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Exhibit 10.3
[NAC LETTERHEAD]
April 25, 2001
Xx. Xxxxxxx X. Xxxxxx
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxx 00000
RE: SEPARATION FROM NAC
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Dear Xx. Xxxxxx:
This letter confirms our agreement with respect to your separation from
National Auto Credit, Inc. and its subsidiaries and affiliates (collectively,
except where the context requires otherwise, "NAC" or the "Company") and the
terms and conditions thereof.
1. At the close of business on the "Separation Date" (as defined below), you
will have no further job responsibilities with the Company. The Separation
Date shall be your last day of employment (i.e., the last day on which you
are expected to report to work and carry out assigned tasks). Effective at
the close of business on the Separation Date, you resign as an employee,
officer and director of NAC and each of NAC's subsidiaries and affiliates.
You agree that NAC has no obligation, contractual or otherwise, to rehire,
reemploy or recall you in the future.
2. The Separation Date shall be the earlier of (A) June 30, 2001 or (B) the
date specified by you on fourteen (14) days' prior written notice, which
date shall not be earlier than May 2, 2001. The parties, by mutual
agreement, may extend the Separation Date beyond June 30, 2001, in which
event the term "Separation Date" shall mean the date agreed as the end of
such extension period.
3. You acknowledge that this Agreement shall supersede any and all contracts
of employment or other agreements or arrangements with respect to
employment you have or had with the Company, and such other contracts,
agreements and arrangements shall hereafter be of no further force or
effect.
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4. A. Through and including the Separation Date, you shall continue
to receive not less than your regular salary at the rate now in effect
(i.e., $200,000 per annum), subject to normal payroll deductions (your "Net
Salary"), along with all benefits to which you are currently entitled and
your business expense reimbursement in accordance with the Company's
current policies.
B. In consideration for your performance of the covenants set
forth in this Agreement, your execution of the general release (in the form
annexed hereto as EXHIBIT A, the "Original Release") and your execution on
the Separation Date of an additional general release (also in the form
annexed hereto as EXHIBIT A, except dated the Separation Date), which
additional general release, when effective, shall supplement but not
supersede the Original Release (the "Bringdown Release"; as used herein,
the term "General Release" shall mean the Original Release until the
Bringdown Release has become effective and thereafter shall mean both the
Original Release and the Bringdown Release), you shall be entitled to the
following:
(i) Continuation of the payment of your Net Salary for six (6)
months following the Separation Date (the "Payment Period"),
such amounts to be paid on such dates as salary payments
would otherwise have been made if your employment with the
Company had not terminated.
(ii) The Chief Executive Officer of NAC has determined that NAC
has substantially succeeded in winding up its operations in
the Cleveland, Ohio area on or before March 1, 2001 and,
therefore, you have earned a cash bonus, payable 5 business
days from the date hereof, in the amount of $50,000, less
any applicable withholding.
(iii) You shall have the option to purchase the 1999 Audi A6
automobile you currently have access to as part of your
employment with the Company for $500.00; provided that you
furnish written notice to the Company of your exercise of
such option on or before the Separation Date and make
payment for such automobile within fifteen (15) days
thereafter.
(iv) The Company agrees that you shall continue to be entitled to
the same indemnification to which you were entitled in your
role as an employee, officer and/or director of the Company,
to the extent permitted by Delaware law, the Company's
Certificate of Incorporation and the Company's By-laws and
shall include coverage pursuant to NAC's then-current
directors and officers insurance policy (if any).
