Exhibit 10.26
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“
Agreement ”) is entered into as of July 12, 2005,
by and between H & R Block Digital Tax Solutions, LLC, a
Delaware limited liability company (the “ Company
”), and Thomas A. Allanson (“ Executive
”).
ARTICLE ONE
EMPLOYMENT
1.01 Agreement as to
Employment. Effective as of the date hereof (the "
Employment Date ”), the Company hereby employs
Executive to serve in the capacity set forth in Section 1.02,
and Executive hereby accepts such employment by the Company, in
each case, subject to the terms and conditions of this Agreement.
The Company reserves the right, in its sole discretion, to change
the title of Executive at any time.
1.02 Duties.
(a) Executive is employed by the
Company to serve as its Senior Vice President Digital Tax
Solutions, subject to the authority and direction of the Board of
Directors of H&R Block, Inc., a Missouri corporation (“
Block ”), and its President and Chief Operating
Officer. Subject to the foregoing, Executive will have such
authority and responsibility as is customarily associated with the
position of Senior Vice President Digital Tax Solutions. The
Company reserves the right to modify, delete, add, or otherwise
change Executive’s job responsibilities or the person or
persons to whom Executive reports, in its sole discretion, at any
time. Executive will also perform such other duties as are
reasonably assigned to Executive from time to time.
(b) So long as Executive is
employed by the Company pursuant to the terms hereof, Executive
agrees to devote Executive’s full business time and efforts
exclusively on behalf of the Company and to competently and
diligently discharge Executive’s duties hereunder, provided
that Executive will not be prohibited from engaging in such
personal, charitable, or other nonemployment activities that do not
interfere with Executive’s full-time employment hereunder and
that do not violate the other provisions of this Agreement or the
H&R Block, Inc. Code of Business Ethics & Conduct, which
Executive hereby acknowledges having read and fully understood. By
execution hereof, Executive hereby represents that his only other
employment activities consist of his involvement, on a limited
basis, in certain equipment leasing activities (“
Equipment Leasing Activities ”), such Equipment
Leasing Activities not interfering with Executive’s full-time
employment and obligations hereunder. Executive will comply fully
with all reasonable policies of the Company, Block and/or any other
direct or indirect subsidiary of Block or parent entity of any of
their respective affiliates (the Company, Block and/or any other
direct or indirect subsidiary of Block or parent entity or any of
their respective affiliates being collectively referred to herein
as the “ Block Entities ”) as are from time to
time in effect and applicable to Executive’s position.
Executive understands that the
business
of the Block Entities may be subject to governmental regulation,
some of which may require Executive to submit to background or
similar investigations. If Executive or any Block Entity are unable
to participate, in whole or in part, in any such activity as the
result of any action or inaction on the part of Executive, then
this Agreement and Executive’s employment hereunder may be
terminated by the Company without notice.
1.03 Compensation .
(a) Base Salary . The
Company will pay to Executive a gross salary at an annual rate of
Two Hundred Sixty Five Thousand and no/100 Dollars (US $265,000.00)
(“ Base Salary ”), payable semimonthly or at any
other pay periods as the Company may use for its other
similarly-situated employees. The Base Salary will be reviewed for
adjustment no less often than annually during the term of
Executive’s employment hereunder and, if adjusted, such
adjusted amount will become the “ Base Salary ”
for purposes of this Agreement.
(b) Short-Term Incentive
Compensation . Executive shall participate in the HRB
Management, Inc. short-term incentive program that is based on the
H&R Block Short-Term Incentive Plan (the “ Program
”) as applicable to executives of the Company for its current
fiscal year. Under the Program, Executive shall have an aggregate
annual target incentive award equal to fifty percent (50%) of his
Base Salary (“ Target Bonus ”), and an
opportunity to earn up to two times such Target Bonus, i.e., one
hundred percent (100%) of his Base Salary. The payment of the
actual award under the Program shall be based upon such performance
criteria which shall be determined by the Compensation Committee of
Block’s Board of Directors. Under the Program for the
Company’s current fiscal year only, Executive’s actual
incentive compensation shall be prorated based upon
Executive’s actual gross wages for the fiscal year, provided
that Executive must remain employed through April 30, 2006 to
receive any payments under the Program. Such incentive compensation
shall be paid to Executive following the completion of its current
fiscal year when the same is paid to other similarly situated
Company employees.
