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EXHIBIT 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated
and effective as of the 1st day of June, 1998, by and between National Auto
Finance Company, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxx ("Xxxxx"), residing at 00000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx.
WITNESSETH
WHEREAS, the Company is engaged in the business of non-prime specialty
consumer finance, including, without limitation, the purchasing, originating,
financing, securitizing, collecting and servicing of motor vehicle retail
installment sales contracts, and intends to develop service bureau and service
center businesses (collectively, the "Business"); and
WHEREAS, Auto Credit Clearinghouse L.P., a Delaware limited partnership
("ACCH") and Magro entered into an employment agreement dated and effective as
of July 1, 1996 (the "Original Agreement"); and
WHEREAS, ACCH was dissolved as a limited partnership and all of the
liabilities of ACCH (including any liabilities under the Original Agreement)
were transferred to, and assumed by, the Company; and
WHEREAS, the Company and Magro amended certain terms of the Original
Agreement by entering into that certain First Amendment to Employment Agreement
effective as of May 27, 1997 (the "First Amendment"); and
WHEREAS, the Company and Magro desire to amend and restate the Original
Agreement and the First Amendment as set forth herein and to have this Agreement
supersede the Original Agreement and the First Amendment in their entirety; and
WHEREAS, the Company desires to retain the services of Magro in the
capacity of Executive Vice President and Chief Operating Officer of the Company,
and Magro desires to provide such services in such capacity to the Company, on
the terms and subject to the conditions set forth in this Agreement.
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants, agreements and obligations set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Employment and Term. The Company hereby employs Magro, and Magro
hereby accepts employment by the Company, in the capacity and on the terms and
subject to the conditions set forth in this Agreement, for the period of time
commencing on June 1, 1998, and ending on May 31, 2001, unless this Agreement is
sooner terminated as provided herein (the "Term").
2. Duties. During the Term, Magro shall, in his capacity as the
Company's Executive Vice President and Chief Operating Officer, serve the
Company faithfully and to the best of his ability and devote his full business
time to the Business of the Company, subject to the provisions of Section 3
herein, as (i) is necessary to carry out the duties and responsibilities
customarily incident to such a position, including, without limitation, the
management of Company's operations and the supervision of other executive
officers and employees of the Company who are subordinate to Magro, and (ii) may
be reasonably assigned to him from time to time by the Board of Directors or the
Chairman, Chief Executive Officer and/or President of the Company, or by anyone
else designated by those officers or directors. Magro shall report to the Board
of Directors and to the Chairman, Chief Executive Officer and/or President, if
any, of the Company, or to anyone else designated by those directors or
officers.
3. Other Business Activities. During the Term, Magro shall not, without
the prior written consent of the Company, directly or indirectly engage in any
other business activities or pursuits, except activities in connection with
charitable or civic activities, personal investments, service as an executor,
trustee or in other similar fiduciary capacities and such other activities as
are not inconsistent with his position with the Company and do not interfere
with the performance of Magro's duties, responsibilities and obligations
pursuant to this Agreement.
4. Compensation.
(a) Salary. During the Term, the Company shall pay Magro, and Magro
hereby agrees to accept, as compensation for all services rendered and for
Magro's covenant not to compete as provided for in Section 9 hereof, a base
salary (the "Base Salary") at an annual rate as follows:
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(i) $180,000 for the period June 1, 1998 through May 31, 1999;
(ii) no less than $192,600 for the period June 1, 1999 through May 31,
2000; and
(iii) no less than $206,082 for the period June 1, 2000 through May
31, 2001.
The sole and final determination of whether Magro will receive an increase of
his Base Salary for the periods June 1, 1999 through May 31, 2000 and June 1,
2000 through May 31, 2001 in excess of the minimum seven (7) percent annual
increase will be made by the Compensation Committee of the Company's Board of
Directors or equivalent committee of any successor entity or parent
organization, pursuant to senior executive compensation plans adopted by such
committee. Payment of the Base Salary shall be made in the same manner as the
Company routinely pays its other executive employees. All applicable income,
social security and other taxes and charges which are required by law to be
withheld by the Company or which are requested to be withheld by Magro, shall be
deducted from the Base Salary in accordance with the Company's normal payroll
practice for its salaried executives from time to time in effect.
