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Exhibit 10.14
December 14, 2000
Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxx:
This letter confirms our agreement with respect to your separation from
National Auto Credit, Inc. ("NAC" or the "Company") and the terms and conditions
thereof.
1. As of the date hereof, (the "Separation Date"), you will have no further
job responsibilities with the Company. Your last day of effective
employment (i.e., the last day on which you are expected to report to work
and carry out assigned tasks) was November 3, 2000. As of November 3, 2000
you resigned as CEO and Chairman of NAC and as an officer of each NAC
subsidiary and affiliates. As of the Separation Date hereof you resign as a
director of NAC and each of NAC's affiliates and subsidiaries. You agree
that NAC has no obligation, contractual or otherwise, to rehire, reemploy
or recall you in the future. You further agree that you will not apply for
employment with NAC in the future.
2. You acknowledge that you have never had, and as of the Separation Date did
not have, any contract of employment or other agreement with the Company.
3. In consideration for your performance of the covenants set forth in
paragraph 6 hereof and your execution of the General Release (in the form
annexed hereto as Exhibit A) of all claims which you may have against the
Company, and upon this Letter Agreement becoming effective, you shall
receive the following payments:
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A. The sum of $300,000 paid in thirteen (13) equal consecutive
monthly payments, payable on the 5th business day of each month commencing
January 8, 2000, and
B. Reimbursement of your final expense reimbursement request
set forth in Exhibit C hereto upon the expiration of the waiting periods set
forth in Paragraph 11 hereof; and
C. Reimbursement or direct payment of the reasonable
attorney's fees charged by Duvin, Xxxx & Xxxxxx, LPA in connection with
negotiating and reviewing this agreement on your behalf, not to exceed $10,000,
payable upon presentation of an invoice.
The sum of $300,000 shall be deposited with a mutually agreeable escrow
agent who shall disburse the sums called for in paragraph 3 (A) pursuant to the
terms of this agreement. The parties shall execute an escrow agreement as soon
as practicable. The parties agree that Hermann, Cahn & Xxxxxxxxx is an
acceptable escrow agent.
All other programs and benefit coverages available to you as an employee,
consultant, officer or director of NAC shall cease in accordance with the terms
of the program or benefit coverage as of November 3, 2000; provided, however,
that nothing herein or in the General Release shall limit or terminate your
rights, if any, to indemnification as a former officer or director of NAC
pursuant to Delaware law and NAC's by-law and charter provisions pertaining
thereto and for coverage pursuant to NAC's directors and officers insurance
policy.
You agree to cooperate with NAC, its counsel and its insurance carriers in
the defense or prosecution of any claims brought by or against NAC.
4. You acknowledge that you have no entitlement to receive the payments set
forth in paragraph 3 hereof, other than in consideration for your General
Release of all claims against the Company and your performance of the provisions
of this Agreement. You confirm that no other monies or other compensation are
due to you other than as are provided for in paragraph 3 of this Agreement. By
January 5, 2001 you agree to return any and all property of NAC in your
possession, or otherwise under your control, including all documents, data
files, computer disks and all copies thereof.
5. In the event that any prospective employer or any other individual
contacts the Company for a reference regarding you, the Company shall confirm
that you were employed by the Company in the position of "CEO" and the length of
your employment. In the event that any prospective employer or any other
individual requests information from the Company regarding the circumstances
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surrounding your leaving the employ of the Company, the Company will indicate
that you voluntarily resigned. The Company agrees it shall not make or publish
any comment that is defamatory, disparaging or otherwise critical of you or that
would otherwise tend to have an adverse effect upon you.
