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Exhibit (10)(m)
AGREEMENT
This Agreement is entered into this 9th day of March, 1998 between
Xxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx") and National Auto Credit, Inc., a Delaware
corporation ("NAC"). Xxxxxxxxxx has been employed by NAC, most recently as its
President and Chief Executive Officer, and has been a member of the Board of
Directors of NAC. Xxxxxxxxxx and NAC have both determined that it is in their
respective best interests to discontinue both the employment relationship
between them and Xxxxxxxxxx'x membership on the Board of Directors of NAC upon
the terms and subject to the conditions set forth in this Agreement.
Now therefore, for and in consideration of the premises and intending
to be legally bound, Xxxxxxxxxx and NAC agree as follows:
1. Termination of Employment and Board Membership. Effective
immediately upon the execution of this Agreement by both parties, Xxxxxxxxxx
hereby resigns (a) as an employee of and as President and Chief Executive
Officer of NAC and as an employee and officer of any and all subsidiaries of
NAC, and (b) as a member of the Board of Directors of NAC and of any and all
subsidiaries of NAC. From and after the effectiveness of these resignations,
Xxxxxxxxxx shall not be an employee, officer, or director of NAC or any
subsidiary and shall not be required to perform any further services for or on
behalf of NAC or any subsidiary.
2. Consideration. As consideration for the execution of this Agreement
by Xxxxxxxxxx and his resignation as set forth in Section 1, NAC shall pay and
provide to Xxxxxxxxxx the following amounts and benefits:
2.1 Severance Payment. NAC shall pay to Xxxxxxxxxx his salary through
March 14, 1998 by making the payment previously scheduled to be made on
that date. In addition, NAC shall pay to Xxxxxxxxxx the sum of $500,000
in equal monthly installments of $20,833.33 commencing with a first
installment on April 1, 1998 and continuing through the 24th
installment on March 1, 2000.
2.2 Health and Life Insurance Coverage Continuation. NAC shall provide
to Xxxxxxxxxx, at NAC's sole cost and expense, health and life
insurance coverage through March 9, 2000 with coverage and benefits
(including family health coverage and benefits) at least as favorable
as the coverage and benefits being provided to Xxxxxxxxxx immediately
before his resignation.
2.3 Automobile. NAC shall provide Xxxxxxxxxx with the use of an
automobile through March 9, 2000 with all costs associated with the
operation and use of the automobile borne by NAC, including, without
limitation, all costs of registration, insurance, repairs, maintenance,
fuel, and oil. The automobile so provided shall be the same automobile
provided by NAC to Xxxxxxxxxx immediately before his resignation except
that, if that automobile must be replaced (due, for example, to
mechanical failure or accident), the replacement automobile shall be a
new automobile of the same make and model.
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2.4 Club Dues. NAC shall pay all dues and assessments related to
Xxxxxxxxxx'x membership in Lake Forest Country Club through March 9,
2000.
If Xxxxxxxxxx dies before March 9, 2000, (a) any installments of the $500,000
provided for In Section 2.1 that had not been made before the date of his death
shall be made to his estate, (b) the health insurance coverage referred to in
Section 2.2 shall be continued to his survivors through March 9, 2000, (c) the
use of the automobile referred to in Section 2.3 shall be made available to his
survivors through March 9, 2000, and (d) the dues and assessments referred to in
Section 2.4 shall continue to be paid through March 9, 2000.
3. Indemnification. NAC shall indemnify Xxxxxxxxxx, to the fullest
extent permitted or authorized by the Delaware General Corporation Law as it may
from time to time be amended, if Xxxxxxxxxx is made or threatened to be made a
party to any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including, without limitation, the pending
Securities and Exchange Commission investigation and any subsequent enforcement
actions and the pending shareholder litigation), by reason of the fact that
Xxxxxxxxxx is or was a director, officer, or employee of NAC or any subsidiary
of NAC. The indemnification provided by this Section 3 shall not be deemed
exclusive of any other rights to which Xxxxxxxxxx may be entitled under the
articles of incorporation or the by-laws of NAC or of any subsidiary (which
rights to indemnification under any such articles and/or by-laws NAC shall
provide to Xxxxxxxxxx to the fullest extent possible) or any agreement, vote of
shareho1ders or disinterested directors, or otherwise, both as to action in
Xxxxxxxxxx'x official capacity and as to action in another capacity while
holding such office, and shall continue as to Xxxxxxxxxx after Xxxxxxxxxx has
ceased to be a director, officer, or employee and shall inure to the benefit of
the heirs, executors, and administrators of Xxxxxxxxxx.
4. Cooperation in Defense. NAC shall cooperate fully with Xxxxxxxxxx,
at NAC's sole cost and expense, in Xxxxxxxxxx'x defense of any threatened,
pending, or completed action, suit, or proceeding of the type described in
Section 3. Xxxxxxxxxx shall cooperate fully with NAC in NAC's defense of any
threatened, pending, or completed action, suit, or proceeding of the type
described in Section 3.
5. Certain Expenses. Expenses (including attorney's fees) incurred by
Xxxxxxxxxx in defending any action, suit, or proceeding commenced or threatened
against Xxxxxxxxxx for any action or failure to act as an employee, officer, or
director of NAC or a subsidiary (including any of the type described in Section
3) shall be paid by NAC, as they are incurred, in advance of final disposition
of the action, suit, or proceeding, subject only to the undertaking regarding
potential repayment of such expenses that Xxxxxxxxxx has heretofore provided to
NAC. The obligation of NAC to advance expenses provided for in this Section 5
shall not be deemed exclusive of any other rights to which Xxxxxxxxxx may be
entitled under the articles of incorporation or the by-laws of NAC (which
obligation under any such articles and/or by-laws NAC shall fully honor) or any
agreement, vote of shareholders or disinterested directors, or otherwise.
6. No Set-Off; No Obligation to Seek Other Employment or to Otherwise
Mitigate. Except as provided in Section 7 with respect to noncompetition, NAC's
obligation to make the
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payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense, or other claim whatsoever that NAC or anyone claiming by or through
NAC may have against Xxxxxxxxxx. Xxxxxxxxxx shall not be required to mitigate
the amount of any payment provided for under this Agreement by seeking other
employment or otherwise. The amount of any payment provided for under this
Agreement shall not be reduced by any compensation or benefits earned by
Xxxxxxxxxx as the result of employment by another employer or otherwise after
Xxxxxxxxxx'x resignation.
7. Noncompetition. If Xxxxxxxxxx commences employment with a third
party in the subprime auto finance business in competition with NAC before March
1, 2000, NAC's obligation to continue to pay installments to Xxxxxxxxxx pursuant
to Section 2.1 shall terminate as of the date Xxxxxxxxxx so commences
employment. Xxxxxxxxxx shall not in any event be obligated to repay to NAC any
installments paid by NAC to Xxxxxxxxxx at any time before he so commences
employment with such a third party.
8. Validity. The Invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
9. Miscellaneous. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in a writing signed by Xxxxxxxxxx and NAC. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
has been made by either party which is not set forth expressly in this
Agreement.
IN WITNESS WHEREOF, NAC and Xxxxxxxxxx have executed this Agreement,
NAC by its duly authorized Chairman of the Board, on the date first written
above.
NATIONAL AUTO CREDIT, INC.
BY /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx, Chairman of the Board
/s/ Xxxxxx X. Xxxxxxxxxx
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XXXXXX X. XXXXXXXXXX
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