Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS 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 of
Employer and Subsidiary 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.
NOW, THEREFORE, in consideration of Employee's employment by Employer
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 and Treasurer
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 $145,000
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.
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.
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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 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.
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
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(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.
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
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have been increased from time to time above the initial level specified in
Section 2.1,or reduces the 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 had reasonable prospects of engaging
in business during the noncompetition period following termination of
employment.
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
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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:
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.
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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: Xxxxxx X. Xxxxx
Vice Chairman and Chief Financial Officer
If to Employee, to:
Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
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 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.
(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
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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.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first written above.
AmeriCredit Corp.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Vice Chairman and
Chief Financial Officer
EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
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