6. You acknowledge that the records and information which you have acquired
while working for NAC and files, lists, operations data and other materials of
NAC belong exclusively to NAC and are confidential. You further agree not to use
or disclose any such confidential information, whether for your benefit or for
the benefit of another, and you will hold and treat such information as
confidential unless you have specific written authorization from NAC to use or
disclose it. Without limitation to the foregoing, you agree that you will not,
directly or indirectly, for yourself or on behalf of any other person, firm,
association or agency, engage in any of the following acts or conduct unless the
Company gives its prior written consent thereto:
A. Disclose to any entity (other than your attorney, who shall keep
such information confidential) or use (1) any confidential information about the
Company, including but not limited to, confidential information about the
Company's business, business plans, completed, pending or contemplated
transactions, board meetings, personnel or development plans and activities; or
(2) disclose to any entity, except your accountant and lawyer as necessary for
preparation of your income tax returns, any information relating to the
existence of this Agreement, and the subject matter of this Agreement, including
the monetary and benefit provisions hereof, except as required by the
immediately following paragraph and to the extent required by legal process,
provided that you have furnished NAC with notice and an opportunity to seek
relief to such legal process.
B. Make or publish any comment that is defamatory, disparaging or
otherwise critical of the Company, its products, transactions, businesses,
officers, directors, attorneys, agents, management, employees or operations, or
that would otherwise tend to have an adverse effect upon the reputation or
business of the Company or any of the foregoing entities.
7. You acknowledge that certain information you possess about the Company
is of a special, unique and confidential nature and that a breach by you of any
portion of paragraph 6 of this Agreement could cause the Company irreparable
injury and damage. Because it would not be possible to determine the true and
complete extent of the injury or damage to the Company in the event of such a
breach, you agree that any breach of the terms of this Agreement will subject
you to liability to NAC for immediate injunctive relief, all damages awarded by
the Court, attorney's fees and costs expended by NAC in bringing the action and
termination and annulment of NAC's obligations hereunder. You further agree that
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in the event you breach of the terms of this Agreement, in whole or in part, any
amounts paid to you pursuant to paragraph 3 shall become immediately due and
payable to NAC, no further payments under paragraph 3, if any, shall be due to
you and NAC will have and may pursue its legal remedies for repayment,
including, but not limited to, the remedy of recession for breach of contract,
fraud and misrepresentation.
8. You affirm that you have not caused or permitted to be filed on your
behalf, nor will you cause or permit to be filed or asserted on your behalf, any
charge, complaint, grievance, or proceeding before any federal, state or local
administrative agency or court, or any other forum, against the Company, its
officers, directors and employees. In the event that any charge, complaint,
grievance, arbitration, action or other proceeding was or is filed by you, or on
your behalf (other than to receive the consideration promised to you in
paragraph 3 of this Agreement and other than a claim under the Age
Discrimination in Employment Act of 1967, as amended), you agree that you will
not obtain or accept any recovery or relief therefrom or provide any testimony
unless required to do so by subpoena. In the event that such claim falls under
ADEA, NAC will have a set off against any judgment in your favor equal to the
Severance Payment. You further agree to perform and authorize the Company to
perform all acts necessary to obtain the immediate withdrawal and/or dismissal
with prejudice, at your own cost and expense, of each such claim and to pay the
legal fees and costs incurred by the Company for actions taken to defend against
and to seek to obtain the dismissal of any action or claim that is filed or
asserted. You further acknowledge that the filing of any action, other than one
to collect the consideration promised under this Agreement, would be a breach of
this Agreement and would make you liable for the repayment to the Company of any
and all of the payments set forth in paragraph 3 hereof that were paid to you.
9. This Agreement shall be binding on you and the Company, our respective
heirs, executors, administrators, successors and assigns, and shall be construed
under the laws of the State of Ohio to preserve its enforceability and the
general release, settlement and waiver of all claims of each and every kind
except those specifically preserved hereunder. A court may modify or delete any
otherwise unenforceable clause.
10. You and the Company agree to be legally bound by this Agreement, and
hereby agree that this Agreement can be modified only by a written memorandum
signed by both you and the Company, which recites the specific intent to modify
this Agreement. It is specifically understood and agreed that this Agreement
shall not in any way be construed as an admission that either you or NAC has
violated any federal, state or local law or common law or fiduciary duty.
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11. The terms of this Agreement and General Release attached hereto are the
product of mutual negotiation and compromise between you and the Company. The
meaning, effect and terms of this Agreement and General Release have been fully
explained to you, and you understand that this Agreement and General Release
settles, bars, and waives any and all claims that you have or could possibly
have against the Company, unless prohibited from releasing such claim by law or
unless expressly reserved hereunder. You acknowledge that you have been given a
period of at least twenty-one (21) days to consider the Agreement and General
Release and its content and its ramifications and that to the extent that you
execute the Agreement and General Release prior to the end of such twenty-one
(21) day period you knowingly and voluntarily waive such review period.
