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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), dated and effective as of the 1st day
of August, 1998, by and between National Auto Finance Company, Inc. (the
"Company"), a Delaware corporation, and Xxxxxx Xxxxxxxx ("Xxxxxxxx"), residing
at 0000 Xxx Xxxxxx Xxx, #0000, Xxxxxxxxxxxx Xxxxx, Xxxxxxx.
WITNESSETH
WHEREAS, the Company is engaged in the business of non-prime specialty
consumer finance, including, without limitation, the purchasing, originating,
financing, securitizing, collecting and servicing of motor vehicle retail
installment sales contracts, and intends to develop service bureau and service
center businesses (collectively, the "Business"); and
WHEREAS, the Company desires to retain the services of Xxxxxxxx in the
capacity of Vice President and Chief Financial Officer, and Xxxxxxxx desires to
provide such services in such capacity to the Company, on the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants, agreements and obligations set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment and Term. The Company hereby employs Xxxxxxxx, and
Xxxxxxxx hereby accepts employment by the Company, in the capacity and on the
terms and subject to the conditions set forth in this Agreement, for the period
of time commencing on August 1, 1998, and ending on July 31, 2001, unless this
Agreement is sooner terminated as provided herein (the "Term").
2. Duties. During the Term, Xxxxxxxx shall, in his capacity as the
Company's Vice President and Chief Financial Officer, serve the Company
faithfully and to the best of his ability and devote his full business time to
the Business of the Company, subject to the provisions of Section 3 herein, as
(i) is necessary to carry out the duties and responsibilities customarily
incident to such a position, including, without limitation, the management of
the Company's financial and accounting matters and the supervision of employees
of the Company who are subordinate to Xxxxxxxx, and (ii) may be reasonably
assigned to him from time to time by the Board of Directors or the Chairman,
Chief Executive Officer and/or President of the Company,
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or by anyone else designated by those officers or directors. Xxxxxxxx shall
report to the Board of Directors and to the Chairman, Chief Executive Officer
and/or President, if any, of the Company, or to anyone else designated by those
directors or officers.
3. Other Business Activities. During the Term, Xxxxxxxx shall not,
without the prior written consent of the Company, directly or indirectly engage
in any other business activities or pursuits, except activities in connection
with charitable or civic activities, personal investments, service as an
executor, trustee or in other similar fiduciary capacities and such other
activities as are not inconsistent with his position with the Company and do not
interfere with the performance of Xxxxxxxx'x duties, responsibilities and
obligations pursuant to this Agreement.
4. Compensation.
(a) Salary. During the Term, the Company shall pay Xxxxxxxx, and
Xxxxxxxx hereby agrees to accept, as compensation for all services rendered and
for Xxxxxxxx'x covenant not to compete as provided for in Section 9 hereof, a
base salary (the "Base Salary") at an annual rate as follows:
(i) $110,000 for the period August 1, 1998 through July 31, 1999;
(ii) no less than $117,700 for the period August 1, 1999 through July
31, 2000; and
(iii) no less than $125,939 for the period August 1, 2000 through July
31, 2001.
The sole and final determination of whether Xxxxxxxx will receive an increase of
his Base Salary for the second and third years of this Agreement in excess of
the minimum seven (7) percent annual increase will be made by the Compensation
Committee of the Company's Board of Directors or equivalent committee of any
successor entity or parent organization, pursuant to senior executive
compensation plans adopted by such committee. Payment of the Base Salary shall
be made in the same manner as the Company routinely pays its other executive
employees. All applicable income, social security and other taxes and charges
which are required by law to be withheld by the Company or which are requested
to be withheld by Xxxxxxxx, shall be deducted from the Base Salary in accordance
with the Company's normal payroll practice for its salaried executives from time
to time in effect.
