Exhibit 10.59
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into on this
23rd day of March, 1998. The parties to this Agreement are CROSS-CONTINENT AUTO
RETAILERS, INC., a Delaware corporation (the "Company") and XXXXX X. XXXXXX
("Xxxxxx").
RECITALS
X. Xxxxxx has been employed by the Company as the Chief Financial Officer
of the Company under that certain Employment Contract (the "Contract") dated
February 21, 1997, by and between the Company and Xxxxxx.
B. As part of the restructuring of the Company, Xxxxxx'x employment
with the Company has been terminated.
C. The Company and Xxxxxx do not anticipate that there will be any
dispute between them or legal claims arising out of Xxxxxx'x termination from
the Company, but nevertheless desire to (1) set forth the terms upon which
Xxxxxx'x employment with the Company has been terminated, and (2) settle fully
and finally any and all differences, causes of action, claims, or disputes that
might otherwise arise out of Xxxxxx'x employment with the Company.
AGREEMENT
IN CONSIDERATION OF THE MUTUAL AGREEMENTS CONTAINED HEREIN, THE COMPANY AND
XXXXXX AGREE AS FOLLOWS:
1. TERMINATION OF EMPLOYMENT. The Contract and Xxxxxx'x employment with
the Company shall be terminated effective as of March 31, 1998.
2. SETTLEMENT PAYMENT. If Xxxxxx does not revoke this Agreement in
accordance with the provisions of paragraph thirteen (13) hereof, the Company
shall pay Xxxxxx a cash settlement in the amount of $606,550 on March 31, 1998.
3. CANCELLATION OF PAR VALUE STOCK OPTION. If Xxxxxx does not revoke
this Agreement in accordance with the provisions of paragraph thirteen (13)
hereof, the Par Value Stock Option (as defined in the Contract) shall be
cancelled effective March 31, 1998.
4. VESTING OF FAIR MARKET VALUE STOCK OPTION AND AUGUST 1, 1997 OPTION.
If Xxxxxx does not revoke this Agreement in accordance with the provisions of
paragraph thirteen (13) hereof, the Fair Market Value Stock Option (as defined
in the Contract) and the option to acquire 21,860 shares of common stock of the
Company that was granted to Xxxxxx on August 1, 1997, shall each continue in
accordance with the terms and provisions of the respective stock option
agreements, as amended, except that the options shall be 100% vested effective
as of March 31, 1998.
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5. CONFIDENTIALITY. Each party to this Agreement agrees to keep the
facts and terms of this Agreement in strict confidence, unless disclosure is
required by law or court order.
6. RELEASES. (a) In consideration of the promises contained herein, and
as a material inducement to the Company to enter into this Agreement, Xxxxxx
hereby irrevocably and unconditionally releases, acquits, and forever discharges
the Company and its agents, assigns, directors, officers, employees,
representatives, attorneys, subsidiaries, affiliates and all persons acting by,
through, under, or in concert with any of them (hereinafter "the releasees"),
from any and all claims, causes of action, demands or liabilities whatsoever,
whether known or unknown or suspected to exist by Xxxxxx which he ever had or
may now have against the releasees, or any of them, including, without
limitation, any claims, causes of action, demands, or liabilities in connection
with the termination of Xxxxxx'x employment with the Company. This Agreement
expressly covers, but is not limited to, any claims that Xxxxxx may have raised
under any state or federal law prohibiting discrimination in employment on the
basis of age, gender, disability, race, national origin or on any other basis
prohibited by law, including claims arising under Title VII of the Civil Rights
Act of 1964, Section 21.051 of the Texas Labor Code and the Americans With
Disabilities Act.
In addition and in consideration of the agreements contained in this
Agreement, Xxxxxx hereby waives, releases and forever discharges, and agrees
that he will not in any manner institute, prosecute or pursue, any complaint,
claim, charge, demand, suit, whether in law or in equity, which asserts or could
assert under common law or any statute, rule or otherwise any claim or claims
under the Federal Age Discrimination in Employment Act against any one or all of
the releasees with respect to any event, matter, claim, damage, or injury,
whether known or unknown, arising out of his employment and termination of
employment with the Company or the execution of this Agreement.
