EXHIBIT 10.26
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AGREEMENT, dated and effective
as of November 7, 2005, is made and entered into by and
between AmeriCredit Corp., a Texas corporation, having an office at
801 Cherry Street, Suite 3900, Fort Worth, Texas 76102 (hereinafter
referred to as “Employer”), each subsidiary corporation
of Employer whether executing this Agreement or not (each, a
“Subsidiary”), and Steven P. Bowman (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.
WHEREAS, Employer and Employee are
parties to an Employment Agreement dated as of September 30,
1996 (the “Existing Employment Agreement”).
WHEREAS, the parties hereto desire
to amend and restate the Existing Employment Agreement in the
manner, and on the terms and conditions herein provided.
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 an executive capacity upon the
terms and conditions set forth herein. Employer agrees to employ
Employee and Employee agrees to accept employment by Employer and
to serve Employer in an executive capacity upon the terms and
conditions set forth herein. The duties and responsibilities of
Employee shall include those described for the particular position
held by Employee while employed hereunder in the By-laws of
Employer or Subsidiary or other documents of Employer or
Subsidiary. The 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
committee thereof, from time to time in its sole discretion. While
employed hereunder, the initial position that Employee shall hold
shall be Executive Vice President, Chief Credit and Risk Officer
(until such time as such position may be changed as
aforesaid).
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
$350,000 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 is in
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.
- 2 -
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
June 30, 2008.
5.2. The term of this Agreement
shall automatically be extended for additional one-year periods
commencing on July 1, 2006 and on July 1 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 July 1 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
- 3 -
(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 Disability, accident, sickness or otherwise so as
to render Employee mentally or physically incapable of performing
the services required under Section 1 for a period of one
hundred eighty (180) consecutive business 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) days’ prior to the
termination date. Employee agrees, after written notice by the
Board of Directors of Employer or Subsidiary or a duly authorized
committee 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 or a duly authorized
committee or any officer of Employer or