(b) Incentive Bonus. Magro shall be eligible for an incentive bonus
("Incentive Bonus") for each of calendar years 1998, 1999 and 2000. For calendar
year 1998, Magro shall be entitled to an Incentive Bonus of $90,000, which is
equal to 50% of Magro's 1998 Base Salary. Such Incentive Bonus earned for
calendar year 1998 shall be paid on or before March 31, 1999. For calendar years
1999 and 2000, the Compensation Committee of the Company's Board of Directors or
equivalent committee of any successor entity or parent organization will adopt a
bonus program designed to allow Magro the opportunity to earn an Incentive Bonus
equal to at least 50% of Magro's annual Base Salary. There is, however, no
guaranteed Incentive Bonus for 1999 or 2000. Any Incentive Bonus earned for
calendar years 1999 or 2000 shall be paid on or before March 31 of the next
succeeding year.
5. Stock Option Plan. Magro shall be entitled to participate in the
Company's 1996 Share Incentive Plan (as the same may be amended or modified from
time to time), and any other plans implemented by the Company or any successor
entity or parent organization (within the meaning of Rule 12 b-2 under the
Securities Exchange Act of 1934) granting shares of capital stock, options or
warrants to purchase shares of capital stock or other forms of equity or equity
derivative securities, of the Company or any successor entity or parent
organization, as such grants may be made from time to time by the Board of
Directors or Compensation Committee governing such plan. While Magro shall be
eligible to participate in such stock option plan(s), the sole and final
determination of whether any grants will be made or the amount of any such grant
will be made by the Compensation Committee of the Company's Board of Directors
or equivalent committee of any successor entity or parent organization.
Notwithstanding anything set forth to the contrary herein, the Compensation
Committee of the Board of Directors of the
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Company did approve on June 29, 1998 granting Magro an option to purchase shares
of the common stock of the Company equal to 2% of the outstanding common stock
of the Company on a fully-diluted basis, subject to the conditions and on the
terms set forth in the grant letter to be sent by the Company to Magro.
6. Benefits and Expenses.
(a) Benefits. Magro shall be entitled to participate in such benefit
plans and programs, including pension, hospitalization, medical and dental
insurance, life and disability insurance, and vacation (collectively,
"Benefits"), as are made available to the executive employees of the Company
from time to time during the Term.
(b) Expenses. Magro shall be reimbursed by the Company for all
reasonable out-of-pocket business-related expenses, including travel and
entertainment expenses, incurred by him in furtherance of the performance of his
duties and responsibilities hereunder upon submission to the Company of receipts
supporting such expenses.
(c) Automobile. The Company will provide Magro with a car allowance of
Six Hundred Dollars ($600.00) gross per month ("Auto Allowance") and reimburse
Magro for gasoline and normal maintenance expenses for his automobile upon
submission to the Company of receipts supporting such expenses.
7. Confidentiality.
(a) Non-Disclosure. Magro recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) of the Company is a valuable,
special and unique asset of the Company. As a result, both during the Term and
thereafter, Magro shall not, without the prior written consent of the Company,
for any reason, either directly or indirectly, divulge to any third party or use
for Magro's own benefit, or for any purpose other than the exclusive benefit of
the Company, any and all confidential, proprietary, business or technical
information, or trade secrets of the Company which are revealed, obtained or
developed in the course of Magro's employment with the Company (the "Proprietary
Information"). Such Proprietary Information shall include, but shall not be
limited to, business, financial, marketing and development plans, models and
efforts, cost information, pricing information, marketing methods, collection
and servicing methods, procedures and policies, identities of the Company's
dealers or obligors, the Company's relationships with or potential relationships
with its dealers, and any other confidential, proprietary, business or technical
information relating to the Business of the Company or trade secrets of the
Company; provided, however, that nothing herein contained shall restrict Magro's
ability to make such disclosures during the course of his employment as may be
necessary or appropriate to the effective and efficient discharge of his duties
or as such
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disclosures may be required by law; and further provided, that nothing herein
contained shall restrict Magro from divulging or using for his own benefit or
for any other purpose any Proprietary Information which is readily available to
the general public so long as such information did not become available to the
general public as a direct or indirect result of Magro's breach of this Section
7.
