Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 27th
day of September, 2005, by and between HRB Management, Inc., a Missouri
Corporation (the "Company"), and Jeff Nachbor ("Executive").
ARTICLE ONE
EMPLOYMENT
1.01 - Agreement as to Employment. Effective ______________ (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, subject to the terms 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 - Corporate Controller, subject to the authority and direction of the
Board of Directors of the Company and the Chief Financial Officer - Executive
Vice President of H&R Block, Inc. a Missouri Corporation. Subject to the
foregoing, Executive will have such authority and responsibility and duties as
stated in the job description for the position of Senior Vice President -
Corporate Controller, which has been provided to Executive on or before the
Employment Date. The Company reserves the right to modify, delete, add, or
otherwise change Executive's job responsibilities and job description, in its
sole discretion, at any time. Executive will perform such other duties, which
may be beyond the scope of the job description, as are assigned to Executive
from time to time.
(b) So long as Executive is employed under this Agreement, 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. 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 acknowledges having read and understood.
Executive will comply fully with all policies of the Company as are from time to
time in effect and applicable to Executive's position. Executive understands
that the business of H&R Block, Inc. ("Block"), the Company, and/or any other
direct or indirect subsidiary of Block (each such other subsidiary an
"Affiliate") may be subject to governmental regulation, some of which may
require Executive to submit to background investigation as a condition of Block,
the Company, and/or Affiliates' participation in certain
1
activities subject to such regulation. If Executive, Block, the Company, or
Affiliates 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) Hiring Bonus. The Company shall pay to Executive a $40,000 bonus
(less applicable taxes) to be paid on the first regular pay date following 30
days of employment and upon receipt of an executed Hiring Bonus Acknowledgement,
Repayment Agreement (attached hereto as Exhibit A).
(b) Base Salary. The Company will pay to Executive a gross salary at
an annual rate of $275,000 ("Base Salary"), payable semimonthly or at any other
pay periods as the Company may use for its other executive-level employees. The
Base Salary will be reviewed for adjustment from time to time during the term of
Executive's employment hereunder and, if adjusted, such adjusted amount will
become the "Base Salary" for purposes of this Agreement.
(c) Short-Term Incentive Compensation. Executive shall participate in
the H&R Block 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 fiscal year 2006. Under such Program, Executive shall have an
aggregate target incentive award equal to $110,000 (40% of base salary), and an
opportunity to earn 0% to 200% of such target bonus. The payment of the actual
award under such Program shall be based upon such performance criteria which
shall be determined by the Compensation Committee of Block. Under such Program
for fiscal year 2006 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 fiscal year 2006 when the same is paid to
other senior executives of the Company.
(d) Stock Options. As authorized under the H&R Block 2003 Long-Term
Executive Compensation Plan, as amended (the "2003 Plan"), on the Employment
Date, Executive shall receive a stock option award under the 2003 Plan to
purchase shares of Block's common stock with a total value of approximately
$100,000. The number of shares of Block's common stock and the option price per
share shall be determined by the stock's closing price on the New York Stock
Exchange on the Employment Date. Such option shall expire on the tenth
anniversary of the Employment Date (date of grant); to vest and become
exercisable as to one-third of the shares covered thereby on the first
anniversary of the date of grant, as to an additional one-third of such shares
on the second anniversary of the date of grant, and as to the remaining
one-third 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. Any non-vested portion of stock
2
options awarded pursuant to this Section 1.03(d) shall vest upon a "Change of
Control" (as such term is defined in the Stock Option Agreement) pursuant to the
terms of the Stock Option Agreement.
(e) Restricted Stock. Executive shall be awarded on the Employment
Date, a long-term incentive award with a total value of approximately $100,000
in Restricted Shares of Block's common stock under the 2003 Plan. The number of
shares of Block's common stock and the value of each such restricted share shall
be determined by the stock's closing price on the New York Stock Exchange on the
Employment Date. One-third of the shares shall vest (i.e., the restrictions on
such shares shall terminate), respectively, on each of the first three
anniversaries following such employment commencement date (in increments of 1/3
of the total shares awarded rounded to the nearest whole share). 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 shareholders of Block.
1.04 - Relocation Benefits.
(a) The Company will reimburse Executive for reasonable packing,
shipping, transportation costs and other expenses incurred by Executive in
relocating Executive, Executive's family and personal property to the Greater
Kansas City Area, in accordance with the H&R Block Executive Relocation Program.
(b) To the extent that Executive incurs taxable income related to any
relocation benefits paid pursuant to this Agreement, the Company will pay to
Executive such additional amount as is necessary to "gross up" such benefits and
cover the anticipated income tax liability resulting from such taxable income.
1.05 - Business Expenses. 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 the conduct by Executive of the Company's business.