You understand that you may revoke your execution of this Agreement and
General Release within the seven (7) business day period following the day you
execute this Agreement and General Release. You understand that this Agreement
and General Release shall not become effective or enforceable until the
revocation period has expired and no further payments need be made during that
time. Any revocation within this period must be submitted, in writing, to the
Company and state, "I hereby revoke my acceptance of our Agreement and General
Release". Said revocation must be personally delivered to the Company, in care
of Xxx Xxxxxx, General Counsel, or his designee, or mailed to the Company, in
care of Xxx Xxxxxx, General Counsel, and postmarked within seven (7) business
days of the execution of this Agreement and General Release. If written notice
of revocation is not received by NAC within the seven (7) day period, this
Agreement and Release shall be fully effective and enforceable, and the Company
shall thereupon deliver to you the fully executed General Release in the form
annexed hereto as Exhibit B.
12. You acknowledge that you have been advised by the Company to consult
with an attorney prior to executing this Agreement and General Release. You
understand that you will have ample time to consult further with your counsel
during the revocation period described in paragraph 10 of this Agreement.
13. You acknowledge that you have carefully read and fully understand the
terms of this Agreement and General Release and that your acceptance of this
Agreement in accordance with the terms hereof releases the Company from any and
all claims arising out of your employment relationship with the Company, or the
termination thereof. You acknowledge that you have signed this Agreement and
General Release of your own free will, in exchange for the benefits to be
provided to you as set forth in paragraph 3 hereof.
14. No representative of the Company has made any representations or
promises to you concerning the terms and effects of this Agreement and General
Release other than those contained in this Agreement and General Release, and in
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executing this Agreement and General Release, you do not rely, and have not
relied, upon any representations or statements not set forth herein with regard
to the subject matter, basis or effect of this Agreement and General Release or
otherwise.
15. This Agreement and General Release constitute your and the Company's
entire agreement with respect to its subject matter and may not be modified or
amended except as set forth in paragraph 11 hereof. This Agreement and General
Release supersede all prior agreements and understandings concerning its subject
matter, including but not limited to, your employment and other relationships
with the Company. This Agreement and the General Release shall be interpreted,
construed, and enforced in accordance with the laws of the State of Ohio. You
and the Company consent to personal jurisdiction and venue in the federal and
state courts situated in Cleveland, Ohio, with respect to any dispute arising
between you and the Company arising and you and the Company waive trial by jury
for any such action.
16. The effectiveness of this agreement is subject to the condition
precedent that it is approved by the Board of Directors of the Company before
11:59 P.M., Eastern Standard Time, on December 15, 2000. If such approval is not
obtained, this agreement shall be null and void and of no effect and no party
shall refer to this agreement in any litigation that may arise between them.
Your signature on the copy of this Agreement in the space provided below,
as well as your execution of the General Release in the form annexed hereto as
Exhibit A, shall constitute your acceptance of the terms and conditions hereof.
Very truly yours,
National Auto Credit, Inc.
By
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CEO
AGREED AND ACCEPTED:
this day of 2000.
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Xxxxx X. Xxxxx
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The undersigned hereby acknowledges that he is an attorney duly authorized to
practice law in the State of Ohio and that he has consulted with and advised
Xxxxx X. Xxxxx in connection with this agreement and the annexed General
Release.