(b) Incentive Bonus. Xxxxxxxx shall be eligible for an incentive bonus
("Incentive Bonus") for each of calendar years 1998, 1999 and 2000. For calendar
year 1998, Xxxxxxxx shall be entitled to an Incentive Bonus of $13,832.88, which
represents a pro-rated amount based upon an annual bonus of 30% of Xxxxxxxx'x
1998 Base Salary. Such Incentive Bonus earned for calendar year 1998 shall be
paid on or before March 31, 1999. The sole and final determination of whether
any Incentive Bonus will be awarded for calendar years 1999 or 2000 or the
amount
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of any such Incentive Bonus will be made by the Compensation Committee of
the Company's Board of Directors or equivalent committee of any successor entity
or parent organization, pursuant to senior executive compensation plans adopted
by such committee. Any Incentive Bonus earned for calendar years 1999 or 2000
shall be paid on or before March 31 of the next succeeding year.
(c) Signing Bonus: Xxxxxxxx shall receive a signing bonus of $5,000
payable on the effective date of this Agreement.
5. Stock Option Plan. Xxxxxxxx shall be entitled to participate in the
Company's 1996 Share Incentive Plan (as the same may be amended or modified from
time to time), and any other plans implemented by the Company or any successor
entity or parent organization (within the meaning of Rule 12 b-2 under the
Securities Exchange Act of 1934) granting shares of capital stock, options or
warrants to purchase shares of capital stock or other forms of equity or equity
derivative securities, of the Company or any successor entity or parent
organization, as such grants may be made from time to time by the Board of
Directors or Compensation Committee governing such plan. While Xxxxxxxx shall be
eligible to participate in such stock option plan(s), the sole and final
determination of whether any grants will be made or the amount of any such grant
will be made by the Compensation Committee of the Company's Board of Directors
or equivalent committee of any successor entity or parent organization.
Notwithstanding anything set forth to the contrary herein, the Compensation
Committee of the Board of Directors of the Company did approve on June 29, 1998
granting Xxxxxxxx an option to purchase shares of the common stock of the
Company equal to 0.5% of the outstanding common stock of the Company on a
fully-diluted basis, subject to the conditions and on the terms set forth in the
grant letter to be sent by the Company to Xxxxxxxx.
6. Benefits and Expenses.
(a) Benefits. Xxxxxxxx shall be entitled to participate in such benefit
plans and programs, including pension, hospitalization, medical and dental
insurance, life and disability insurance, and vacation (collectively,
"Benefits"), as are made available to the executive employees of the Company
from time to time during the Term.
(b) Expenses. Xxxxxxxx shall be reimbursed by the Company for all
reasonable out-of-pocket business-related expenses, including travel and
entertainment expenses, incurred by him in furtherance of the performance of his
duties and responsibilities hereunder upon submission to the Company of receipts
supporting such expenses.
(c) Automobile. The Company will provide Xxxxxxxx with a car allowance
of Six Hundred Dollars ($600.00) gross per month ("Auto Allowance") and
reimburse Xxxxxxxx for
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gasoline and normal maintenance expenses for his automobile upon submission to
the Company of receipts supporting such expenses.
(d) Office Location. Xxxxxxxx shall maintain his principal office with
the Company at its headquarters in Jacksonville, Florida. Xxxxxxxx will,
however, travel to and from the Company's Boca Raton offices, as necessary to
perform his duties hereunder, up to and including the date of the Company's
closure of its Boca Raton offices.