1.06 - Fringe Benefits. During the term of Executive's employment
hereunder, and subject to the discretionary authority given to the applicable
benefit plan administrators, the Company will make available to Executive such
insurance, sick leave, deferred compensation, short-term incentive compensation,
bonuses, stock options, restricted stock, retirement, vacation, and other like
benefits as are approved and provided from time to time to the other
executive-level employees of the Company or Affiliates, including but not
limited to, entitling the Executive to participate in the H&R Block Deferred
Compensation Plan and the H&R Block Executive Survivor Plan (the "ESP"),
according to the provisions of such plans. In connection with the Executive's
participation in the ESP, Executive shall be eligible to participate in the ESP
on the earliest date
3
following the Employment Date on which the insurance carrier under the ESP
approves Executive's coverage under the ESP and completes such administrative
procedures as are necessary to enroll Executive in the ESP.
1.07 - 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 Block, the Company or any Affiliate or
which may reasonably result in harm to the reputation of Block, the Company
and/or any Affiliate; or
(ii) Executive's commission of an act materially and demonstrably
detrimental to the goodwill of Block or any subsidiary of Block, which act
constitutes gross negligence or willful misconduct by Executive in the
performance of Executive's material duties to Block or such subsidiary; 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 Block or any subsidiary of Block;
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 to discharge Executive's duties; or
(vii) Executive's suspension by the Internal Revenue Service from
participation in the Electronic Filing Program; or
(viii) The inability of Executive, Block, the Company, and/or an
Affiliate 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
(ix) 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 the Company or
Block for executives of the Company.
(b) With Notice. Either party may terminate this Agreement for any
reason, or no reason, by providing not less than 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
4
will terminate as of the close of business on the 45th day after such notice is
deemed to have been 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 180-day period following the date of the occurrence of
a "Change of Control" of Block then, upon any such termination of
Executive's employment and conditioned on Executive's execution of an
agreement with the Company under which Executive releases all known and
potential claims against Block, the Company, and Affiliates, the Company
will provide Executive with Executive's election (the "Change of Control
Election") of 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 or any
Affiliate (the "Last Day of Employment"), as if Executive had incurred a
"Qualifying Termination" (as such term is defined in the Severance Plan);
provided, however, (1) Executive will be credited with no 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)(i) 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 (2) all restrictions on any nonvested Restricted Shares
awarded to Executive pursuant to Section 1.03(e) of this Agreement shall
terminate (and such Restricted Shares shall be fully vested),
notwithstanding any provision in the Severance Plan to the contrary. The
Severance Plan as it exists on the date of this Agreement is attached
hereto as Exhibit B. Executive must notify the Company in writing within 5
business days after Executive's Last Day of Employment of Executive's
Change of Control Election. Severance compensation and benefits provided
under this Section 1.07(c) will terminate immediately if Executive violates
Sections 3.02, 3.03, or 3.05 of this Agreement or becomes reemployed with
the Company or an Affiliate.
(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 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 Block or any of its subsidiaries, or any employee
benefit plan (or related trust) of Block or its subsidiaries, or any
corporation with respect to which, following such acquisition, more
than 50% of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially
5
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 (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-11 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 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 with the Company under which Executive releases all known and
potential claims against Block, the Company, and Affiliates. Such compensation
and benefits will be Executive's election (the "Severance Election") of the same
level of severance compensation and benefits as would be provided under the
Severance Plan as such plan 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 6 months,
notwithstanding any provision in the Severance Plan to the contrary, and (2)
Executive will be credited with not less than 6 "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
6
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 18
months after the effective date of the termination 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 18 months after the effective
date of termination of employment shall be forfeited, notwithstanding any
provision of the Severance Agreement to the contrary. The Severance Plan as it
exists on the date of this Agreement is attached hereto as Exhibit B. Executive
must notify the Company in writing within 5 business days after Executive's Last
Day of Employment of Executive's Severance Election. Severance compensation and
benefits provided under this Section 1.07(d) will terminate immediately if
Executive violates Sections 3.02, 3.03, or 3.05 of this Agreement or becomes
reemployed with the Company or an Affiliate.
(e) Further Obligations. Upon termination of Executive's employment
under this Agreement, neither the Company, Block, nor any Affiliate will have
any further obligations under this Agreement and no further payments of Base
Salary or other compensation or benefits will be payable by the Company, Block,
or any Affiliate to Executive, except (i) as set forth in this Section 1.07,
(ii) as required by the express terms of any written benefit plans or written
arrangements maintained by the Company or Block 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 Block and its subsidiaries 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 Company and Block and that Executive's employment
creates a relationship of confidence and trust between Executive and Block with
respect to any information applicable to the businesses of Block and its
subsidiaries. Executive will possess or have unfettered access to information
that has been created, developed, or acquired by Block and its subsidiaries or
otherwise become known to Block and its subsidiaries and which has commercial
value in the businesses in which Block and its subsidiaries have been and will
be engaged and has not been publicly disclosed by Block. All information
described above is hereinafter called "Proprietary Information." By way of
illustration, but not limitation, Proprietary Information includes trade
7
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 subsidiary of Block) and its assigns, and Block (or the applicable
subsidiary of Block) is the sole owner of all patents, copyrights, trademarks,
names, and other rights in connection therewith and without regard to whether
Block (or any subsidiary of Block) 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 or any Affiliate, 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 Block or any subsidiary of Block 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 Block or any subsidiary of Block
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.