(b) Inventions, Designs and Product Developments. All inventions,
discoveries, concepts, improvements, formulas, procedures, policies, processes,
devices, methods, innovations, designs, ideas and product developments
(collectively, "Developments"), developed or conceived by Magro, solely or
jointly with others, whether or not patentable or copyrightable, at any time
during the Term or within one (1) year after the termination of this Agreement
and which relate to the actual or planned Business activities of the Company,
its divisions, subsidiaries, sister organizations, or parent organization, and
all of Magro's right, title and interest therein, shall be the exclusive
property of the Company. Magro hereby assigns, transfers and conveys to the
Company all of his right, title and interest in and to any and all such
Developments. Magro shall disclose fully, as soon as practicable and in writing,
all Developments to the Chairman, Chief Executive Officer, President and/or
Chief Operating Officer of the Company or to anyone else designated by those
officers. At any time and from time to time, upon the request of the Company,
Magro shall execute and deliver to the Company any and all instruments,
documents and papers, give evidence and do any and all other acts which, in the
opinion of counsel for the Company, are or may be necessary or desirable to
document such transfer or to enable the Company to file and prosecute
applications for and to acquire, maintain and enforce any and all patents,
trademarks, registrations or copyrights under United States or foreign law with
respect to any such Developments or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright. The
Company will, at its expense, be responsible for the preparation of any such
instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse Magro for all reasonable expenses Magro incurs in
connection therewith upon submission to the Company of invoices with respect
thereto.
8. Property of Company. All Proprietary Information and Developments
shall be and remain the sole property of the Company. During the Term of this
Agreement, Magro shall not remove from the Company's offices or premises any
documents, records, notebooks, files, correspondence, reports, memoranda or
similar materials containing information of the type identified in Section 7
hereof, or other materials or property of any kind unless necessary or
appropriate in accordance with his duties and responsibilities and, in the event
that such materials or property are removed, all of the foregoing shall be
returned to their proper files or places of
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safekeeping as promptly as possible after the removal shall serve its specific
purpose. Magro shall not make, retain, remove and/or distribute any copies of
any of the foregoing for any reason whatsoever except as may be necessary in the
discharge of his assigned duties and shall not divulge to any third person the
nature of and/or the contents of any of the foregoing or of any other oral or
written information to which he may have access or with which for any reason he
may become familiar, except as disclosure shall be necessary in the performance
of his duties; and upon the termination of his employment with the Company, he
shall leave with or return to the Company, all originals and copies of the
foregoing then in his possession, whether prepared by Magro or by others.
9. Covenant Not to Compete.
(a) Magro shall not, during the Term, anywhere within the
United States of America or in any other location where the activities of Magro
would, in the judgment of the Board of Directors of the Company or any successor
entity or parent organization, be competitive with the Business of the Company,
its divisions, subsidiaries, sister organizations, or parent organization, do
any of the following, directly or indirectly, without the prior written consent
of the Company:
(1) solicit, either directly or indirectly, business from any
dealer, customer, obligor, financial institution or company with whom the
Company shall have dealt at any time;
(2) influence or attempt to influence any dealer, customer,
obligor, financial institution or company with whom the Company shall have dealt
at any time or potential dealer, financial partner, company, customer or obligor
of the Company to terminate or modify any written or oral agreement, arrangement
or course of dealing with the Company; or
(3) influence or attempt to influence any person to (i) terminate
or modify his employment, consulting, agency, distributorship or other
arrangement with the Company, its divisions, subsidiaries, sister organizations,
or parent organization, or (ii) employ or retain, or arrange to have any other
person or entity employ or retain, any person who has been employed or retained
by the Company, its divisions, subsidiaries, sister organizations, or parent as
an employee, salesman, consultant or agent of the Company at any time during the
one (1) year period immediately preceding the effective date of Magro's
termination if the actions enumerated in clauses (i) and (ii) would negatively
affect the Business and/or operations of the Company, its divisions,
subsidiaries, sister organizations, or parent organization for a period of two
(2) years following the effective date of Magro's termination.