C. The Company shall continue your enrollment in the following
insurance plans (to the extent you are covered thereby on the Separation
Date) through the end of the Payment Period, provided that such plans
permit continued enrollment: Dental; Medical; Vision Care; Life, Accidental
Death and Dismemberment; Supplemental Life Insurance for Officers;
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Long-term Disability; and Short-term Disability. If any plan does not
permit continued enrollment, then, to the extent permitted by COBRA, you
shall elect to continue your coverage for such plan(s) and the Company
shall reimburse you for your out-of-pocket costs in connection with such
continued coverage through the end of the Payment Period. You shall also be
entitled to continue your participation in the Company's 401(k) Savings
Plan through the end of the Payment Period, although the obligation of the
Company to make contributions thereto on your behalf shall cease on the
Separation Date. The Company will take steps to cause the employee to be
fully vested in the Company's 401(k) Savings Plan as of the Separation
Date; provided, however, that the 401(k) plan permits such vesting and
provided, further, that neither the taking of such steps nor such vesting
would require any out-of-pocket costs to be borne by the Company. All other
programs and benefit coverages available to you as an employee or officer
of NAC shall cease in accordance with the terms of the program or benefit
coverage as of the Separation Date; provided, however, that nothing herein
or in the General Release shall limit or terminate your rights, if any, (a)
to indemnification as a former employee or officer of NAC pursuant to
applicable law and NAC's by-law and charter provisions pertaining thereto,
(b) for coverage pursuant to NAC's then-current directors and officers
insurance policy, (c) to health care coverage and any other benefits
required to be provided under COBRA, (d) with respect to any rights in any
pension or other retirement program to the extent that such rights have
vested on or prior to the Separation Date; or (e) with respect to your
rights in the Company's 401(k) Savings Plan, to the extent that such rights
have vested on or prior to the Separation Date, or with respect to such
additional rights as may be created as a result of your continued
participation in such plan through the end of the Payment Period as
provided above.
D. Subject to the provisions of Section 9 hereof, you agree to
provide reasonable cooperation with NAC, its counsel and its insurance
carriers in the defense or prosecution of any claims brought by or against
NAC.
5. You acknowledge that you have no entitlement to receive the payments set
forth in subsection 4B hereof, other than in consideration for your
execution of the Original Release, the Bringdown Release and your
performance of the provisions of this Agreement. You confirm that no other
monies or other compensation are due to you other than as are provided for
in section 4 of this Agreement. Nothing in this Agreement shall abrogate or
otherwise relieve you of your duty to preserve the attorney-client
privilege existing in favor of NAC as a result of the performance of your
duties during the period that you served as general counsel to the Company.
6. In the event that any prospective employer or any other individual contacts
the Company for a reference regarding you, the Company shall confirm that
you were employed by the Company in the position(s) of "Vice President,
General Counsel and Secretary" and the length of your employment. In the
event that any prospective employer or any other individual requests
information from the Company regarding the circumstances surrounding your
leaving the employ of the Company, the Company will furnish a copy of the
reference letter in the form annexed hereto as Exhibit C or shall orally
communicate the information
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contained therein. The Company shall not, and shall instruct its officers,
directors, management and employees not to, make or publish any comment
that is defamatory, disparaging or otherwise critical of you or that would
otherwise tend to have an adverse effect upon your professional reputation.
7. You acknowledge that you have acquired Confidential Information (as defined
below) while working for NAC and Business Records (as defined below) of
NAC. It is understood by you and the Company that the General Release,
Company Release and non-disclosure provisions of this Agreement are
essential consideration for this Agreement and an award of damages may be
made for a violation thereof. Any such award shall not affect the
enforceability of the General Release or Company Release.
A. As used herein, "CONFIDENTIAL INFORMATION" means any proprietary,
confidential and/or other non-public information of, relating to
or regarding the business or interests of the including, without
limitation, information pertaining to the Company's business,
business plans, completed or pending transactions, board meetings,
personnel or development plans and activities, trade secrets,
databases, company policies, procedures and techniques,
correspondence, agreements, confidentiality agreements, offering
packages, business descriptions and profiles, financial
information, product literature and technical projects of,
regarding or relating to the Company, and any research datum or
result, report, analysis, study, invention, customer and/or
prospect list, process or other work product developed by or for
the Company, including, without limitation, that developed by you,
whether on the premises of the Company or elsewhere.
Notwithstanding the foregoing, the provisions of this Agreement
shall not apply to any Confidential Information to the extent, but
only to the extent, that the same is, or has become, publicly
known under circumstances involving no breach of this Agreement or
has been disclosed pursuant to order or requirement of a court,
administrative agency or other governmental body of competent
authority, PROVIDED that the Company has been given appropriate
and reasonable notice of such proceeding and a reasonable
opportunity to contest such disclosure.
