FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
(NAFI/XXX XXXXXX)
This First Amendment to Employment Agreement (the "Amendment") is
entered into as of the 16th day of December, 1997, by and between National Auto
Finance Company, Inc. (the "Company") and Xxx Xxxxxx ("Xxxxxx").
RECITALS
A. National Auto Finance Company L.P., a Delaware limited partnership
(the "Partnership") and Xxxxxx entered into that certain Employment Agreement
dated September 16, 1995 (the "Original Agreement"). Each capitalized term which
is used but not defined in this Agreement shall have the meaning set forth in
the Original Agreement.
B. The Partnership was dissolved as a limited partnership and all of
the liabilities of the Partnership (including any liabilities under the Original
Agreement) were transferred to, and assumed by, the Company.
C. The Company and Xxxxxx desire to amend certain terms of the Original
Agreement as set forth hereinbelow.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Company. The Company acknowledges that the Company has assumed
all of the obligations and liabilities of the Partnership under the Original
Agreement. All references in the Original Agreement to "National Auto Finance
Corporation," the "Partnership", the "Limited Partnership", the "General
Partner," "National Auto Finance Company L.P." or "NAFCO" shall hereinafter
constitute references to "the Company" for all purposes.
2. Term. The Term of the Original Agreement as set forth in Section 1
of the Original Agreement is hereby extended to expire on DECEMBER 31, 1999,
unless soon terminated as provided in Section 10 of the Original Agreement or in
Section 6 of this Amendment.
3. Base Salary. The base salary amount (i.e. $180,000) set forth in
Section 4(a)(4) of the Original Agreement is hereby deleted in its entirety and
the following is hereby substituted in lieu thereof and, in addition, a new
Section 4(a)(5) is hereby added to such Section as follows:
(4) $200,000 from January 1, 1998 through December 31, 1998;
(5) $240,000 from January 1, 1999 to December 31, 1999.
The other provisions of Section 4(a) shall not be modified by this Amendment.
4. Incentive Bonus. Section 4(b) of the Original Agreement is hereby
amended by providing for an incentive bonus for Xxxxxx for calendar year 1999 as
follows:
a. Section 4(b)(A) is hereby amended by adding the phrase "$20,000,000
FOR 1999" after the phrase "$15,000,000 for 1998" and by adding the phrase
"$146,250 FOR 1999" after the phrase "$117,000 for 1998".
b. Section 4(b)(B) is hereby amended by adding "1999 - $146,250"
beneath the following numbers "1998-$117,000".
c. Section 4(b) is hereby amended by adding "1999" after "1998" in the
third sentence of such Section and in the last sentence of such Section.
5. Bonuses.
a. Upon the execution and delivery of this Amendment, the Company shall
pay to Xxxxxx a one-time special signing bonus of $25,000.
b. In addition to the bonus amount payable to Xxxxxx as set forth in
the Original Agreement for calendar year 1997 (and the signing bonus set forth
above), Xxxxxx will receive an additional $30,000 for his 1997 bonus, which
amount shall be paid by the Company to Xxxxxx at the same time as the 1997 bonus
is paid to Xxxxxx.
6. Special Termination Right of Xxxxxx.
a. In addition to the termination rights set forth in the Original
Agreement, in the event that the Company retains one or more new chief executive
officer(s) during the Term (other than Xxxxxx or Xxxx X. Xxxxxxx), then, Xxxxxx
shall have the right to terminate the Term of the Original Agreement (as amended
hereby) which termination shall be effective 120 days after written termination
notice has been received by the Company from Xxxxxx.
b. Following the expiration of such 120-day period (i.e. on the
effective date of such termination), Xxxxxx shall be entitled to receive all
accrued and unpaid (as of the date of such termination) Base Salary, Benefits,
and Other Compensation, and all Base Salary, Benefits and Other Compensation
shall then cease after the effective date of such termination, except as set
forth in Section 9(b) of the Original Agreement in the event that the Company
exercises its rights under such Section, as amended hereby.
c. Following such termination by Xxxxxx, the Company shall have the
right to exercise the Company's rights which are set forth in Section 9(b) of
the Original Agreement; provided however (notwithstanding the requirement to
give 120-days notice to Xxxxxx as set forth in the Agreement) the Company must
exercise such option to extend the "covenant not to compete" as contemplated by
Section 9(b) of the Original Agreement by giving to Xxxxxx written notice on or
before 60 days prior to the effective date of such termination by Xxxxxx under
this Section 6.
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7. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall constitute
one instrument, but in making proof hereof it shall only be necessary to produce
one such counterpart.
8. Modification. This Agreement may only be modified by a written
instrument or instruments executed by the party against which enforcement of the
modification is asserted. Any alleged modification which is not so documented
shall not be effective as to any party.
9. Governing Law. The terms and provisions of this Agreement shall be
governed by the laws of the State of Florida (without regard to the conflict of
laws rules of such State) and to applicable federal law.
10. Entire Agreement. The Original Agreement, as modified by this
Amendment, constitutes the entire understanding and agreement between the
parties hereto with respect to the transactions referenced herein and supersedes
all prior written or oral understandings and agreements between the parties
hereto with respect thereto. Each party hereto hereby acknowledges that, except
as incorporated in writing in the Original Agreement or this Amendment, there
are not, and were not, and no persons are or were authorized by such party to
make, any representations, understandings, stipulations, agreements or promises,
oral or written, with respect to the transaction which is the subject of this
Agreement.
IN WITNESS WHEREOF, each party set forth below has executed this
Amendment as of the date first above written.
NATIONAL AUTO FINANCE COMPANY, INC.
By:
Xxxx X. Xxxxxxx, CEO
XXX XXXXXX
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