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Name of Counsel
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EXHIBIT A
GENERAL RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT
Xxxxx X. Xxxxx as RELEASOR, in consideration of the sum of One ($1.00)
Dollar and other good and valuable consideration set forth in the Agreement
between RELEASOR and National Auto Credit, Inc. ("NAC") dated December 14, 2000,
releases and discharges NAC and NAC's affiliates, officers, directors,
employees, agents, subsidiaries, successors, employees, attorneys and assigns
(collectively, "RELEASEE") from all actions, causes of action, contracts,
agreements, claims for bonuses, payments, wages, benefits or other forms of
compensation, charges, complaints and demands whatsoever, in law or equity,
which against RELEASEE RELEASOR, his dependents, heirs, creditors, executors,
administrators, successors, assigns or counsel may have, whether now known or
unknown, from the beginning of the world to the day of the date of this RELEASE,
including, but not limited to, all claims relating to RELEASOR'S
employment/consulting services or relationship with NAC and his service as an
officer and director of NAC and the cessation thereof. Without limitation to the
foregoing, RELEASOR hereby waives, releases and discharges any actions sounding
in or related to tort (including defamation, infliction of emotional distress or
other tort), contract (whether oral or written, expressed or implied from any
source), tort, promissory estoppel, or arising under the Worker Adjustment and
Retraining Notification Act of 1988, 23 U.S.C. Sections 2101 et seq., or
discrimination of any kind, including but not limited to all claims under the
Age Discrimination in Employment Act, 29 U.S.C. Sections 621 et seq.; the Civil
Rights Act of 1871, 42 U.S.C. Section 1981; the Civil Rights Act of 1964, 42
U.S.C. Section 2000e, et seq.; Ohio Revised Code Section 4112; Ohio Revised Code
Section 4101.17; the Americans With Disabilities Act, 42 U.S.C. Sections 12101,
et seq.; the Rehabilitation Act, 29 U.S.C. Sections 701 et seq.; the Older
Workers Benefit Protection Act, 29 U.S.C. Sections 621 et seq; the National
Labor Relations Act, the Fair Labor Standards Act under; the Employee Retirement
Income Security Act of 1974; the Vocational Rehabilitation Act; and any other
federal, state or local discrimination, bias, human or civil rights, wage-hour,
pension or labor laws, rules and/or regulations or public policies or any other
claim, whether known or unknown, of any kind whatsoever.
Nothing in this General Release shall release or discharge the provisions of the
Letter Agreement between Xxxxx X. Xxxxx and NAC dated December 14, 2000.
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This Agreement and the General Release shall be interpreted, construed, and
enforced in accordance with the laws of the State of Ohio.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be modified or changed except in a written instrument
executed by NAC and by Xxxxx X. Xxxxx.
IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S
hand and seal on the 14 th day of December,2000.
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Xxxxx X. Xxxxx
STATE OF
COUNTY OF ) ss.:
On , 2000, before me personally came
_________________ , to me known, and known to me to be the individual described
in, and who executed the foregoing RELEASE, and duly acknowledged to me that he
executed the same.
Notary Public
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EXHIBIT B
GENERAL RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT
National Auto Credit, Inc., together with its officers, directors,
affiliates, successors and assigns, ("NAC") as RELEASOR, in consideration of the
sum of One ($1.00) Dollar and other good and valuable consideration as set forth
in the December 14, 2000 Agreement with Xxxxx Xxxxx, releases and discharges
Xxxxx X. Xxxxx ("RELEASEE") from all actions, causes of action, contracts,
agreements, claims, complaints and demands whatsoever, in law or equity, which
against RELEASEE RELEASOR, may have, whether now known or unknown, from the
beginning of the world to the day of the date of this RELEASE, including, but
not limited to, all claims relating to RELEASOR'S employment/consulting services
or relationship with NAC and his service as an officer and director of NAC and
the cessation thereof. Without limitation to the foregoing, RELEASOR hereby
waives, releases and discharges any actions sounding in or related to tort
(including defamation, infliction of emotional distress or other tort), contract
(whether oral or written, expressed or implied from any source), tort,
promissory estoppel.
Nothing in this General Release shall release or discharge the provisions of the
Letter Agreement between Xxxxx X. Xxxxx and NAC dated December 14, 2000.
This Agreement and the General Release shall be interpreted, construed, and
enforced in accordance with the laws of the State of Ohio.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be modified or changed except in a written instrument
executed by NAC and by Xxxxx X. Xxxxx.
IN WITNESS WHEREOF, the RELEASOR has hereunto set RELEASOR'S
hand and seal on the _______day of , 2000.
National Auto Credit, Inc.
By:
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STATE OF
COUNTY OF ) SS.:
ADD Corporate verification
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