(c) Stock Options . As
authorized under the H&R Block 2003 Long-Term Executive
Compensation Plan, as amended (the “ 2003 Plan
”), subject to the terms of the related Option and Restricted
Stock Agreement (as such term is defined in the Stock Purchase
Agreement), Executive shall be granted on the Employment Date a
stock option under the 2003 Plan to purchase ten thousand (10,000)
shares of Block’s common stock at an option price per share
equal to the closing price of such shares 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 one-third (three thousand three hundred thirty-three (3,333)) of
the shares covered thereby on the first anniversary of the date of
grant, as to an additional one-third (three thousand three hundred
thirty-three (3,333)) of such shares on the second anniversary of
the date of grant, and as to the remaining one-third (three
thousand three hundred thirty-four (3,334)) of the shares on the
third 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.
In
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accordance with the terms of the Option and Restricted Stock
Agreement, any non-vested portion of stock options awarded pursuant
to this Section 1.03(c) shall vest upon a “ Change of
Control ,” as such term in defined in the Option and
Restricted Stock Agreement.
(d) Restricted Stock .
Subject to the terms of the related Option and Restricted Stock
Agreement (as such term is defined in the Stock Purchase
Agreement), Executive shall also be awarded promptly after the
Employment Date, one thousand two hundred (1,200) restricted shares
of Block’s common stock under the 2003 Plan. One-third of the
such restricted shares shall vest (i.e., the restrictions on such
shares shall terminate), respectively, on each of the first three
anniversaries following the Employment 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 Block’s shareholders. The terms of the restricted
stock grant reference herein will be more specifically set forth in
a separate agreement to be entered into between Block and
Executive.
1.04 Expenses .
(a) Travel Expenses .
For a period of ninety (90) days from and after the Employment
Date, the Company will promptly pay directly, or reimburse
Executive for all travel expenses incurred in traveling between San
Diego and Kansas City, including, but not limited to, lodging and
meal expenses, to the extent that such expenses are paid or
incurred by Executive and to the extent that such expenses are
reasonable and necessary to Executive’s conduct pursuant to
the terms hereof. After such ninety (90) day period, the
Company will promptly pay directly, or reimburse Executive for all
travel expenses incurred in traveling between San Diego and Kansas
City, including travel expenses, but excluding all lodging and
meal-related expenses, to the extent that such expenses are paid or
incurred by Executive and to the extent that such expenses are
reasonable and necessary to Executive’s conduct pursuant to
the terms hereof. In any event, the Company’s reimbursement
of Executive for any such expenses shall be in a manner consistent
with and subject to the terms of the Company’s related
policies in effect from time to time.
(b) Business Expenses .
Subject to the provisions of Section 1.04(a) above, the
Company will 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 the
Company’s policy in effect from time to time and to the
extent such expenses are reasonable and necessary to
Executive’s conduct pursuant to the terms hereof.
1.05 Fringe Benefits . During
the term of Executive’s employment hereunder, and subject to
the discretionary authority given to applicable benefit plan
administrators, the Company will make available to Executive such
insurance, sick leave, deferred compensation, short-term incentive
compensation, bonuses, stock options, retirement, vacation, and
other like benefits as are approved and provided from time to time
to the other similarly situated employees of the Company or the
other Block Entities.
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1.06 Termination of Employment
.