8
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 Block concerning the employees of Block
and its subsidiaries ("Block Employees") and, in addition to Executive's access
to such information, Executive may, during (and in the course of) Executive's
employment by the Company, develop relationships with such Block Employees
whereby information valuable to Block and its subsidiaries 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 by Block to such Block Employees.
Executive agrees and understands that it is important to protect Block, the
Company, Affiliates and their employees, agents, directors, and clients from the
unauthorized use and appropriation of Block Employee information, Proprietary
Information, and trade secret business information developed, held, or used by
Block, the Company, or Affiliates, and to protect Block, the Company, and
Affiliates and their employees, agents, directors, and customers Executive
agrees to the covenants described in this Article III.
3.02 - Non-Hiring. During the period of Executive's employment
hereunder, and for a period of 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 of
Block (or the applicable employer-subsidiary of Block) 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
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
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 or vendor of the Company or an Affiliate
for the purpose of engaging in any business transaction of the nature performed
by the Company or such Affiliate, or contemplated to be performed by the Company
or such Affiliate, for such customer or vendor, provided that this Section 3.03
will only apply to customers or vendors for whom Executive personally provided
services while employed by the Company or an Affiliate or customers or vendors
about whom or which Executive acquired material information while employed by
the Company or an Affiliate. The running of the 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
9
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 the Company or Block 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 Executive may
have to former employers and Executive will fulfill all such obligations during
Executive's employment with the Company.
3.05 - Non-Competition.
(a) During the period of Executive's employment hereunder and during
the time Executive is receiving payments hereunder, and for 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 of the outstanding securities of
publicly held companies), or act as an officer, director or employee of, or
consultant, advisor or lender to, (i) any firm, corporation, partnership,
limited liability company, institution, business, government agency, or entity
that at the time of the initiation of such engagement, ownership, control, or
action by Executive, engages in, or has developed a plan to engage in a business
whose core strategy is to integrate the provision of tax and/or accounting
products or services with the provision of investment products or services to
its clients, or (ii) any subsidiary, division or segment of a firm, corporation,
partnership, limited liability company, institution, business, government
agency, or entity that at the time of the initiation of such engagement,
ownership, control, or action by Executive, engages in any line of business that
is competitive with any Line of Business of Block (as defined below), provided
that this Section 3.05 will not apply to Executive if Executive's primary place
of employment by the Company or an Affiliate as of the Last Day of Employment is
in either the State of California or the State of North Dakota. "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 lines of business under evaluation or development) of any
Affiliate by which Executive was employed during the two-year period preceding
the Last Day of Employment, provided that, "Line of Business of Block" will in
all events include, but not be limited to, the income tax return preparation
business, and provided further that if Executive's employment was, as of the
Last Day of Employment or during the 2-year period immediately prior to the Last
Day of Employment, with HRB Management, Inc. or any successor entity thereto,
"Line of Business of Block" means any line of business (including lines of
business under evaluation or development) of Block and all of its subsidiaries.
The running of the 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.
(b) If this Agreement is assigned by the Company to an Affiliate at
any time in accordance with Section 4.04, then, during the two (2) years after
the later of Executive's Last
10
Day of Employment or the cessation of Executive's receipt of any payments
pursuant to this Agreement, Executive shall not engage in any conduct proscribed
in subsection 3.05(a) of this Agreement. The running of the 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.
(c) No provision in this Section 3.05 shall apply to Executive if
Executive's primary place of employment by the Company or an Affiliate as of the
Last Day of Employment is in either the State of California or the State of
North Dakota.
3.06 - Reasonableness of Restrictions. Executive and the Company
acknowledge that the restrictions contained in this Agreement are reasonable,
but should any provisions of any Article of this Agreement be determined to be
invalid, illegal, or otherwise unenforceable or unreasonable in scope by any
court of competent jurisdiction, the validity, legality, and enforceability of
the other provisions of this Agreement will not be affected thereby and the
provision found invalid, illegal, or otherwise unenforceable or unreasonable
will be considered by the Company and Executive to be amended as to scope of
protection, time, or geographic area (or any one of them, as the case may be) in
whatever manner is considered reasonable by that court and, as so amended, will
be enforced.