7. Confidentiality.
(a) Non-Disclosure. Xxxxxxxx recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) of the Company is a valuable,
special and unique asset of the Company. As a result, both during the Term and
thereafter, Xxxxxxxx shall not, without the prior written consent of the
Company, for any reason, either directly or indirectly, divulge to any third
party or use for Xxxxxxxx'x own benefit, or for any purpose other than the
exclusive benefit of the Company, any and all confidential, proprietary,
business or technical information, or trade secrets of the Company which are
revealed, obtained or developed in the course of Xxxxxxxx'x employment with the
Company (the "Proprietary Information"). Such Proprietary Information shall
include, but shall not be limited to, business, financial, marketing and
development plans, models and efforts, cost information, pricing information,
marketing methods, collection and servicing methods, procedures and policies,
identities of the Company's dealers or obligors, the Company's relationships
with or potential relationships with its dealers, and any other confidential,
proprietary, business or technical information relating to the Business of the
Company or trade secrets of the Company; provided, however, that nothing herein
contained shall restrict Xxxxxxxx'x ability to make such disclosures during the
course of his employment as may be necessary or appropriate to the effective and
efficient discharge of his duties or as such disclosures may be required by law;
and further provided, that nothing herein contained shall restrict Xxxxxxxx from
divulging or using for his own benefit or for any other purpose any Proprietary
Information which is readily available to the general public so long as such
information did not become available to the general public as a direct or
indirect result of Xxxxxxxx'x breach of this Section 7.
(b) Inventions, Designs and Product Developments. All inventions,
discoveries, concepts, improvements, formulas, procedures, policies, processes,
devices, methods, innovations, designs, ideas and product developments
(collectively, "Developments"), developed or conceived by Xxxxxxxx, solely or
jointly with others, whether or not patentable or copyrightable, at any time
during the Term or within one (1) year after the termination of this Agreement
and which relate to the actual or planned Business activities of the Company,
its divisions, subsidiaries, sister organizations, or parent organization, and
all of Xxxxxxxx'x right,
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title and interest therein, shall be the exclusive property of the Company.
Xxxxxxxx hereby assigns, transfers and conveys to the Company all of his right,
title and interest in and to any and all such Developments. Xxxxxxxx shall
disclose fully, as soon as practicable and in writing, all Developments to the
Chairman, Chief Executive Officer and/or President of the Company or to anyone
else designated by those officers. At any time and from time to time, upon the
request of the Company, Xxxxxxxx shall execute and deliver to the Company any
and all instruments, documents and papers, give evidence and do any and all
other acts which, in the opinion of counsel for the Company, are or may be
necessary or desirable to document such transfer or to enable the Company to
file and prosecute applications for and to acquire, maintain and enforce any and
all patents, trademarks, registrations or copyrights under United States or
foreign law with respect to any such Developments or to obtain any extension,
validation, reissue, continuance or renewal of any such patent, trademark or
copyright. The Company will, at its expense, be responsible for the preparation
of any such instruments, documents and papers and for the prosecution of any
such proceedings and will reimburse Xxxxxxxx for all reasonable expenses
Xxxxxxxx incurs in connection therewith upon submission to the Company of
invoices with respect thereto.
8. Property of Company. All Proprietary Information and Developments
shall be and remain the sole property of the Company. During the Term of this
Agreement, Xxxxxxxx shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda or
similar materials containing information of the type identified in Section 7
hereof, or other materials or property of any kind unless necessary or
appropriate in accordance with his duties and responsibilities and, in the event
that such materials or property are removed, all of the foregoing shall be
returned to their proper files or places of safekeeping as promptly as possible
after the removal shall serve its specific purpose. Xxxxxxxx shall not make,
retain, remove and/or distribute any copies of any of the foregoing for any
reason whatsoever except as may be necessary in the discharge of his assigned
duties and shall not divulge to any third person the nature of and/or the
contents of any of the foregoing or of any other oral or written information to
which he may have access or with which for any reason he may become familiar,
except as disclosure shall be necessary in the performance of his duties; and
upon the termination of his employment with the Company, he shall leave with or
return to the Company, all originals and copies of the foregoing then in his
possession, whether prepared by Xxxxxxxx or by others.
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9. Covenant Not to Compete.
