SEPARATION AGREEMENT
This Separation Agreement ("Agreement"), dated December 30, 1997 is
made and entered into by and between Mercury Finance Company ("Mercury Finance"
or the "Company"), a Delaware corporation, and Xxxx X. Xxxxxxx ("Xxxxxxx"), an
individual residing in Lake Forest, Illinois.
Mercury Finance and Brincat desire to terminate the employment
relationship between them and all employment agreements that may have existed
between them. Therefore, in consideration of the mutual covenants and
agreements set forth herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, Mercury Finance and Brincat agree
as follows:
1. Resignation. Brincat hereby resigns effective December 1, 1997
(the "Separation Date") from employment and all offices, directorships and
positions with Mercury Finance, its divisions, parents, subsidiaries,
affiliates, partners, and limited partners (collectively, the "Related
Entities"). As of the Separation Date, Brincat shall have no duties and no
authority to, and shall not, make any representations or commitments on behalf
of Mercury Finance or the Related Entities.
2. Entire Agreement. Brincat and Mercury Finance each represent and
warrant that no promise or inducement has been offered or made except as set
forth herein and that the consideration stated herein is the sole consideration
for this Agreement. This Agreement is a complete agreement and supersedes all
agreements, understandings, promises, and commitments as to the separation of
Brincat from his employment relationship with Mercury Finance.
3. Payments to Company. Pursuant to his separation, Brincat agrees
to pay Mercury Finance the following amounts:
(a) Bonus Repayment. Brincat agrees to pay Mercury Finance the
amount of $1,000,000, in order to resolve Mercury Finance's claim that
Brincat received excess bonus compensation during the period of his
employment.
(b) Repayment for Use of Company Plane. Brincat agrees to pay
Mercury Finance the amount of $25,116, in order to resolve Mercury
Finance's claim that Brincat used the Company plane for non-business
purposes during the period of his employment.
(c) Method of Payment. Payment of one-half of the amounts
indicated in Paragraphs 3(a) and (b) shall be made by Brincat by
January 5, 1998 by delivering to Mercury Finance a cashier's check
payable to Mercury Finance. Payment of the remainder of the amounts
indicated in Paragraphs 3(a) and (b) shall be made by January 9, 1998
by Brincat by delivering to Mercury Finance a cashier's check payable
to Mercury Finance.
(d) Non-Admission. Neither the execution of this Agreement nor
the payment of any of the amounts set forth in Paragraphs 3(a) through
(c) shall constitute an admission by Brincat of any fact or conclusion
of law. Specifically, without limiting the foregoing, Brincat does
not admit by executing this Agreement or by taking any action pursuant
to its provisions that any amounts were paid to him improperly or
incorrectly or that he was under any obligation to make any repayments
or reimbursements to Mercury Finance.
4. Stock Options. Brincat agrees that all of the stock options
received by him during the course of his employment with Mercury Finance will be
canceled and returned to the Company. Brincat will execute all documents
prepared and provided by Mercury Finance that are necessary to effectuate the
cancellation and return of such stock options.
5. Benefits.
(a) Health Insurance Coverage and COBRA Election. Mercury
Finance agrees to continue Brincat's existing health insurance
coverage through January 31, 1998. Effective as of January 31, 1998,
Brincat shall be extended the opportunity to elect to continue
receiving health insurance coverage in accordance with the provisions
of Section 4980B of the Internal Revenue Code of 1986, as amended
("COBRA"). Brincat shall also be entitled to the continuation of any
other benefits to the extent required under applicable law.
(b) Retirement Benefits. By executing this Agreement, Brincat
does not waive his right to receive retirement benefits under the
Company's qualified retirement plan and 401(k) plan as of the
Separation Date. Mercury Finance will provide Brincat with an
accounting of Brincat's retirement benefits under the Company's
qualified retirement plan and 401(k) plan by January 15, 1998. All
other retirement benefits, including any SERP or TEFRA shortfall
benefits, are terminated.
(c) Except as provided in this paragraph, Brincat shall not be
entitled to any other benefits provided by Mercury Finance. Further,
Brincat agrees that he is not owed any salary for employment up to his
Separation Date.
6. Mutual Release of Claims.
(a) By the Company. Except as provided herein, Mercury Finance
agrees to release Brincat and all of his heirs and assigns from any and all
claims, charges, demands, suits, rights or causes of action, at law or
equity or otherwise and any and all rights to or claims for damages or
equitable relief, which Mercury Finance or any of the Related Entities ever
had or now has, whether known or unknown, with respect to the computation
of his alleged excess compensation and all other compensation and benefit
matters.
