Exhibit 10.30
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (the "Agreement") is made and entered
into as of the 20th day of June, 1997 by and between CROSS-CONTINENT AUTO
RETAILERS, INC. ("C-CAR" or "Company") and XXXXXX X. XXXX, XX. ("Xx. Xxxx").
RECITALS
A. WHEREAS, Xx. Xxxx intends to voluntarily resign from employment with
C-CAR, and C-CAR intends to accept his resignation as of the date hereof.
B. WHEREAS, C-CAR and Xx. Xxxx desire to resolve all existing or
potential disputes, claims, or causes of action, known or unknown, that have
arisen or may arise between them and growing out of any act or omission of C-CAR
or any of its affiliated entities, including but not limited to, any act or
omission relating to Xx. Xxxx'x employment with C-CAR, or his resignation
therefrom, and any other positions and activities that Xx. Xxxx held or
continues to hold with C-CAR or any of its affiliated entities.
C. WHEREAS, C-CAR and Xx. Xxxx have negotiated in good faith and desire
to enter into an agreement resolving all such existing or potential disputes,
claims, and causes of action, known or unknown, as of the date of this Agreement
upon the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto voluntarily agree as follows:
1. SETTLEMENT COMPENSATION. Upon the valid execution of this
Agreement by both parties hereto, C-Car shall grant to Xx. Xxxx a non-qualified
option to purchase one-hundred thousand (100,000) shares of Cross-Continent Auto
Retailers, Inc. common stock at $10.00 per share. This option will vest on the
date this Agreement is executed by both parties and may be exercised within a
period of ten (10) years after the date this Agreement is executed by both
parties.
2. PAYMENT OF ATTORNEYS' FEES. Both parties agree to pay their own
legal fees and expenses incurred by them for legal services rendered with
respect to the review and negotiation of this Agreement.
3. CONTINUATION OF INDEMNIFICATION RIGHTS
a. In addition to any other rights Xx. Xxxx may have under this
Agreement or otherwise, Xx. Xxxx shall be entitled and continue
to be entitled, as a matter of separate contract, and without
duplication of payment or compensation, to mandatory
indemnification and advancement of expenses to the full extent
indemnification and advancement of expenses
(whether mandatory or permissive) may be available to Eligible
Persons (as hereinafter defined) under the Indemnification
Provisions (as hereinafter defined), regardless of any amendments
thereto, restatements thereof, or repeal thereof or any adoption
of new or superseding bylaws or statutory provisions, any of
which may hereafter occur.
b. C-CAR expressly agrees that Xx. Xxxx is and shall continue
to be an Eligible Person for purposes of all Indemnification
Provisions and for all purposes of this Agreement. C-CAR
expressly agrees that the right of indemnification and
advancement of expenses and the other rights provided hereunder
shall continue indefinitely as to any proceedings now pending or
threatened or which may hereafter be brought or threatened. The
rights provided hereunder shall not be deemed exclusive of any
other rights that Xx. Xxxx may now or hereafter have under any
law, statute, or regulation, the Certificate of Incorporation or
Bylaws of C-CAR, any agreement or any resolution of the Board of
Directors of C-CAR, any committee thereof or appointed thereby,
or the shareholders of C-CAR, or otherwise.
c. For purposes of this Paragraph 3:
(1) "Eligible Person" shall mean any present, former, or
future director, officer, agent, or employee of C-CAR or any
person presently serving, who formerly served or who in the
future may serve as a director, officer, agent, employee,
partner, venturer, proprietor, trustee, or similar
functionary of another corporation or of a partnership,
joint venture, sole proprietorship, trust, employee benefit
plan, or other enterprise at C-CAR's request. For purposes
of this definition, service in any such capacity with or for
any present or former subsidiary or other affiliated
enterprise of C-CAR and service in any such capacity with
any trust or employee benefit plan for employees of C-CAR or
its affiliated companies shall be deemed to have been at C-
CAR's request.