(a) Without Notice . The
Company may, at any time, in its sole discretion, terminate this
Agreement and the employment of Executive without notice in the
event of:
(i) Executive’s misconduct that
interferes with or prejudices the proper conduct of the business of
any Block Entity or which may reasonably result in harm to the
reputation of any Block Entity; or
(ii) Executive’s commission of
an act materially and demonstrably detrimental to the goodwill of
any Block Entity, which act constitutes gross negligence or willful
misconduct by Executive in the performance of Executive’s
duties hereunder; or
(iii) Executive’s commission 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 any Block Entity; or
(iv) Executive’s violation of
Article Two or Three of this Agreement; or
(v) Executive’s conviction of a
misdemeanor (involving an act of moral turpitude) or a felony;
or
(vi) Executive’s failure in
material respect to discharge Executive’s duties hereunder as
measured by the performance of matters within Executive’s
areas of responsibility against the plans and objectives prepared
by Executive and any Block Entity in the ordinary course; or
(vii) Executive’s unwillingness
to make all necessary travel to and from the Company’s
headquarters;
(viii) the results of any Background
Check (as such term is defined in the Stock Purchase Agreement (as
defined below)) are, in the reasonable opinion of Purchaser (as
such term is also defined in the Stock Purchase Agreement),
unsatisfactory; or
(ix) Executive’s suspension by
the Internal Revenue Service from participation in the Electronic
Filing Program; or
(x) The inability of Executive or any
Block Entity to participate, in whole or in part, in any activity
subject to governmental regulation as the result of any action or
inaction on the part of Executive, as described in
Section 1.02(b); or
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(xi) Executive’s death or total
and permanent disability. The term “ total and permanent
disability ” will have the meaning ascribed thereto under
any long-term disability plan maintained by any Block Entity for
employees of the Company.
(b) With Notice . Either
party may terminate this Agreement for any reason, or no reason, by
providing not less than forty-five (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 will terminate as of the close of business on
the forty- fifth (45 th ) day after
such notice is given or such later date as is specified in such
notice.
(c) Termination Due to a
Change of Control .
(i) If Executive terminates
Executive’s employment under this Agreement during the one
hundred eighty (180)-day period following the date of the
occurrence of a “ Change of Control ” (as
defined below) of Block then, upon any such termination of
Executive’s employment and conditioned on Executive’s
execution of an agreement under which Executive releases all known
and potential claims against each Block Entity, the Company will
provide Executive, at Executive’s election (the “
Change of Control Election ”), the same level of
severance compensation and benefits as would be provided under the
H&R Block Severance Plan (the “ Severance Plan
”) as the Severance Plan exists either (A) on the date
of this Agreement or (B) on Executive’s last day of
active employment by the Company pursuant to the terms hereof (the
“ Last Day of Employment ”), as if Executive had
incurred a “ Qualifying Termination ” (as such
term is defined in the Severance Plan). The Severance Plan as it
exists on the date of this Agreement is attached hereto as
Exhibit A . Executive must notify the Company in
writing within five (5) Business Days (as such term is defined in
the Stock Purchase Agreement, dated of even date herewith, among
H&R Block Digital Tax Solutions, LLC, Executive and the other
parties thereto (“ Stock Purchase Agreement ”))
after Executive’s Last Day of Employment of Executive’s
Change of Control Election. Severance compensation and benefits
provided under this Section will terminate immediately if Executive
violates Sections 3.02, 3.03, or 3.05 of this Agreement or
becomes reemployed by any Block Entity.
(ii) For the purpose of this
subsection, a “ Change of Control ” means:
(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 thirty-five percent (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 any Block Entity, or any
employee benefit plan (or related trust) of any Block Entity, or
any corporation with respect to which, following such
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acquisition,
more than fifty percent (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, 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 of Directors of Block (generally, the
“ Board ,” and 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) will
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-l 1 of Regulation 14A promulgated under the
Exchange Act); or
(C) the completion of a
reorganization, merger or consolidation approved by the
shareholders 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 fifty percent
(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, or a complete
liquidation or dissolution of Block, as approved by the
shareholders of Block, or the sale or other disposition of all or
substantially all of the assets of Block, as approved by the
shareholders of Block.
(d) Severance .