(b) By Brincat. Except as provided herein, Brincat agrees to
release Mercury Finance and all of the Related Entities from any and
all claims, charges, demands, suits, rights or causes of action, at
law or equity or otherwise and any and all rights to or claims for
damages or equitable relief, which Brincat or any of his heirs or
assigns ever had or now has, whether known or unknown, with respect to
the computation of his alleged excess compensation and all other
compensation and benefit matters. Brincat and Mercury Finance
expressly agree that this Separation Agreement is binding on any of
Brincat's heirs or assigns.
7. Indemnification and D&O Insurance. Brincat expressly reserves his
right to seek indemnification from Mercury Finance under the Company's charter,
Delaware law, or otherwise, for expenses already incurred or to be incurred by
him in connection with his defense of government investigations or civil or
criminal litigation. Brincat expressly reserves his right to make claims
against the Company's D&O insurance for such expenses. Brincat expressly
reserves any and all other rights to indemnification to which he may be
entitled.
8. Public Statement. Neither Mercury Finance nor Brincat shall issue
any press release or other statement to the media or general public concerning
the circumstances of Brincat's separation from the Company unless the terms of
such release are expressly approved by the other party to this Separation
Agreement.
9. Intra-Company Statement. Mercury Finance shall not issue any
intra-Company memorandum concerning the circumstances of Brincat's separation
from the Company unless the terms of such memorandum are expressly approved by
Brincat.
10. Non-Competition and Use of Confidential Information.
(a) Brincat agrees that he will not, except with the written
consent of the Company or as set forth herein, for a continuous period
of twelve (12) months from his Separation Date, directly or indirectly
engage or become interested in, as a partner, director, officer,
principal agent or employee, any business which competes with services
performed, marketed or in development by Mercury Finance during his
employment with Mercury Finance. Notwithstanding any of the preceding
restrictions, Brincat may confer privately with Xxxx Xxxxxxx regarding
Xxxx Xxxxxxx'x business and is free to invest in any way in such
business, provided that Brincat will not have any contact with any
other person regarding Xxxx Xxxxxxx'x business and will not be held
out as having any connection with Xxxx Xxxxxxx'x business, for a
continuous period of twelve (12) months from the Separation Date.
Brincat agrees that he will not solicit directly or indirectly the
hiring of any of the Company's employees for a continuous period of
fifteen (15) months from the Separation Date. Brincat and Mercury
Finance understand and intend that Mercury Finance will enter into a
separate agreement with Xxxx Xxxxxxx wherein he will agree, on behalf
of his business, not to solicit the hiring of any of the Company's
employees for a continuous period of fifteen (15) months, beginning on
the Separation Date.
(b) Brincat acknowledges that during his employment he made use
of and acquired confidential information of Mercury Finance, and
became familiar with the Company's business, activities, employees,
customers and suppliers. Therefore, in order to protect such
confidential information and to protect other employees who depend
upon Mercury Finance for regular employment, Brincat agrees that,
except with the consent of the company, he will not in any way utilize
any of said confidential information and he will not copy, reproduce,
or take with him the original or any copies of said confidential
information.
11. No Transfer. The parties represent and warrant to each other
that they have not sold, assigned, transferred, conveyed or otherwise disposed
of to any third-party, by operation of law or otherwise, any action, cause of
action, suit, debt, obligation, account, contract, agreement, covenant,
guarantee, controversy, judgment, damage, claim, counterclaim, liability or
demand of any nature whatsoever relating to any matter covered by this
Agreement.
12. Severability. If any provision of this Agreement shall be found
by a court of competent jurisdiction to be invalid or unenforceable, in whole or
in part, that such provision shall be deemed to be modified or restricted to the
extent and in the manner necessary to render the same valid and enforceable, or
shall be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by
law, as if such provision had been originally incorporated herein as so modified
or restricted, or as if such provision had not been originally incorporated
herein as the case may be.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to contracts
made and to be performed there.
14. Amendment. Any amendment to this Agreement shall only be made in
writing and signed by the parties hereto.
15. Waiver. No claim or right arising out of a breach or default
under this Agreement can be discharged by a waiver of that claim or right unless
the waiver is in writing signed by the party hereto to be bound by such waiver.
A waiver by any party hereto of a breach or default by the other party of any
provision of this Agreement shall not be deemed a waiver of fixture compliance
therewith and such provision shall remain in full force and effect.
16. Notice. All notices, requests, demands and other communications
under the Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid, and properly addressed as follows:
To Brincat:
Xx. Xxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
With a copy to:
Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
To Mercury Finance:
Mercury Finance Company
000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx, General Counsel
The parties agree to notify each other of any change in mailing address.
17. Execution. This Separation Agreement may be executed in
counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement consisting of seven pages.
MERCURY FINANCE COMPANY XXXX X. XXXXXXX
By: /s/ Xxxx X. Xxxxxxx
Title:
Date: Date: 12/31/97