(b) The Company shall have the right, but not the obligation,
to require Magro, for a six month period of time following the termination of
Magro's employment (for whatever
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reason), anywhere within the United States of America or in any other location
where the activities of Magro would, in the judgment of the Board of Directors
of the Company or any successor entity or parent organization, be competitive
with the Business of the Company, its divisions, subsidiaries, sister
organizations, or parent organization, not to engage in the conduct proscribed
by Section 9(a)(1), (2) and (3) by payment to Magro, over the extended covenant
period, of fifty percent (50%) of the amount paid to Magro (as reflected in the
Company's payroll records) by the Company in the full calendar year immediately
preceding Magro's termination. Any payments required by this Section 9(b) shall
be paid by check in the same time intervals as the Company routinely pays its
executive employees. Any exercise of the option shall be irrevocable.
(c) If the employment of Magro shall either expire pursuant to
Section 1 hereof, or shall be terminated pursuant to Section 10 of this
Agreement, Magro shall not, for a two (2) year period of time following such
termination, employ or retain, or arrange to have any other person or entity
employ or retain, any person who has been employed or retained by the Company,
its divisions, subsidiaries, sister organizations, or parent organization any
time during the one (1) year period immediately preceding the effective date of
Magro's termination.
10. Termination. This Agreement may be terminated during the Term
upon the occurrence of any of the events described in this Section 10. Upon
termination, Magro shall be entitled to such compensation and benefits as are
described in this Section 10.
10.1 Termination for Disability.
(a) In the event of the disability of Magro such that Magro is
unable to perform his duties and responsibilities hereunder to the full extent
required by this Agreement by reason of illness, injury or incapacity for a
period of more than one hundred twenty (120) consecutive days or for a
cumulative period of one hundred twenty (120) days within a twelve (12) month
period ("Disability" or "Disabled"), Magro's employment under this Agreement may
be terminated by the Company.
(b) In the event of a termination of Magro's employment
pursuant to Section 10.1(a), the Company shall be obligated to pay Magro (i) all
accrued but unpaid (as of the date of such termination) Base Salary, Benefits
and Auto Allowance, and to reimburse Magro for all unreimbursed out-of-pocket
business-related expenses and (ii) an amount equal to Magro's Base Salary for a
three (3) month period (at the rate then in effect at the time of such
termination). Except as specifically set forth in this Section 10.1(b), the
Company shall have no liability or obligation to Magro for compensation or
benefits hereunder by reason of such termination.
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(c) For purposes of this Section 10.1, except as hereinafter
provided, the determination as to whether Magro is Disabled shall be made by a
licensed physician selected by Magro and shall be based upon a full physical
examination and good faith opinion by such physician. In the event that the
Board of Directors of the Company (or any successor entity or parent
organization) disagrees with such physician's conclusion, the Board of Directors
may require that Magro submit to a full physical examination by another licensed
physician selected by Magro and approved by the Board of Directors. If the two
opinions shall be inconsistent, a third opinion shall be obtained after full
physical examination by a third licensed physician selected by Magro and
approved by the Board of Directors. The majority of the three opinions shall be
conclusive.
10.2 Termination by Death. In the event that Magro dies during
the Term, Magro's employment shall be terminated thereby and the Company shall
pay to Magro's executors, legal representatives or administrators an amount
equal to all accrued but unpaid (as of the date of such termination) Base
Salary, Benefits and Auto Allowance and shall reimburse Magro for all
unreimbursed out-of-pocket business-related expenses, all of which payments
shall be paid within thirty (30) days of the date of such death. Except as
specifically set forth in this Section 10.2, the Company shall have no liability
or obligation hereunder to Magro's executors, legal representatives,
administrators, heirs or assigns or to any other person claiming under or
through him by reason of Magro's death.