(a) Xxxxxxxx shall not, during the Term, anywhere within the
United States of America or in any other location where the activities of
Xxxxxxxx would, in the judgment of the Board of Directors of the Company or any
successor entity or parent organization, be competitive with the Business of the
Company, its divisions, subsidiaries, sister organizations, or parent
organization, do any of the following, directly or indirectly, without the prior
written consent of the Company:
(1) solicit, either directly or indirectly, business
from any dealer, customer, obligor, financial institution or company with whom
the Company shall have dealt at any time;
(2) influence or attempt to influence any dealer,
customer, obligor, financial institution or company with whom the Company shall
have dealt at any time or potential dealer, financial partner, company, customer
or obligor of the Company to terminate or modify any written or oral agreement,
arrangement or course of dealing with the Company; or
(3) influence or attempt to influence any person to
either (i) terminate or modify his employment, consulting, agency,
distributorship or other arrangement with the Company, its divisions,
subsidiaries, sister organizations, or parent organization, or (ii) employ or
retain, or arrange to have any other person or entity employ or retain, any
person who has been employed or retained by the Company, its divisions,
subsidiaries, sister organizations, or parent as an employee, salesman,
consultant or agent of the Company at any time during the one (1) year period
immediately preceding the effective date of Xxxxxxxx'x termination if the
actions enumerated in clauses (i) and (ii) would negatively affect the Business
and/or operations of the Company, its divisions, subsidiaries, sister
organizations, or parent organization for a period of two (2) years following
the effective date of Xxxxxxxx'x termination.
(b) The Company shall have the right, but not the obligation,
to require Xxxxxxxx, for a six month period of time following the termination of
Xxxxxxxx'x employment (for whatever reason), anywhere within the United States
of America or in any other location where the activities of Xxxxxxxx would, in
the judgment of the Board of Directors of the Company or any successor entity or
parent organization, be competitive with the Business of the Company, its
divisions, subsidiaries, sister organizations, or parent organization, not to
engage in the conduct proscribed by Section 9(a)(1), (2) and (3) by payment to
Xxxxxxxx, over the extended covenant period, of fifty percent (50%) of the
amount paid to Xxxxxxxx (as reflected in the Company's payroll records) by the
Company in the full calendar year immediately preceding Xxxxxxxx'x termination.
Any payments required by this Section 9(b) shall be paid by check in the same
time intervals as the Company routinely pays its executive employees. Any
exercise of the option shall be irrevocable.
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(c) If the employment of Xxxxxxxx shall either expire pursuant
to Section 1 hereof, or shall be terminated pursuant to Section 10 of this
Agreement, Xxxxxxxx shall not, for a two (2) year period of time following such
termination, employ or retain, or arrange to have any other person or entity
employ or retain, any person who has been employed or retained by the Company,
its divisions, subsidiaries, sister organizations, or parent organization any
time during the one (1) year period immediately preceding the effective date of
Xxxxxxxx'x termination.
10. Termination. This Agreement may be terminated during the Term upon the
occurrence of any of the events described in this Section 10. Upon termination,
Xxxxxxxx shall be entitled to such compensation and benefits as are described in
this Section 10.
10.1 Termination for Disability.
(a) In the event of the disability of Xxxxxxxx such that
Xxxxxxxx is unable to perform his duties and responsibilities hereunder to the
full extent required by this Agreement by reason of illness, injury or
incapacity for a period of more than one hundred twenty (120) consecutive days
or for a cumulative period of one hundred twenty (120) days within a twelve (12)
month period ("Disability" or "Disabled"), Xxxxxxxx'x employment under this
Agreement may be terminated by the Company.
(b) In the event of a termination of Xxxxxxxx'x employment
pursuant to Section 10.1(a), the Company shall be obligated to pay Xxxxxxxx (i)
all accrued but unpaid (as of the date of such termination) Base Salary,
Benefits and Auto Allowance, and to reimburse Xxxxxxxx for all unreimbursed
out-of-pocket business-related expenses and (ii) an amount equal to Xxxxxxxx'x
Base Salary for a three (3) month period (at the rate then in effect at the time
of such termination). Except as specifically set forth in this Section 10.1(b),
the Company shall have no liability or obligation to Xxxxxxxx for compensation
or benefits hereunder by reason of such termination.