B. All business, financial, product and technical records,
information and literature relating to the business of the Company
(all such business, financial, product and technical records,
information and literature being hereinafter referred to
collectively as "BUSINESS RECORDS"), including, without
limitation, Confidential Information, agreements, confidentiality
agreements, papers, databases, contact records, documents and
correspondence and studies containing information relating to the
Company, and any copies of any of the foregoing, in all cases
irrespective of the manner in which such information was obtained
or is kept or stored, made or kept by you or under your
possession, custody or control or in the possession, custody or
control of any agent and representative of yours shall be and
remain the sole and exclusive property of the Company and shall be
surrendered to the Company on or before the Separation Date.
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C. You agree not to use or disclose to any person or entity (other
than your attorney, who shall keep such information confidential)
any such Confidential Information, whether for your benefit or for
the benefit of another, and you will hold and treat such
information as confidential unless you have specific written
authorization from NAC to use or disclose it.
D. By the Separation Date, you agree to return to NAC any and all
Business Records and other property of NAC in your possession, or
otherwise under your control, including, without limitation, all
documents, data files, computer disks, other materials and all
copies thereof. You shall not, and shall cause your agents,
representatives and affiliates not to, retain, publish or
disclose, or otherwise use, without the prior written consent of
the CEO of the Company, any Business Records of the Company.
Further, except in the ordinary course of your current activities,
you shall not, and shall not allow or permit any representative or
agent of yours to, delete any scheduling or other information with
respect to any pending activities, or otherwise delete, move,
remove or otherwise distort or alter any Business Records
(regardless of the form or medium in which the same may be
maintained).
E. The foregoing provisions regarding Business Records shall not
apply to any Business Records that have been filed with the SEC or
are otherwise part of the public domain, to copies of the
Company's indemnification provisions or to the Company's
then-current directors and officers insurance policy. The Company
agrees that it shall provide you with copies of such insurance
policy during each of the next three (3) renewal periods.
F. Except as otherwise provided in this Agreement, you agree that you
will not, directly or indirectly, for yourself or on behalf of any
other person, firm, association or agency, make or publish any
comment that is defamatory, disparaging or otherwise critical of
the Company, its products, transactions, businesses, officers,
directors, attorneys, agents, management, employees or operations.
G. It shall not be a violation of this Agreement if you are required
to disclose any Confidential Information or Business Records
during testimony you give under oath PROVIDED that the Company has
been given appropriate and reasonable notice of such proceeding
and a reasonable opportunity to contest such disclosure.
8. You acknowledge that a breach by you of any portion of section 7 of this
Agreement or the General Release could cause the Company irreparable injury
and damage. Because it would not be possible to determine the true and
complete extent of the injury or damage to the Company in the event of such
a breach, you agree that any breach of the terms of this Agreement will
subject you to liability to NAC for immediate injunctive relief and all
damages awarded by the Court; it being agreed that each party shall bear
its own attorney's fees and costs in bringing or defending the action. You
further agree that in the event of a
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material breach of the terms of this Agreement as determined by a court of
competent jurisdiction, in whole or in part, any amounts paid to you
pursuant to section 4 shall become immediately due and payable to NAC, no
further payments under section 4, if any, shall be due to you and NAC will
have and may pursue its legal remedies for repayment, including, but not
limited to, the remedy of recession for breach of contract, fraud and
misrepresentation.
9. Subsequent to the Separation Date:
A. If the Company requests you to participate in or expend time or
efforts in connection with any Company-related matter, the Company shall
compensate you at the rate of $75.00 per hour for the actual number of
hours you spend on such matters. The Company agrees that you may refuse a
request to participate in or expend time or efforts in connection with any
Company-related matter, provided, however, that you agree that:
(i) during the 30 days immediately following the Separation
Date, you shall provide to the Company up to two (2)
hours of telephonic consultation per week; and
(ii) during the 31st through 60th days immediately following
the Separation Date, you shall provide to the Company up
to one and one-half (1.5) hours of telephonic
consultation per week.