10.3 Termination for Cause.
(a) The Company may terminate Magro's employment under this
Agreement at any time for "Cause" upon written notice to Magro, which
termination shall become effective on the date specified in such notice. For
purposes of this Agreement, "Cause" (as hereinafter defined) shall mean: (i) any
material breach by Magro of any of his obligations under Sections 7, 8 or 9 of
this Agreement; (ii) failure or refusal by Magro to perform satisfactorily the
duties assigned to him pursuant to this Agreement; (iii) other conduct of Magro
involving gross disloyalty or willful misconduct with respect to the Company,
including, without limitation, fraud, embezzlement, theft or proven dishonesty
in the course of his employment, or conviction of a felony; (iv) Magro's willful
engagement in conduct materially injurious to the economic interests or
reputation of the Company; or (v) Magro's insubordination, acts of moral
turpitude or other gross misconduct.
(b) In the event of a termination of Magro's employment
pursuant to Section 10.3(a), the Company shall be obligated to pay to Magro all
accrued but unpaid (as of the date of such termination) Base Salary, Benefits
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and Auto Allowance shall then cease at the time of such termination. Except as
specifically set forth in this Section 10.3(b), the Company shall have no
liability or obligation to Magro for compensation or benefits hereunder by
reason of such termination.
10.4 Termination without Cause.
(a) The Company may terminate Magro's employment under this
Agreement without Cause upon at least sixty (60) days prior written notice
thereof to Magro, in which case this Agreement shall terminate on the date
specified in such notice.
(b) In the event of a termination of Magro's employment
pursuant to 10.4(a), the Company shall be obligated to pay to Magro all accrued
but unpaid (as of the date of such termination) Base Salary, Benefits and Auto
Allowance and to reimburse Magro for all unreimbursed out-of-pocket
business-related expenses. Magro shall also be entitled to receive an amount
equal to his Base Salary (at the rate then in effect at the time of such
termination) for a twelve (12) month period, such amount to be paid over the
applicable period at times corresponding to the Company's normal payroll periods
for executive officers as if no such termination had occurred. Except as
specifically set forth in this Section 10.4(b), the Company shall have no
liability or obligation to Magro for compensation or benefits hereunder by
reason of such termination.
10.5 Termination by Magro for Good Reason.
(a) Magro may terminate his employment under this Agreement at
any time for Good Reason (as hereinafter defined) effective upon the date
designated by Magro in his written notice of termination of employment pursuant
to this Section 10.5(a); provided, that the effective date of such termination
shall not be less than ninety (90) days after such notice is given, unless the
Board of Directors of the Company (or any successor entity or parent
organization) declares such effective date to be earlier than that designated by
Magro, which such Board shall be entitled to do (but not earlier than the date
such notice is received). For purposes of this Agreement, "Good Reason" shall
mean a material breach by the Company of its obligations under this Agreement,
including, but not limited to, the following: (i) the failure by the Company to
pay Base Salary or any other material form of compensation or material benefit
to be paid or provided to Magro hereunder, which failure is not cured by the
Company within ten (10) days after the Company's receipt of written notification
from Magro of such failure; and (ii) any material breach, not encompassed within
clause (i) of this Section 10.5(a), of the obligations of the Company under this
Agreement which breach is not cured within thirty (30) days after the Company's
receipt of written notification from Magro of such material breach.
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(b) In the event of a termination of Magro's employment for
Good Reason pursuant to Section 10.5(a), the Company shall be obligated to pay
to Magro all accrued but unpaid (as of the date of such termination) Base
Salary, Benefits and Auto Allowance and to reimburse Magro for all unreimbursed
out-of-pocket business-related expenses. Magro shall also be entitled to receive
an amount equal to his Base Salary (at the rate then in effect at the time of
such termination) for a twelve (12) month period, such amount to be paid over
the applicable period at times corresponding to the Company's normal payroll
periods for executive officers as if no such termination had occurred. Except as
specifically set forth in this Section 10.5(b), the Company shall have no
liability or obligation to Magro for compensation or benefits hereunder by
reason of such termination.
10.6 Successor Party
The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the Business and/or assets of the Company (a "Successor")
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it. If no such
agreement prior to or simultaneously with the effectiveness of any such
succession is executed and delivered to Magro, such failure shall constitute a
material breach of this Agreement. Magro agrees that the assumption by any
successor party of the duties and responsibilities of the Company under this
Agreement shall relieve the Company of any and all duties or responsibilities
under this Agreement. Moreover, such a successor party to this Agreement shall
have all rights currently afforded the Company or its Board of Directors under
this Agreement.