(b) In consideration of the promises contained herein, and as a material
inducement to Xxxxxx to enter into this Agreement, the Company hereby
irrevocably and unconditionally releases, acquits, and forever discharges
Xxxxxx and his heirs, executors, and administrators (hereinafter the "released
parties") from any and all claims, causes of action, demands, or liabilities
whatsoever, whether known or unknown, or suspected to exist by the Company,
which it ever had or may have against the released parties, or any of them.
7. COBRA NOTICE. Xxxxxx hereby acknowledges that the Company has advised
him that pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended (COBRA) he and/or his qualified beneficiaries have the right to
elect continued coverage under the Company's group health plan at their own
expense. Such election must be made no later than sixty (60) days after the
effective date of his termination, which is the "qualifying event" for purposes
of the COBRA coverage, or the date they received notice of their COBRA rights
whichever is later.
8. MEDICAL INSURANCE. If Xxxxxx does not revoke this Agreement in
accordance with the provisions of paragraph thirteen (13) hereof, the Company
shall continue to cover those members of his immediate family (other than
Xxxxxx) who are his qualified beneficiaries for purposes of COBRA continuation
coverage under the Company's group health plan through April, 1998. Xxxxxx
shall reimburse the Company for the premiums for such coverage. No coverage
shall be provided by the Company thereafter unless they elect and are qualified
to purchase the COBRA continuation
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coverage referenced in paragraph seven (7) above. For purposes of this
paragraph, "qualified beneficiary" means Xxxxxx'x spouse and his dependent
children, as defined by the Company's group health plan, on the date of his
termination.
Further, if Xxxxxx has not revoked this Agreement in accordance with the
provisions of paragraph thirteen (13) hereof and does not elect COBRA coverage
for himself, the Company shall continue to cover Xxxxxx under the Company's
group health plan from April 1, 1998 until the earlier of (a) the date Xxxxxx is
employed by another employer and covered by its group health plan or medical
insurance or (b) March 31, 2000. The Company shall pay the premiums for such
coverage.
9. NO ADMISSION OF FAULT ON BEHALF OF THE COMPANY. This Agreement shall
not in any way be construed as an admission by the Company, its subsidiaries,
agents, employees, directors, officers, representatives, or assigns of any act
of wrong doing whatsoever against Xxxxxx or any other person.
10. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement
between the parties hereto and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof.
11. ACKNOWLEDGMENT OF RIGHT TO SEEK COUNSEL. Xxxxxx acknowledges that he
has a complete and unequivocal right to seek legal advice and/or representation
from an attorney of his choice regarding the matter set forth in this Agreement.
Xxxxxx acknowledges that he has either consulted with counsel and is satisfied
with the representation he received with respect to this Agreement, or he
acknowledges that he has knowingly and voluntarily waived his right to seek
legal representation. The Company agrees to pay the reasonable legal fees (not
to exceed $300.00) incurred by Xxxxxx to have this Agreement reviewed by an
attorney.
12. CHOICE OF FORUM AND VENUE. The terms of this Agreement shall be
construed in accordance with the laws of the State of Texas. Any proceeding
brought to enforce or interpret this Agreement shall be brought in a court of
competent jurisdiction for Potter County, Texas.
13. TIME TO SIGN AND REVOKE AGREEMENT. In accordance with the Older
Workers Benefit Protection Act (29 U.S.C. Section 626(f)(1)), Xxxxxx
acknowledges and agrees that he has had twenty-one (21) calendar days from the
date he first received this Agreement to obtain the counsel and advice from his
legal representative with respect to this Agreement.
