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Exhibit 10.7
AGREEMENT
This Agreement is entered into this 30th day of July 1999 between
Xxxxxx X. Xxxxxx ("Xxxxxx and National Auto Credit, Inc., a Delaware corporation
("NAC"). Xxxxxx has been employed by NAC Vice President-Finance and Controller
and Xxxxxx and NAC have both determined that it is in their respective best
interests to discontinue the employment relationship between them, subject to
the conditions set forth in this Agreement.
Now, therefore, for and in consideration of the premises and intending
to be legally bound, Xxxxxx and NAC agree as follows:
1. Termination of Employment. Effective immediately upon the execution
of this Agreement by both parties, Xxxxxx hereby resigns as an employee of and
as an officer of NAC and as an employee and officer of any and all subsidiaries
of NAC. From and after the effectiveness of these resignations, Xxxxxx shall not
be an employee or officer of NAC or any subsidiary and shall not be required to
perform any further services for or on behalf of NAC or any subsidiary except as
agreed upon in Section 6. NAC shall deliver to Xxxxxx within 30 days of
execution of this Agreement the certificates for the vested restricted stock
granted for Xxxxxx, provided that with respect to the "redlined" shares, NAC
shall repurchase those shares at the vesting date market price used for income
tax purposes. Such share payment shall be made within 30 days of this Agreement.
2. Consideration. As consideration for termination of employment and
execution of this Agreement by Xxxxxx and her resignation as set forth in
Section 1, NAC shall pay and provide to Xxxxxx the following amounts and
benefits:
2.1 Severance Payment. NAC shall pay to Xxxxxx her salary through
August 31, 1999 in full compensation for earned but unpaid vacation. In
addition, NAC shall pay to Xxxxxx the sum of $200,000 in bi-weekly
installments of $7,692.31 commencing with the first scheduled payroll
in August 1999 and continuing until paid in full by July 31,2000
("final payment date").
2.2 Health Insurance Coverage and Other Benefit Continuation. NAC shall
provide to Xxxxxx. NAC's sole cost and expense, health, dental and life
insurance coverage through the final payment date with coverage and
benefits (including family health coverage and all other benefits
including the 401K Company match) at least as favorable as the coverage
and benefit being provided to Xxxxxx immediately before her
resignation. The final payment shall constitute a "qualifying event"
for the purposes of Part 6 of Title 1 of the Employee Retirement Income
Security Act of 1974, as amended ("COBRA").
2.3 Automobile. NAC shall provide Xxxxxx with the use of an automobile
through the final payment date with all costs associated with the
operation and use of the automobile borne by NAC, including, without
limitation, all costs of registrations, insurance, repairs,
maintenance, fuel, oil, together with a payment equal to the income and
payroll taxes associated with the use
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of said vehicle and this tax payment. The automobile so provided shall
be the same automobile provided by NAC to Xxxxxx immediately before her
resignation except that, if that automobile must be replaced (due, for
example, to mechanical failure or accident), the replacement automobile
shall be a new automobile of the same make and model.
On (or within 10 business days thereafter) the final payment date,
Xxxxxx may purchase the said automobile free and clear of all liens and
encumbrances for $100.00. Any taxes, including income as sales taxes
associated with this sale and this tax payment shall be paid by NAC.
If Xxxxxx dies before all payments are made in Section 2.1, (a) any
installments of the $200,000 provide for in Section 2.1 that had not been made
before the date of her death shall be made to her estate, (b) the health and
dental insurance coverage referred to in Section 2.2 shall be continued to her
survivors through final payment date (c) and the use of the automobile referred
to in Section 2.3 shall be made available to her survivors through final payment
date.
3. Indemnification. NAC shall indemnify Xxxxxx to the fullest extent
permitted or authorized by the Delaware General Corporation Law as it may from
time to time be amended, against any and all loss, damage, co. or expense
(including attorneys' fees) actually and reasonably incurred by Xxxxxx in
connection with any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including, without limitation, the pending
Securities and Exchange Commission investigation and any subsequent enforcement
actions and the pending shareholder litigation) to which Xxxxxx has been made or
is threatened to be made a party, by reason of the fact that Xxxxxx is or was an
officer or employee of NAC or any subsidiary of NAC if employee acted in good
faith and in a manner employee reasonably believed to be in or not opposed to
the best interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct of Xxxxxx was
unlawful. No indemnification shall be made in respect of any claim, issue or
matter as to which Xxxxxx shall have been adjudged to be liable to NAC unless
and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that. despite the
adjudication of liability but in view of all circumstances of the case, employee
is fairly and reasonably entitled to indemnification for such expenses which the
Court of Chancery or such other court shall deem proper .The indemnification
provided by the Section 3 shall not be deemed exclusive of any other rights to
which Xxxxxx may be entitled under the articles of incorporation or the by-laws
of NAC or of any subsidiary (which rights to indemnification under any such
articles and/or by-laws NAC shall provide to Xxxxxx to the fullest extent
possible) or any agreement. vote of shareholder~ or disinterested directors, or
otherwise, both as to action in Xxxxxx'x official capacity and as to action in
another employment capacity while holding such office, and shall continue as to
Xxxxxx regarding maters occurring during her employment after Xxxxxx has ceased
to be an officer or employee and shall inure to the benefit of the heirs,
executors, and administrators of Xxxxxx.