B. If a third party requests, by subpoena or otherwise, you
to participate in or expend time or efforts in
connection with any Company-related matter, you shall
promptly contact the Company's Chief Executive Officer
and cooperate fully with the Company and its counsel or
other advisors, in which event you shall be entitled to
the same hourly rate as set forth in the previous
subsection.
10.
A. You affirm that you have not caused or permitted to be
filed on your behalf, nor will you cause or permit to be
filed or asserted on your behalf, any charge, complaint,
grievance, or proceeding before any federal, state or
local administrative agency or court, or any other
forum, against the Company, its officers, directors and
employees. In the event that any charge, complaint,
grievance, arbitration, action or other proceeding was
or is filed by you, or on your behalf (other than to
receive the consideration promised to you in section 4
of this Agreement and other than a claim under the Age
Discrimination in Employment Act of 1967, as amended),
you agree that you will not obtain or accept any
recovery or relief therefrom or provide any testimony
unless required to do so by subpoena. In the event that
such claim falls under XXXX, NAC will have a set off
against any judgment in your favor equal to the full
amount of the consideration promised to you in section 4
of this Agreement. You further agree to perform and
authorize the Company to perform all acts necessary to
obtain the immediate withdrawal and/or dismissal with
prejudice, at your own cost and expense, of each such
claim and to pay the legal fees and costs incurred by
the Company for actions taken to defend against and to
seek to obtain the
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dismissal of any action or claim that is filed or
asserted. You further acknowledge that the filing of any
action, other than one to enforce any provision of this
Agreement, would be a breach of this Agreement and would
make you liable for the repayment to the Company of any
and all of the payments set forth in section 4 hereof
that were paid to you.
B. The Company affirms that it has not caused, nor
permitted to be filed on its behalf, any charge,
complaint, grievance, or proceeding before any federal,
state or local administrative agency or court, or any
other forum, against you.
11. This Agreement shall be binding on you and the Company, our respective
heirs, executors, administrators, successors and assigns, and shall be
construed under the laws of the State of Ohio to preserve its
enforceability and to effect the general release, settlement and waiver of
all claims of each and every kind except those specifically preserved
hereunder. A court may modify or delete any otherwise unenforceable clause.
12. You and the Company agree to be legally bound by this Agreement, and hereby
agree that this Agreement can be modified only by a written memorandum
signed by both you and the Company, which recites the specific intent to
modify this Agreement. This Agreement is subject to approval by the
Company's Board of Directors.
13. The terms of this Agreement and the General Release attached hereto are the
product of mutual negotiation and compromise between you and the Company.
The meaning, effect and terms of this Agreement and the General Release
have been fully explained to you, and you understand that this Agreement
and the General Release settles, bars, and waives any and all claims that
you have or could possibly have against the Company, unless prohibited from
releasing such claim by law or unless expressly reserved hereunder. You
acknowledge that you have been given a period of at least twenty-one (21)
days to consider this Agreement and the General Release and their content
and its ramifications and that to the extent that you execute this
Agreement and the General Release prior to the end of such twenty-one (21)
day period you knowingly and voluntarily waive such review period.
You understand that you may revoke your execution of this Agreement and the
General Release within the seven (7) business day period following the day
you execute this Agreement and the General Release. You understand that
this Agreement and the General Release shall not become effective or
enforceable until the revocation period has expired and no further payments
need be made during that time. Any revocation within this period must be
submitted, in writing, to the Company and state, "I hereby revoke my
acceptance of our Agreement and the General Release". Said revocation must
be personally delivered to the Company, in care of Xxxxx X. XxXxxxxx, Chief
Executive Officer, or his designee, or mailed to the Company, in care of
Xxxxx X. XxXxxxxx, Chief Executive Officer, and postmarked within seven (7)
business days of the execution of this Agreement and the General Release.
If written notice of revocation is not received by NAC within the seven (7)
day period, this Agreement and the General Release shall be fully effective
and enforceable and the
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Company shall thereupon deliver to you a fully executed Company Release in
the form annexed hereto as Exhibit B.
