EXHIBIT 10.28
EMPLOYMENT
AGREEMENT
THIS AGREEMENT, dated and effective
as of May 9, 2003, is made and entered into by and between
AmeriCredit Financial Services, Inc., a Delaware corporation
(“Employer”), AmeriCredit Corp., a Texas corporation,
and Brian Mock (hereinafter referred to as
“Employee”).
WHEREAS, Employer desires to induce
Employee to continue as an employee of Employer to provide the
necessary leadership and management skills that are important to
the success of Employer. Employer believes that retaining the
Employee’s services as an employee of Employer and the
benefits of his business experience are of material importance to
Employer.
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 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 in the following capacity, upon the terms and
conditions set forth herein:
Executive Vice President, Consumer
Services
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
AmeriCredit Corp., any duly authorized committees thereof or an
authorized officer of Employer or AmeriCredit Corp. 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 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 AmeriCredit Corp., any duly authorized committees
thereof or any authorized officers of Employer or AmeriCredit Corp.
and shall use his best efforts to promote the interests of Employer
and AmeriCredit Corp. 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
AmeriCredit Corp. 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 AmeriCredit
Corp., any duly authorized committees thereof or any duly
authorized officer of Employer or AmeriCredit Corp..
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 AmeriCredit Corp. 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 AmeriCredit Corp., any duly authorized committees
thereof or any authorized officer of Employer or AmeriCredit Corp.
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 AmeriCredit Corp.,
(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 AmeriCredit Corp.
2. Compensation and Benefits:
2.1. As compensation for services to
Employer and AmeriCredit Corp., 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 $260,000 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 (specifically including the Employee Stock Purchase Plan
and the 401k Plan) 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
AmeriCredit Corp., to keep available to Employer and AmeriCredit
Corp. the services of present employees and to preserve the
business relations of Employer and AmeriCredit Corp. 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 AmeriCredit Corp. So long as
Employee is employed by Employer, 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 AmeriCredit Corp., Employee
agrees, both during the term of this Agreement and thereafter, to
protect, preserve the confidentiality of and safeguard the Trade
Secrets (as defined below) of Employer and AmeriCredit Corp. and,
except as may be expressly required by Employer, Employee shall
not, either during his employment or thereafter, directly or
indirectly, use for his own benefit or for the benefit of another,
or disclose to another, any of such Trade Secrets. As used herein,
the term “Trade Secrets” shall mean data, information,
discoveries, techniques and information that (i) has been
developed by Employer and/or AmeriCredit Corp. and are confidential
and proprietary to Employer and/or AmeriCredit Corp., and
(ii) has not been publicly disclosed or disseminated by
Employer or AmeriCredit Corp., including, but not limited to, any
technical and scientific information, any information relating to
software architecture, design or code, any research and development
information, any plans or projections, any customer lists, supplier
lists, customer data analyses, accounting and financial
information, cost/pricing information, formulae or information
pertaining to scorecard development or analyses.
4.2. Upon termination of his
employment with Employer, or at any other time upon request,
Employee shall immediately deliver to Employer all documents
embodying any Trade Secrets, as defined above.
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5. Initial Term; Extensions of the Term
:
5.1. The initial 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 hereof and on each anniversary
thereafter, unless either Employee or Employer gives written notice
to the other on or before any December 31 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 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
AmeriCredit Corp. 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 AmeriCredit Corp.’s funds,
or any other act of dishonesty injurious to Employer or AmeriCredit
Corp. 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
(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 requ