Executive will receive severance compensation and benefits as would
be provided under the Severance Plan, as the same may be amended
from time to time, if Executive incurs a “ Qualifying
Termination. ” as such term is defined in the Severance
Plan (and without regard to whether the termination is with or
without notice under this Agreement), and executes an agreement
under which Executive releases all known and potential claims
against any Block Entity. Such compensation and benefits will, at
Executive’s election (the “ Severance Election
”) be at the same level of severance compensation and
benefits as would be provided under the Severance Plan as such
plan
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exists
either (A) on the date of this Agreement, or
(B) Executive’s Last Day of Employment; provided
, however , (1) the “ Severance Period
” (as such term is defined in the Severance Plan) will be
12 months, notwithstanding any provision in the Severance Plan
to the contrary, and (2) Executive will be credited with not
less than 12 “ Years of Service ” (as such term
is defined in the Severance Plan) for the purpose of determining
severance compensation under Section 4(a) of the Severance Plan as
it exists on the date of this Agreement or the comparable section
of the Severance Plan as it exists on Executive’s Last Day of
Employment, notwithstanding any provision in the Severance Plan to
the contrary, and (3) all restrictions on any restricted
shares awarded to Executive that would have vested in accordance
with their terms by reason of lapse of time within eighteen
(18) months of Executive’s Last Day of Employment
(absent such termination of employment) shall terminate (and such
restricted shares shall be fully vested) and any restricted shares
that would not have vested in accordance with their terms by reason
of lapse of time within eighteen (18) months after
Executive’s Last Day of Employment shall be forfeited,
notwithstanding any provision of the related Option and Restricted
Stock (or similar) Agreement or Severance Agreement to the
contrary. Executive must notify the Company in writing within five
(5) Business Days after Executive’s Last Day of
Employment of Executive’s Severance Election. Severance
compensation and benefits provided under this Section will
terminate immediately if Executive violates Sections 3.02,
3.03, or 3.05 of this Agreement or becomes reemployed with by any
Block Entity.
(e) Further Obligations
. Upon termination of Executive’s employment under this
Agreement, no Block Entity will have any further obligations under
this Agreement and no further payments of Base Salary or other
compensation or benefits will be payable by any Block Entity to
Executive, except (i) as set forth in this Section,
(ii) as required by the express terms of any written benefit
plans or written arrangements maintained by any Block Entity and
applicable to Executive at the time of such termination of
Executive’s employment, or (iii) as may be required by
law. Any termination of this Agreement, however, will not be
effective as to Sections 3.02, 3.03 and 3.05, or any other
portions or provisions of this Agreement which, by their express
terms, require performance by either party following termination of
this Agreement.
ARTICLE TWO
CONFIDENTIALITY
2.01 Background and Relationship
of Parties . The parties hereto acknowledge (for all purposes,
including, without limitation, Articles Two and Three of this
Agreement) that the various Block Entities 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 the Company,
Executive will be expected to have access to all information of
value to the various Block Entities and that Executive’s
employment creates a relationship of confidence and trust between
Executive and the Block Entities with respect to any information
applicable to the businesses of the Block Entities. Executive will
possess or have unfettered access to
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information that has been created, developed, or acquired by the
Block Entities or otherwise become known to the Block Entities and
which has commercial value in the businesses in which the Block
Entities have been and will be engaged and has not been publicly
disclosed by the Block Entities. 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, software,
databases, know-how, marketing plans, 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 does 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.
2.02 Proprietary Information is
Property of Block .
(a) All Proprietary Information
is the sole property of Block (or the applicable Block Entity) and
its assigns, and Block (or the applicable Block Entity) is the sole
owner of all patents, copyrights, trademarks, names, and other
rights in connection therewith and without regard to whether Block
(or any applicable Block Entity) 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 during and after Executive’s
employment with the Company, 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 the Company or as may be
required by law or the order of any court or governmental
authority.