14. You acknowledge that you have been advised by the Company to consult with
an attorney prior to executing this Agreement and the General Release. You
understand that you will have ample time to consult further with your
counsel during the revocation period described in section 13 of this
Agreement. The Company agrees that you shall be reimbursed for your actual
costs in connection with obtaining such legal advice, in an amount not to
exceed $2,500.
15. You acknowledge that you have carefully read and fully understand the terms
of this Agreement and the General Release and that your acceptance of this
Agreement in accordance with the terms hereof releases the Company from any
and all claims arising out of your employment relationship with the
Company, or the termination thereof. You acknowledge that you have signed
this Agreement and the General Release of your own free will, in exchange
for the benefits to be provided to you as set forth in section 4 hereof.
16. No representative of the Company has made any representations or promises
to you concerning the terms and effects of this Agreement and the General
Release other than those contained in this Agreement and the General
Release, and in executing this Agreement and the General Release, you do
not rely, and have not relied, upon any representations or statements not
set forth herein with regard to the subject matter, basis or effect of this
Agreement and the General Release or otherwise.
17. This Agreement and the General Release constitute your and the Company's
entire agreement with respect to its subject matter and may not be modified
or amended except as set forth in section 12 hereof. This Agreement and the
General Release supersede all prior agreements and understandings
concerning its subject matter, including but not limited to, your
employment and other relationships with the Company. This Agreement and the
General Release shall be interpreted, construed, and enforced in accordance
with the laws of the State of Ohio. You and the Company consent to personal
jurisdiction and venue in the federal and state courts situated in
Cleveland, Ohio, with respect to any dispute arising between you and the
Company arising and you and the Company waive trial by jury for any such
action.
[SIGNATURE PAGE FOLLOWS]
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Your signature on the copy of this Agreement in the space
provided below, as well as your execution of the General Release in the form
annexed hereto as Exhibit A, shall constitute your acceptance of the terms and
conditions hereof.
Very truly yours,
NATIONAL AUTO CREDIT, INC.
By /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. XxXxxxxx, CEO
AGREED AND ACCEPTED:
this 25th day of April, 2001.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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EXHIBIT A
GENERAL RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT
Xxxxxxx X. Xxxxxx, as RELEASOR, in consideration of the sum of One
($1.00) Dollar and other good and valuable consideration set forth in the
Agreement between RELEASOR and National Auto Credit, Inc. ("NAC") dated April
25, 2001, releases and discharges NAC and NAC's affiliates, officers, directors,
employees, agents, subsidiaries, successors, employees, attorneys and assigns
(collectively, "RELEASEE") from all actions, causes of action, contracts,
agreements, claims for bonuses, payments, wages, benefits or other forms of
compensation, charges, complaints and demands whatsoever, in law or equity,
which against RELEASEE RELEASOR, his dependents, heirs, creditors, executors,
administrators, successors, assigns or counsel may have, whether now known or
unknown, from the beginning of the world to the day of the date of this RELEASE,
including, but not limited to, all claims relating to RELEASOR'S
employment/consulting services or relationship with NAC and his service as an
officer and director of NAC and the cessation thereof. Without limitation to the
foregoing, RELEASOR hereby waives, releases and discharges any actions sounding
in or related to tort (including defamation, infliction of emotional distress or
other tort), contract (whether oral or written, expressed or implied from any
source), tort, promissory estoppel, or arising under the Worker Adjustment and
Retraining Notification Act of 1988, 23 U.S.C. Section 2101 et seq., or
discrimination of any kind, including but not limited to all claims under the
Age Discrimination in Employment Act, 29 U.S.C. Section 621 et seq.; the Civil
Rights Act of 1871, 42 U.S.C. Section 1981; the Civil Rights Act of 1964, 42
U.S.C. Section 2000e, et seq.; Ohio Revised Code Section 4112; Ohio Revised Code
Section 4101.17; the Americans With Disabilities Act, 42 U.S.C. Section 12101,
et seq.; the Rehabilitation Act, 29 U.S.C. Section 701 et seq.; the Older
Workers Benefit Protection Act, 29 U.S.C. Section 621 et seq; the National
Labor Relations Act, the Fair Labor Standards Act under; the Employee Retirement
Income Security Act of 1974; the Vocational Rehabilitation Act; and any other
federal, state or local discrimination, bias, human or civil rights, wage-hour,
pension or labor laws, rules and/or regulations or public policies or any other
claim, whether known or unknown, of any kind whatsoever.