ARTICLE FOUR
MISCELLANEOUS
4.01 - Third-Party Beneficiary. The parties hereto agree that Block is
a third-party beneficiary as to the obligations imposed upon Executive under
this Agreement and as to the rights and privileges to which the Company is
entitled pursuant to this Agreement, and that Block is entitled to all of the
rights and privileges associated with such third-party-beneficiary status.
4.02 - Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the Company and Executive concerning the
subject matter hereof. No modification, amendment, termination, or waiver of
this Agreement will be binding unless in writing and signed by Executive and a
duly authorized officer of the Company. Failure of the Company, Block, or
Executive to insist upon strict compliance with any of the terms, covenants, or
conditions hereof will not be deemed a waiver of such terms, covenants, and
conditions.
4.03 - Specific Performance by Executive. The parties hereto
acknowledge that money damages alone will not adequately compensate the Company
or Block or Executive for breach of any of the covenants and agreements herein
and, therefore, in the event of the breach or threatened breach of any such
covenant or agreement by either party, in addition to all other remedies
available at law, in equity or otherwise, a wronged party will be entitled to
injunctive relief compelling specific performance of (or other compliance with)
the terms hereof.
11
4.04 - Successors and Assigns. This Agreement is binding upon
Executive and the heirs, executors, assigns and administrators of Executive or
Executive's estate and property and will inure to the benefit of the Company,
Block and their successors and assigns. Executive may not assign or transfer to
others the obligation to perform Executive's duties hereunder. The Company may
assign this Agreement to an Affiliate with the consent of Executive, in which
case, after such assignment, the "Company" means the Affiliate to which this
Agreement has been assigned.
4.05 - Withholding Taxes. From any payments due hereunder to Executive
from the Company, there will be withheld amounts reasonably believed by the
Company to be sufficient to satisfy liabilities for federal, state, and local
taxes and other charges and customary withholdings. Executive remains primarily
liable to such authorities for such taxes and charges to the extent not actually
paid by the Company. This Section 4.05 does not affect the Company's obligation
to "gross up" any relocation benefits paid to Executive pursuant to Subsection
1.04(b).
4.06 - Indemnification. To the fullest extent permitted by law and
Block's Bylaws, the Company hereby indemnifies during and after the period of
Executive's employment hereunder Executive from and against all loss, costs,
damages, and expenses including, without limitation, legal expenses of counsel
selected by the Company to represent the interests of Executive (which expenses
the Company will, to the extent so permitted, advance to executive as the same
are incurred) arising out of or in connection with the fact that Executive is or
was a director, officer, employee, or agent of the Company or Block or serving
in such capacity for another corporation at the request of the Company or Block.
Notwithstanding the foregoing, the indemnification provided in this Section 4.06
will not apply to any loss, costs, damages, and expenses arising out of or
relating in any way to any employment of Executive by any former employer or the
termination of any such employment.
4.07 - Right to Offset. To the extent not prohibited by applicable law
and in addition to any other remedy, the Company has the right but not the
obligation to offset any amount that Executive owes the Company under this
Agreement against any amounts due Executive by Block, the Company, or
Affiliates.
4.08 - Waiver of Jury Trial. Both parties to this Agreement, and
Block, as a third-party beneficiary pursuant to Section 4.01 of this Agreement,
waive any and all right to any trial by jury in any action or proceeding
directly or indirectly related to this Agreement and Executive's employment
hereunder.
4.09 - Notices. All notices required or desired to be given hereunder
must be in writing and will be deemed served and delivered if delivered in
person or mailed, postage prepaid to Executive at:
_________________________________; and to the Company at: 4400 Main Street,
Kansas City, Missouri 64111, Attn: President, with a copy to H&R Block, Inc.,
4400 Main Street, Kansas City, Missouri 64111, Attn: Corporate Secretary; or to
such other address and/or person designated by either party in writing to the
other party. Any notice given by mail will be deemed given as of the date it is
so mailed and postmarked or received by a nationally recognized
12
overnight courier for delivery.
4.10 - Counterparts. This Agreement may be signed in counterparts and
delivered by facsimile transmission confirmed promptly thereafter by actual
delivery of executed counterparts.
Executed as a sealed instrument under, and to be governed by, construed and
enforced in accordance with, the laws of the State of Missouri.
EXECUTIVE:
Dated: September 27, 2005 /s/ Jeff Nachbor
----------------------------------------
JEFF NACHBOR
Accepted and Agreed:
HRB Management, Inc.
a Missouri Corporation
By: /s/ Mark A. Ernst
---------------------------------
Mark A. Ernst,
President and Chief Executive
Officer
Dated: September 27, 2005
13
INSERT
HIRING BONUS ACKNOWLEDGEMENT, REPAYMENT AGREEMENT
EXHIBIT A
H&R BLOCK SEVERANCE PLAN
EXHIBIT B
A-1