(c) For purposes of this Section 10.1, except as hereinafter
provided, the determination as to whether Xxxxxxxx is Disabled shall be made by
a licensed physician selected by Xxxxxxxx and shall be based upon a full
physical examination and good faith opinion by such physician. In the event that
the Board of Directors of the Company (or any successor entity or parent
organization) disagrees with such physician's conclusion, the Board of Directors
may require that Xxxxxxxx submit to a full physical examination by another
licensed physician selected by Xxxxxxxx and approved by the Board of Directors.
If the two opinions shall be inconsistent, a third opinion shall be obtained
after full physical examination by a third licensed physician selected by
Xxxxxxxx and approved by the Board of Directors. The majority of the three
opinions shall be conclusive.
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10.2 Termination by Death. In the event that Xxxxxxxx dies
during the Term, Xxxxxxxx'x employment shall be terminated thereby and the
Company shall pay to Xxxxxxxx'x executors, legal representatives or
administrators an amount equal to all accrued but unpaid (as of the date of such
termination) Base Salary, Benefits and Auto Allowance and shall reimburse
Xxxxxxxx for all unreimbursed out-of-pocket business-related expenses, all of
which payments shall be paid within thirty (30) days of the date of such death.
Except as specifically set forth in this Section 10.2, the Company shall have no
liability or obligation hereunder to Xxxxxxxx'x executors, legal
representatives, administrators, heirs or assigns or to any other person
claiming under or through him by reason of Xxxxxxxx'x death.
10.3 Termination for Cause.
(a) The Company may terminate Xxxxxxxx'x employment under this
Agreement at any time for "Cause" upon written notice to Xxxxxxxx, which
termination shall become effective on the date specified in such notice. For
purposes of this Agreement, "Cause" (as hereinafter defined) shall mean: (i) any
material breach by Xxxxxxxx of any of his obligations under Sections 7, 8 or 9
of this Agreement; (ii) failure or refusal by Xxxxxxxx to perform satisfactorily
the duties assigned to him pursuant to this Agreement; (iii) other conduct of
Xxxxxxxx involving gross disloyalty or willful misconduct with respect to the
Company, including, without limitation, fraud, embezzlement, theft or proven
dishonesty in the course of his employment, or conviction of a felony; (iv)
Xxxxxxxx'x willful engagement in conduct materially injurious to the economic
interests or reputation of the Company; or (v) Xxxxxxxx'x insubordination, acts
of moral turpitude or other gross misconduct.
(b) In the event of a termination of Xxxxxxxx'x employment
pursuant to Section 10.3(a), the Company shall be obligated to pay to Xxxxxxxx
all accrued but unpaid (as of the date of such termination) Base Salary,
Benefits and Auto Allowance, and all Base Salary, Benefits and Auto Allowance
shall then cease at the time of such termination. Except as specifically set
forth in this Section 10.3(b), the Company shall have no liability or obligation
to Xxxxxxxx for compensation or benefits hereunder by reason of such
termination.
10.4 Termination without Cause.
(a) The Company may terminate Xxxxxxxx'x employment under this
Agreement without Cause upon at least sixty (60) days prior written notice
thereof to Xxxxxxxx, in which case this Agreement shall terminate on the date
specified in such notice.
(b) In the event of a termination of Xxxxxxxx'x employment
pursuant to 10.4(a), the Company shall be obligated to pay to Xxxxxxxx all
accrued but unpaid (as of the date of such
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termination) Base Salary, Benefits and Auto Allowance and to reimburse Xxxxxxxx
for all unreimbursed out-of-pocket business-related expenses. Xxxxxxxx shall
also be entitled to receive an amount equal to his Base Salary (at the rate then
in effect at the time of such termination) for a six (6) month period, such
amount to be paid over the applicable period at times corresponding to the
Company's normal payroll periods for executive officers as if no such
termination had occurred. Except as specifically set forth in this Section
10.4(b), the Company shall have no liability or obligation to Xxxxxxxx for
compensation or benefits hereunder by reason of such termination.