4. Cooperation in Defense. NAC shall cooperate fully with Xxxxxx, at
NAC's sole cost and expense, in Xxxxxx' s defense of any threatened, pending, or
completed action, suit, or proceeding of the type described in Section 3,
provided that the parties hereto are not adverse. Xxxxxx shall cooperate fully
with NAC in NAC's defense of any threatened, pending, or completed action, suit,
or proceeding of the type described in Section 3, provided that the parties
hereto are not adverse.
5. Certain Expense. Expenses (including attorneys' fees) incurred by
Xxxxxx in defending any action, suit, or proceeding commenced or threatened
against Xxxxxx for any action or failure to act as an employee or officer
(including any of the type described in Section 3) shall be paid by NAC, as they
are incurred, in advance of final disposition of the action, suit, or proceeding
on receipt of an undertaking that Xxxxxx: (i) has reasonably incurred or will
reasonably incur actual expenses in defending a civil or criminal action, suit
or proceeding; and (ii: undertakes to repay such amount if it is ultimately
determined that she is not entitled to be indemnified by NAC under this
Agreement of otherwise. The obligation of NAC to advance expenses provided for
in this Section 5 shall not be deemed exclusive of any other rights to which
Xxxxxx may be entitled under the articles of incorporation Of the by-laws of NAC
(which obligation under any such articles and/or by-laws NAC shall fully honor)
or any agreement, vote of shareholders or disinterested directors, or otherwise.
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6. Consulting Arrangement Xxxxxx agrees to provide consulting services
to NAC (the "Consulting Services") during the period commencing on August 16,
1999 and ending on August 15, 2000 (the "Consulting Period"), as renewable as
agreed to by the parties. During the Consulting Period, Xxxxxx shall be
available in person and by telephone to provide consultation and advice with
respect to NAC in any area that NAC reasonably requests consultation and advice;
provided, however, that the Consulting Services shall be guaranteed for at least
120 hours per month during the first six (6) months, 80 hours per month during
the next 3 months and 40 hours per month thereafter during the Consulting Period
Xxxxxx will be paid $130 per hour, monthly, for these Consulting
Services plus reasonable expenses incurred in this consulting capacity.
If Xxxxxx becomes a full-time employee of s non-related company, she or
the Company may terminate this section only upon 30 days written notice.
This Consulting Agreement is separate and independent of the Terms of
Sections 1 and 2 of this Agreement.
7. NoSet-Off' No Obligation to Seek Other Employment or to Otherwise
Mitigate. NAC's obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense, or other claim whatsoever that NAC
or anyone claiming by or through NAC may have against Xxxxxx Xxxxxx shall not be
required to mitigate the amount of any payment provided for under this Agreement
by seeking other employment or otherwise. The amount of any payment provided for
under this Agreement shall not be reduced by any compensation or benefits earned
by Xxxxxx as the result of employment by another employer or otherwise after
Xxxxxx'x resignation.
8. Validity The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
9. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification, or discharge is agreed to
in writing signed by Xxxxxx and NAC No agreement or representation, oral or
otherwise, express or implied, with respect to the subject matter hereof has
been made by cither party which is not set forth expressly in this Agreement
10. Entire Agreement This Agreement contains the entire agreement
between the parties and supersedes the Agreement dated May 1, 1998.
11. Legal Expenses. Expenses (including attorneys' fees) incurred by
Employee in connection with the preparation, negotiation and enforcement of this
Agreement shall be paid by NAC.
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IN WITNESS WHEREOF, NAC and Xxxxxx have executed this Agreement, NAC by its duly
authorized President, on the date first written above.
NATIONAL AUTO CREDIT, INC.
BY /s/Xxxxx X. Xxxx
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BY /s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