(2) "Indemnification Provisions" shall mean: (a) the
Certificate of Incorporation of C-CAR as amended or restated
and in effect as of the date of execution of this Agreement,
(b) the Bylaws of C-CAR as amended or restated and in effect
as of the date of execution of this Agreement, and (c)
Section 145 of the Delaware General Corporation Law ("DGCL")
as amended and in effect as of the date of execution of this
Agreement.
(3) To the extent any term used in this Paragraph 3 is not
defined herein, such term shall have the meaning specified
in Section 145
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of the DGCL, as amended and in effect on the date of
execution hereof.
4. RELEASE OF C-CAR. In consideration of the above stated
compensation and agreements by C-CAR, Xx. Xxxx forever and unconditionally
releases and discharges C-CAR and any of its affiliate companies or divisions
and each of their owners, directors, officers, employees, assigns,
representatives, or agents ("Releasees") from any and all claims, complaints, or
causes of action, known or unknown, of any nature whatsoever that have arisen or
may arise from any act or omission of C-CAR or any of its affiliated entities
including, but not limited to, any act or omission relating to or arising out of
Xx. Xxxx'x employment with C-CAR or his resignation therefrom. Such release
encompasses, but is not limited to, any and all claims of any type or nature by
Xx. Xxxx for wages, salary, bonuses, or other benefits of active employment with
C-CAR. Such release also encompasses, but is not limited to, claims of any type
or nature under federal or state tort or common law, alleged contract or any
federal, state, or local statutes, including Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Texas Workers Compensation Act, and the
Texas Commission on Human Rights Act.
THIS RELEASE INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIM OF ANY TYPE OR
NATURE ARISING OUT OF XX. XXXX'X ACTIVE EMPLOYMENT WITH C-CAR AND ANY
BENEFITS OF ANY KIND OR NATURE WHATSOEVER ASSOCIATED WITH XX. XXXX'X
EMPLOYMENT. NOTWITHSTANDING THE FOREGOING, NEITHER THIS RELEASE NOR ANY
OTHER PROVISION OF THIS AGREEMENT SHALL BE DEEMED A WAIVER OR RELEASE BY
XX. XXXX OF ANY OF (I) HIS RIGHTS UNDER THIS AGREEMENT, (II) ANY RIGHTS HE
MAY HAVE UNDER ANY ERISA EMPLOYEE BENEFIT PLANS OF C-CAR OR ITS AFFILIATES
(the "Plans"), (III) HIS RIGHTS TO COBRA CONTINUATION COVERAGE, OR (IV) HIS
RIGHTS OR CLAIMS AS A PARTNER UNDER THE STOCK PURCHASE AGREEMENT AS DEFINED
BELOW.
5. INSURANCE COVERAGE. C-CAR agrees that it will continue all Xx.
Xxxx'x insurance coverages until that certain Stock Purchase Agreement dated
June 20, 1997, by and between C-CAR and Xx. Xxxx, terminates or the final
closing of the transaction contemplated by the Stock Purchase Agreement occurs.
The costs of such coverages shall be borne by the parties as such costs are
currently borne.
6. AGREEMENT TO RESIGN FROM THE BOARD OF DIRECTORS. In further
consideration of the above payments and agreements by C-CAR, Xx. Xxxx agrees
that he will resign his position on the Board of Directors which he now holds
with C-CAR. Xx. Xxxx shall submit his resignation from the Board of Directors,
in writing, effective as of the date of this Agreement.