Xxxxxx understands that for a period of seven (7) calendar days after he
executes this Agreement he has the right to revoke it and this Agreement shall
not become effective and enforceable until after the passage of this seven day
period without Xxxxxx having revoked it. This Agreement may not be revoked
after the seven day period. XXXXXX UNDERSTANDS AND AGREES THAT HE WILL BE
ENTITLED TO THE CONSIDERATION PROVIDED IN THIS AGREEMENT ONLY IF HE SIGNS AND
RETURNS AN EXECUTED ORIGINAL COPY OF THE STATEMENT OF NON-REVOCATION ATTACHED
HERETO CONFIRMING IN WRITING THAT HE DID NOT REVOKE THIS AGREEMENT.
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14. CONSULTING AGREEMENT. Xxxxxx agrees to provide such consulting
services as the Company may reasonably request after receipt of reasonable
notice from the Company, provided that Xxxxxx shall not be obligated to provide
more than 400 hours during the period from April 1, 1998, to March 31, 1999, or
more than 400 hours during the period from April 1, 1999, to March 31, 2000. If
Xxxxxx fails or refuses to provide any consulting services reasonably requested
by the Company within a reasonable time period after such consulting services
are requested for any reason other than death, disability or mental
incompetence, Xxxxxx shall pay the Company $540 for each consulting hour Xxxxxx
fails or refuses to provide. If the Company does not request more than 400
hours of consulting services during either of the above described twelve month
periods, Xxxxxx shall not be obligated to pay the Company for the hours not
requested. The Company shall reimburse Xxxxxx for all reasonable expenses
incurred by Xxxxxx in providing the consulting services that are reasonably
requested.
15. ACKNOWLEDGMENT BY XXXXXX. BY SIGNING BELOW, XXXXXX ACKNOWLEDGES THAT
HE HAS READ AND CAREFULLY CONSIDERED THIS AGREEMENT AND UNDERSTANDS THAT IT IS A
FULL RELEASE OF ALL CLAIMS KNOWN OR UNKNOWN. XXXXXX ACKNOWLEDGES AND AFFIRMS
THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS CONCERNING THIS AGREEMENT AND
HE HAS HAD HIS QUESTIONS ANSWERED TO HIS COMPLETE SATISFACTION. XXXXXX
ACKNOWLEDGES THAT HE IS SIGNING THIS AGREEMENT FREELY AND VOLUNTARILY.
THE COMPANY: CROSS-CONTINENT AUTO RETAILERS, INC.
By:_________________________________________
XXXX XXXXXXXXX, Chairman and Chief Executive Officer
XXXXXX: ________________________________________________
XXXXX X. XXXXXX
THE STATE OF TEXAS Section
Section
COUNTY OF POTTER Section
This instrument was acknowledged before me on this ______ day of March,
1998, by XXXXX X. XXXXXX.
________________________________________________
Notary Public, State of Texas
THE STATE OF TEXAS Section
Section
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COUNTY OF POTTER Section
This instrument was acknowledged before me on this ______ day of March,
1998, by XXXX XXXXXXXXX, Chairman and Chief Executive Officer of CROSS-CONTINENT
AUTO RETAILERS, INC., a Delaware corporation, on behalf of said corporation.
________________________________________________
Notary Public, State of Texas
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STATEMENT OF NON-REVOCATION
By signing below, I hereby verify that I have chosen not to revoke my
agreement to or execution of the "Settlement Agreement and Release" dated the
23rd day of March, 1998, between myself and Cross-Continent Auto Retailers, Inc.
My signature below confirms my continued agreement to the terms of that
Agreement in all its particulars including my release and waiver of any and all
claims relating to my employment and termination of employment with
Cross-Continent Auto Retailers, Inc.
______________________________________ ____________________
Xxxxx X. Xxxxxx Date
ACCEPTED BY:_____________________________ ____________________
Date
Print Name & Title:______________________
NOTICE: DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL EIGHT (8) DAYS AFTER
YOU SIGN THE "SETTLEMENT AGREEMENT AND RELEASE".