Nothing in this General Release shall release or discharge the provisions of the
Letter Agreement between Xxxxxxx X. Xxxxxx and NAC dated April 25, 2001.
This General Release shall be interpreted, construed, and enforced in accordance
with the laws of the State of Ohio.
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The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be modified or changed except in a written instrument
executed by NAC and by Xxxxxxx X. Xxxxxx.
IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S
hand and seal on the 26th day of April, 2001.
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/S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
STATE OF OHIO )
COUNTY OF CUYAHOGA ) SS.:
On the 26th day of April, 2001, before me personally came Xxxxxxx X.
Xxxxxx, to me known, and known to me to be the individual described in, and who
executed the foregoing RELEASE, and xxxx acknowledged to me that he executed the
same.
/s/ Xxxxxxx Xxxxxx
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Notary Public
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EXHIBIT B
COMPANY RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT
National Auto Credit, Inc., together with its officers, directors,
affiliates, successors and assigns, ("NAC") as RELEASOR, in consideration of the
sum of One ($1.00) Dollar and other good and valuable consideration set forth in
the Agreement between RELEASOR and Xxxxxxx X. Xxxxxx dated April 25, 2001,
releases and discharges Xxxxxxx X. Xxxxxx ("RELEASEE") from all disputes,
actions, causes of action, contracts, agreements, claims, complaints and
demands, in law or equity, arising solely from or relating solely to (a) expense
reimbursement forms submitted to RELEASOR by RELEASEE, (b) malfeasance, (c)
misfeasance or (d) nonfeasance which against RELEASEE RELEASOR, may have,
whether now known or unknown, from the beginning of RELEASEE's employment by NAC
to the day of the date of this RELEASE.
Nothing in this RELEASE shall release RELEASEE from any liability set forth in
Disciplinary Rule 6-102(A).
Nothing in this RELEASE shall release or discharge the provisions of the Letter
Agreement between Xxxxxxx X. Xxxxxx and NAC dated April 25, 2001.
This RELEASE shall be interpreted, construed, and enforced in accordance with
the laws of the State of Ohio.
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The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be modified or changed except in a written instrument
executed by NAC and by Xxxxxxx X. Xxxxxx.
IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S
hand and seal on the 25th day of April, 2001.
National Auto Credit, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. XxXxxxxx, CEO
STATE OF NEW YORK )
COUNTY OF NEW YORK )ss.:
On this 25th day of April , 2001, before me, the undersigned,
personally appeared Xxxxx X. XxXxxxxx, personally known to me, who by me duly
sworn, did depose and say that deponent is the Chief Executive Officer of
National Auto Credit, Inc., the corporation described in, and which executed the
foregoing instrument, that it was executed by order of the Board of Directors of
the corporation, and that deponent signed xxxxxxxx's name by like order.
Xxxxx Xxxxxx Xxxxxx
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NOTARY PUBLIC
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EXHIBIT C
REFERENCE LETTER
NATIONAL AUTO CREDIT, INC.
To Whom It May Concern:
This is to inform you that Xxx Xxxxxx worked at National Auto Credit,
Inc. as Vice President, General Counsel and Secretary from October, 1997 to
June, 2001. Xx. Xxxxxx had a wide variety of duties and responsibilities
commensurate with such a position, all of which he performed in an exemplary
fashion. Xxx was a loyal and hard-working employee who contributed to the
success of NAC. His separation from the Company was due solely to the fact that
NAC terminated operations in Cleveland, Ohio. I strongly recommend Xxx Xxxxxx
for a position with your Company.
Chairman of the Board