7. AGREEMENT NOT TO FILE COMPLAINT. As further inducement for C-CAR
to enter this Agreement, Xx. Xxxx agrees that he will not file any complaint,
petition, lawsuit, charge
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or claim against C-CAR or any of the Releasees regarding or involving any and
all claims, complaints, or causes of action, known or unknown, of any nature
whatsoever that have arisen or may arise from any act or omission of C-CAR or
any of its affiliated entities including, but not limited to, any act or
omission relating to Xx. Xxxx'x active employment with C-CAR or his
resignation therefrom with any local, state, or federal agency or court,
except for any such lawsuit specifically required for Xx. Xxxx'x enforcement
of his rights under this Agreement or his rights under the Plans. If Xx. Xxxx
or anyone acting on his behalf files any lawsuit, petition, complaint, or
charge, not specifically related to enforcement of this Agreement, his rights
under the Plans, or his right to COBRA continuation coverage, against C-CAR
or any of the Releasees regarding or involving Xx. Xxxx'x active employment
with C-CAR, Xx. Xxxx will immediately request such agency or court to
withdraw from the matter and dismiss such action, and, subject to the ten-day
opportunity to obtain the withdrawal or dismissal thereof as set forth in the
following sentence, Xx. Xxxx will reimburse C-CAR and the Releasees for any
and all costs, including attorneys' fees, incurred as a result of such
complaint, petition, lawsuit, or charge. In the event any such lawsuit,
petition, complaint, or charge is filed against C-CAR or any of the
Releasees, Xx. Xxxx shall have ten days after receipt of written notice from
C-CAR of such filing, in which to obtain the withdrawal or dismissal thereof
before he shall become liable to C-CAR or the Releasees for reimbursement as
set forth above.
8. NO ADMISSION BY C-CAR. This Agreement shall not in any way be
construed as an admission by C-CAR of any illegal act or violation of any
federal, state, or local statute, law, ordinance, or any right whatsoever
against Xx. Xxxx or any other person. Further, C-CAR specifically disclaims any
such illegal act or violation against Xx. Xxxx or any other person.
9. CONFIDENTIALITY AGREEMENT. The parties hereto agree that (a)
except as provided for herein, or as may be required by law or judicial process,
they will keep the terms, amount, and fact of this Agreement completely
confidential, and (b) they will not make any public disparaging statements
about the other to any third person or party.
10. REMEDIES FOR BREACH. The parties hereto agree that if any party
breaches this Agreement, the breaching party must reimburse the non-breaching
party for any and all loss, cost, damage, or expense, including, without
limitation, attorneys' fees arising out of any such breach of this Agreement.
In addition, any breach of this Agreement will entitle the non-breaching party
to seek injunctive relief and to recover any actual damages incurred as a result
of such breach.
11. NO RELIANCE ON REPRESENTATIONS BY C-CAR. Xx. Xxxx represents and
acknowledges that in executing this Agreement, he does not rely and has not
relied upon any prior representation made by C-CAR, the Releasees or any of
their employees, officers, agents, representatives, or attorneys concerning the
subject matter of this Agreement.
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12. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of Xx. Xxxx and C-CAR, and their heirs, third party
beneficiaries, administrators, representatives, executors, successors, and
assigns.
13. GOVERNING LAW AND CHOICE OF VENUE. This Agreement is made within
the State of Texas and shall, in all respects, be interpreted, enforced, and
governed in accordance with the law of the State of Texas, and shall, in all
cases, be construed as a whole, according to its fair meaning, and not strictly
for or against a party hereto. C-CAR and Xx. Xxxx agree that any disputes
between them or their heirs, third party beneficiaries, administrators,
representatives, executors, successors, and assigns arising out of this
Agreement, on any subject covered by this Agreement and which results in
litigation, shall be adjudicated, as is appropriate, in either a United States
District Court for the District of Texas encompassing Potter County, Texas or a
Texas State District Court within Potter County, Texas.
14. SEVERABILITY PROVISION. Should any provision of this Agreement
be declared to be or determined to be illegal or invalid, the validity of the
remaining parts of this Agreement will not be affected. Moreover, if any one or
more of the provisions of this Agreement shall be held to be excessively broad
as to duration, activity, or subject, such provision(s) shall be construed by
limiting and reducing them so as to be enforceable to the maximum extent allowed
by applicable law.
15. REPRESENTATION OF XX. XXXX. By Xx. Xxxx'x signature below, he
represents and confirms that he: (a) has read this Agreement carefully and
completely; (b) has been advised to consult with legal and financial counsel
concerning this Agreement, has had ample opportunity to do so and has, in fact,
either done so or decided, solely of his own volition, not to do so; (c)
understands all of the provisions contained in this Agreement; and (d) executes
this Agreement voluntarily and of his own free will.
SIGNED in Amarillo, Texas on this 20th day of June, 1997.
/s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx.
CROSS-CONTINENT AUTO RETAILERS, INC.
By /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Chairman & CEO
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