10.5 Termination by Xxxxxxxx for Good Reason.
(a) Xxxxxxxx may terminate his employment under this Agreement
at any time for Good Reason (as hereinafter defined) effective upon the date
designated by Xxxxxxxx in his written notice of termination of employment
pursuant to this Section 10.5(a); provided, that the effective date of such
termination shall not be less than ninety (90) days after such notice is given,
unless the Board of Directors of the Company (or any successor entity or parent
organization) declares such effective date to be earlier than that designated by
Xxxxxxxx, which such Board shall be entitled to do (but not earlier than the
date such notice is received). For purposes of this Agreement, "Good Reason"
shall mean a material breach by the Company of its obligations under this
Agreement, including, but not limited to, the following: (i) the failure by the
Company to pay Base Salary or any other material form of compensation or
material benefit to be paid or provided to Xxxxxxxx hereunder, which failure is
not cured by the Company within ten (10) days after the Company's receipt of
written notification from Xxxxxxxx of such failure; and (ii) any material
breach, not encompassed within clause (i) of this Section 10.5(a), of the
obligations of the Company under this Agreement which breach is not cured within
thirty (30) days after the Company's receipt of written notification from
Xxxxxxxx of such material breach.
(b) In the event of a termination of Xxxxxxxx'x employment for
Good Reason pursuant to Section 10.5(a), the Company shall be obligated to pay
to Xxxxxxxx all accrued but unpaid (as of the date of such termination) Base
Salary, Benefits and Auto Allowance and to reimburse Xxxxxxxx for all
unreimbursed out-of-pocket business-related expenses. Xxxxxxxx shall also be
entitled to receive an amount equal to his Base Salary (at the rate then in
effect at the time of such termination) for a six (6) month period, such amount
to be paid over the applicable period at times corresponding to the Company's
normal payroll periods for executive officers as if no such termination had
occurred. Except as specifically set forth in this Section 10.5(b), the Company
shall have no liability or obligation to Xxxxxxxx for compensation or benefits
hereunder by reason of such termination.
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(c) Upon ninety days notice to the Company, Xxxxxxxx may also
terminate his employment under this Agreement for any other reason not defined
as Good Reason in Section 10.5(a). In the event of such a termination, the
Company shall be obligated to pay all accrued but unpaid (as of the date of such
termination) Base Salary, Benefits and Auto Allowance and to reimburse Xxxxxxxx
for all unreimbursed out-of-pocket business-related expenses. Except as
specifically set forth in this Section 10.5(c), the Company shall have no
liability or obligation to Xxxxxxxx for compensation or benefits hereunder by
reason of such termination.
10.6 Successor Party
The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the Business and/or assets of the Company (a "Successor")
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it. If no such
agreement prior to or simultaneously with the effectiveness of any such
succession is executed and delivered to Xxxxxxxx, such failure shall constitute
a material breach of this Agreement. Xxxxxxxx agrees that the assumption by any
successor party of the duties and responsibilities of the Company under this
Agreement shall relieve the Company of any and all duties or responsibilities
under this Agreement. Moreover, such a successor party to this Agreement shall
have all rights currently afforded the Company or its Board of Directors under
this Agreement.
11. Survival of Provisions. The rights and obligations of Xxxxxxxx
pursuant to Sections 7, 8, 9, 10 and 14 of this Agreement shall survive the
termination of Xxxxxxxx'x employment hereunder.
12. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the Company and Xxxxxxxx and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Xxxxxxxx nor the Company may make any assignment of this Agreement
or any interest herein, by operation of law or otherwise, without the prior
written consent of the other parties hereto, except that, without such consent,
the Company may assign this Agreement to any Successor to all or substantially
all of the Company's assets and Business or the assets and business of any of
the Company's divisions, subsidiaries, sister organizations or parent
organization by means of liquidation, dissolution, merger, consolidation,
transfer of assets, or otherwise, provided that such Successor assumes in
writing all of the obligations of the Company under this Agreement.
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13. No Conflicting Agreements. Xxxxxxxx represents to the Company that
(i) Xxxxxxxx is not currently under contract to provide services to any other
party or entity; (ii) the execution, delivery and performance of this Agreement
by Xxxxxxxx will not conflict with any other agreement to which Xxxxxxxx is
bound or to which Xxxxxxxx is a party; and (iii) Xxxxxxxx is not currently bound
by any form of restrictive covenant which would restrict or limit the
performance of his duties pursuant to this Agreement.
14. Employee Benefits. This Agreement shall not be construed to be in
lieu of or to the exclusion of any other rights, benefits and privileges to
which Xxxxxxxx may be entitled as an employee of the Company under any
retirement, pension, profit-sharing, share incentive, insurance, hospitalization
or other plans or benefits which may now be in effect or which may hereafter be
adopted.
15. Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and sent by certified or registered
mail, return receipt requested, or hand delivery, addressed as follows or to
such other address as any party may from time to time duly specify by notice
given to the other party in the manner specified above:
If to Xxxxxxxx:
Xxxxxx Xxxxxxxx
0000 Xxx Xxxxxx Xxx, #0000
Xxxxxxxxxxxx, Xxxxxxx 00000
If to the Company:
National Auto Finance Company, Inc.
000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
16. Entire Agreement; Amendments. This Agreement contains the entire
Agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior discussions, offer letters,
agreements and understandings of every nature between the parties hereto
relating to the employment of Xxxxxxxx with the Company. This Agreement may not
be changed or modified, except by an agreement in writing signed by both of the
parties hereto.
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17. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
18. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Florida, without regard to
conflict of law principles.
19. Invalidity. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the validity of any other provision of this Agreement, and such
provision(s) shall be deemed modified to the extent necessary to make it
enforceable.
20. Section Headings. The section headings in this Agreement are for
convenience only. They form no part of this Agreement and shall not affect its
interpretation.
21. Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
legal holidays; provided, however, that if the final day of any time period
falls on a Saturday, Sunday or day which is a holiday in the State of Florida,
then such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
22. Specific Enforcement. Xxxxxxxx acknowledges that the restrictions
contained in Sections 7, 8 and 9 hereof are reasonable and necessary to protect
the legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such restrictions.
Xxxxxxxx also acknowledges that the nature of both his services to the Company
and the obligations undertaken by Xxxxxxxx in Sections 7, 8 and 9 hereof are
unique and that any breach by him of Sections 7, 8, and 9 hereof will cause
continuing and irreparable injury to the Company for which monetary damages
would not be adequate remedy. In the event of such breach by Xxxxxxxx, the
Company shall have the right to specific enforcement of the provisions of
Sections 7, 8 and 9 of this Agreement, or injunctive or other relief in any
court, and this Agreement shall not in any way limit remedies of law or in
equity otherwise available to the Company. In the event that the provisions of
Sections 7, 8 and 9 hereof should ever be adjudicated to exceed the time,
geographic, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, or other limitations permitted by applicable
law.
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23. Arbitration. Any controversy or claim arising out of or relating to
Section 10 hereof, or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitration may be
entered into any court having jurisdiction thereof. The arbitration shall be
heard by a single Arbitrator, and shall be conducted in Jacksonville, Florida.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to become effective as of the date first above written.
EMPLOYEE:
/s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
COMPANY:
NATIONAL AUTO FINANCE COMPANY, INC.
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Chief Executive Officer
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