.
(d) The remaining fifty per cent (50%) of such Options will vest in
equal amounts at the conclusion of each of the first, second and
third years during the term of this agreement.
In calculating Employer's attainment of the objectives described above, the
parties shall rely upon the financial statements of the Consolidated Companies
as prepared by its independent certified public accountants, which financial
statements shall be prepared in a manner consistent with generally accepted
accounting principles.
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