EXHIBIT 10BB
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
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This First Amendment to Employment Agreement, dated as of July 14th ,
1998 (this "Amendment") is between Mercury Finance Company, a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxxx, Xx. ("Employee").
PRELIMINARY STATEMENTS
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1. The Company and Employee are parties to an Employment Agreement
dated February 1, 1997 (the "Employment Agreement").
2. On or about May 14, 1998, the Company entered into an agreement
with substantially all the institutional holders of claims, notes, and/or
commercial paper issued by the Company ("Senior Lenders") providing for the
financial restructuring and recapitalization of the Company ("Restructuring
Agreement").
3. The Restructuring Agreement contemplates that the restructuring
will be implemented under a prestructured plan of reorganization to be filed in
federal bankruptcy court (the "Plan").
4. The Company and Employee have agreed to amend the Employment
Agreement on the terms and conditions stated herein.
AGREEMENT
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In consideration of the promises and mutual agreements contained in
this Amendment and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties to this Amendment agree as
follows:
1. Subsection (b) (ii) of Section 1 of the Employment Agreement
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hereby is amended by deleting the reference to "thirty days" and replacing it
with "one hundred eighty (180) days".
2. Section 2 of the Employment Agreement hereby is amended by adding
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a new Subsection (c) as follows:
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(c) Success Fee. Upon confirmation of the Plan, the Company shall
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pay one million dollars ($1,000,000) to Employee, subject to automatic
forfeiture upon termination of Employee for any reason whatsoever.
3. Section 4 of the Employment Agreement hereby is amended by
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amending and restating such section in its entirety as follows:
Employer has the right to terminate Employee's employment at will
and without prior notice. Upon termination, Employee shall forfeit any right to
the payment set forth in Section 2(c).
4. Section 5 of the Employment Agreement hereby is amended by
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amending and restating such section in its entirety as follows:
(a) Employee agrees that he shall be bound by the terms of the
Confidentiality Agreement of DSI entered into with Employer on or
prior to the date hereof (the "Confidentiality Agreement").
(b) Employee acknowledges that any breach of the Confidentiality
Agreement shall cause substantial harm to the Company that cannot be
adequately compensated for in money damages, and that any breach by
Employee of the Confidentiality Agreement will cause irreparable harm
to the Company. Therefore, if Employee breaches or threatens to
breach the Confidentiality Agreement, Employee shall forfeit any right
to the payment set forth in Section 2(c) and the Company shall, in
addition to any other remedies that may be available to it, have the
right to obtain from any court having jurisdiction such equitable
relief as may be appropriate, including but not limited to, a decree
enjoining Employee from any further breach.
5. Subsection (a) of Section 7 of the Employment Agreement hereby is
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amended by amending and restating such subsection in its entirety as follows:
All notices or other communications hereunder shall be in writing and
shall be effectively given when mailed by Registered Mail/Return
Receipt Requested and directed to the party at the address given
herein or to such other address as either party may hereafter
designate to the other in writing. Any notice to Employee shall be
given to:
Xxxxxxx X. Xxxxxx, Xx.
Development Specialists, Inc.
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxx X. Xxxxx
Xxxxxx & Coff
00 X. Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Any notice to the Company shall be given to:
Xxxx Xxxxxx
Mercury Finance Company
000 Xxxxx Xxxxx Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx X. Xxxxxxxxxx
XxXxxxxxx, Will & Xxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
6. Section 7 of the Employment Agreement hereby is further amended by
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adding a new Subsection (e) as follows:
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(e) Except as provided for in Section 5(b), any controversy
relating to this Employment Agreement or amendments thereto shall be
settled exclusively by arbitration in Chicago, Illinois in accordance
with the rules of the American Arbitration Association then in affect.
Judgment may be entered on an arbitrator's award relating to this
Employment Agreement and amendments thereto in any court having
jurisdiction.
This Amendment constitutes the full and entire understanding of the
Company and the Employee with respect to the subject matter of this Amendment.
To the extent that any term of this Amendment is inconsistent with or contrary
to any term of the Employment Agreement, this Amendment shall govern.
MERCURY FINANCE COMPANY XXXXXXX X. XXXXXX, XX.
By: ____________________________ ______________________________
Its:____________________________
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