11. Survival of Provisions. The rights and obligations of Magro
pursuant to Sections 7, 8, 9, 10 and 14 of this Agreement shall survive the
termination of Magro's employment hereunder.
12. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the Company and Magro and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Magro nor the Company may make any assignment of this Agreement or
any interest herein, by operation of law or otherwise, without the prior written
consent of the other parties hereto, except that, without such consent, the
Company may assign this Agreement to any Successor to all or substantially all
of the Company's assets and Business or the assets and business of any of the
Company's divisions, subsidiaries, sister organizations or parent organization
by means of liquidation, dissolution,
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merger, consolidation, transfer of assets, or otherwise, provided that such
Successor assumes in writing all of the obligations of the Company under this
Agreement.
13. No Conflicting Agreements. Magro represents to the Company that (i)
Magro is not currently under contract to provide services to any other party or
entity; (ii) the execution, delivery and performance of this Agreement by Magro
will not conflict with any other agreement, except the Original Agreement or the
First Amendment, to which Magro is bound or to which Magro is a party; and (iii)
Magro is not currently bound by any form of restrictive covenant which would
restrict or limit the performance of his duties pursuant to this Agreement.
14. Employee Benefits. This Agreement shall not be construed to be in
lieu of or to the exclusion of any other rights, benefits and privileges to
which Magro may be entitled as an employee of the Company under any retirement,
pension, profit-sharing, share incentive, insurance, hospitalization or other
plans or benefits which may now be in effect or which may hereafter be adopted.
15. Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and sent by certified or registered
mail, return receipt requested, or hand delivery, addressed as follows or to
such other address as any party may from time to time duly specify by notice
given to the other party in the manner specified above:
If to Magro:
Xxxxxxx X. Xxxxx
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
If to the Company:
National Auto Finance Company, Inc.
000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
16. Entire Agreement; Amendments. This Agreement contains the entire
Agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior discussions, offer letters,
agreements, the Original Agreement, the First Amendment and understandings of
every nature between the parties hereto relating to the employment of Magro with
the Company. This Agreement may not be changed or modified, except by an
agreement in writing signed by both of the parties hereto.
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17. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
18. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Florida, without regard to
conflict of law principles.
19. Invalidity. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the validity of any other provision of this Agreement, and such
provision(s) shall be deemed modified to the extent necessary to make it
enforceable.
20. Section Headings. The section headings in this Agreement are for
convenience only. They form no part of this Agreement and shall not affect its
interpretation.
21. Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
legal holidays; provided, however, that if the final day of any time period
falls on a Saturday, Sunday or day which is a holiday in the State of Florida,
then such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
22. Specific Enforcement. Magro acknowledges that the restrictions
contained in Sections 7, 8 and 9 hereof are reasonable and necessary to protect
the legitimate interests of the Company and its affiliates and that the Company
would not have entered into this Agreement in the absence of such restrictions.
Magro also acknowledges that the nature of both his services to the Company and
the obligations undertaken by Magro in Sections 7, 8 and 9 hereof are unique and
that any breach by him of Sections 7, 8, and 9 hereof will cause continuing and
irreparable injury to the Company for which monetary damages would not be
adequate remedy. In the event of such breach by Magro, the Company shall have
the right to specific enforcement of the provisions of Sections 7, 8 and 9 of
this Agreement, or injunctive or other relief in any court, and this Agreement
shall not in any way limit remedies of law or in equity otherwise available to
the Company. In the event that the provisions of Sections 7, 8 and 9 hereof
should ever be
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adjudicated to exceed the time, geographic, or other limitations permitted by
applicable law in any jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum time, geographic, or other
limitations permitted by applicable law.
23. Arbitration. Any controversy or claim arising out of or relating to
Section 10 hereof, or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitration may be
entered into any court having jurisdiction thereof. The arbitration shall be
heard by a single Arbitrator, and shall be conducted in Jacksonville, Florida.
IN WITNESS WHEREOF, the parties hereto have executed or caused
this Agreement to become effective as of the date first above written.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
COMPANY:
NATIONAL AUTO FINANCE COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
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