(b) In the event of any
termination of Executive’s employment hereunder, Executive
will promptly deliver to the Company all copies of all documents,
notes, drawings, programs, software, specifications, documentation,
data, Proprietary Information, and other materials and property of
any nature belonging to any Block Entity and obtained during the
course of Executive’s employment with the Company. In
addition, upon such termination, Executive will not remove from the
premises of the Company or any other Block Entity 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 THREE
NON-HIRING; NON-SOLICITATION; NO CONFLICTS;
NON-COMPETITION
3.01 General . The parties
hereto acknowledge that, during the course of Executive’s
employment by the Company, Executive will have access to
information valuable to the Company and the other Block Entities
concerning the employees of the Block Entities (collectively,
“ Block Employees ”) and, in addition to
Executive’s access to such information, Executive may, during
(and in the course of) Executive’s
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employment by the Company, develop relationships with such Block
Employees whereby information valuable to the various Block
Entities 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 to such Block Employees. Executive
agrees and understands that it is important to protect the Block
Entities and the Block Employees, and the various agents,
directors, clients and other representatives of the Block Entities
from the unauthorized use and appropriation of Block Employee
information, Proprietary Information, and trade secret business
information developed, held, or used by any Block Entity, and to
protect the Block Entities, the Block Employees and the agents,
directors, customers and other representatives of the Block
Entities, Executive agrees to the covenants described in this
Article Three.
3.02 Non-Hiring . During the
period of Executive’s employment hereunder, and for a period
of one (1) year after Executive’s Last Day of
Employment, Executive may not directly or indirectly recruit,
solicit, or hire any Block Employee or otherwise induce any such
Block Employee to leave the employment 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. The running of the one (1)- year period will be
suspended during any period of violation and/or any period of time
required to enforce this covenant by litigation or threat of
litigation.
3.03 Non-Solicitation . During
the period of Executive’s employment hereunder and during the
time Executive is receiving payments hereunder, and for two
(2) years after the later of Executive’s Last Day of
Employment or cessation of such payments, Executive may not
directly or indirectly solicit or enter into any arrangement with
any person or entity which is, at the time of the solicitation, a
significant customer of any Block Entity for the purpose of
engaging in any business transaction of the nature performed by
such Block Entity, or contemplated to be performed by such Block
Entity, for such customer, provided that this Section 3.03
will only apply to customers for whom Executive personally provided
services while employed by the Company or customers about whom or
which Executive acquired material information while employed by the
Company. The running of the two (2)-year period will be suspended
during any period of violation and/or any period of time required
to enforce this covenant by litigation or threat of
litigation.
3.04 No Conflicts . Executive
represents in good faith that, to the best of Executive’s
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 to any Block Entity, nor will Executive use in the
performance of employment responsibilities at the Company 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
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Executive may have to former employers and Executive will fulfill
all such obligations during Executive’s employment with the
Company.
3.05 Non-Competition . During
the period of Executive’s employment hereunder and during the
time Executive is receiving payments hereunder, and for two
(2) years after the later of Executive’s Last Day of
Employment or cessation of such payments, Executive may not engage
in, or own or control any interest in (except as a passive investor
in less than one percent (1%) of the outstanding securities of
publicly held companies), or act as an officer, director or
employee of, or consultant, advisor or lender to, any firm,
corporation, partnership, limited liability company, institution,
business, government agency, or entity that engages in any line of
business that is competitive with any Line of Business of Block (as
defined below). “ Line of Business of Block ”
means any line of business (including lines of business under
evaluation or development) of the Company, as well as any one or
more lines of business (including, without limitation, lines of
business under evaluation or development) of any Block Entity with
which Executive was involved during the two (2)-year period
preceding Executive’s Last Day of Employment, provided that,
“Line of Business of Block” will, in all events,
include, but not be limited to, the business conducted by Taxnet
Inc. on and before the date hereof, and the business, and any
related products and services, related to the preparation of tax
returns, whether on-line, electronically or professionally
assisted, including, without limitation, through the use or sale of
software, and provided further that if Executive’s employment
was, as of the Last Day of Employment or during the two (2)-year
period immediately prior to the Last Day of Employment, with the
Company or any successor entity thereto, “Line of Business of
Block” means any line of business (including lines of
business under evaluation or development) of any Block Entity.
Notwithstanding the foregoing, for purposes hereof, “ Line
of Business of Block ” shall not include the Equipment
Leasing Ac
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