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EXHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated
and effective as of the 1st day of August, 1998, by and between National Auto
Finance Company, Inc., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxx ("Xxxxxx"), residing at 000 Xxxxx Xxxxxxxx Xxx, Xxxxx Xxxxx, 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, the Company and Xxxxxx entered into an employment agreement
dated and effective as of March 1, 1998 (the "Original Agreement"); and
WHEREAS, the Company and Xxxxxx desire to amend and restate that
Original Agreement as set forth herein and to have this Agreement supersede the
Original Agreement in its entirety; and
WHEREAS, the Company desires to retain the services of Xxxxxx in the
capacity of Vice President, Collections, and Xxxxxx desires to provide such
services in such capacity to the Company, on the terms and subject to the
conditions set forth in this Agreement.
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 Xxxxxx, and Xxxxxx
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 August 1, 1998, and ending on February 28, 2001, unless this
Agreement is sooner terminated as provided herein (the "Term").
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2. Duties. During the Term, Xxxxxx shall, in his capacity as the
Company's Vice President, Collections, 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 the collection
activities of the Company and the supervision of employees of the Company who
are subordinate to Xxxxxx, and (ii) may be reasonably assigned to him from time
to time by the Board of Directors or the Chairman, Chief Executive Officer,
President and/or Chief Operating Officer of the Company, or by anyone else
designated by those officers or directors. Xxxxxx shall report to the Board of
Directors and to the Chairman, Chief Executive Officer, President and/or Chief
Operating Officer, if any, of the Company, or to anyone else designated by those
directors or officers.
3. Other Business Activities. During the Term, Xxxxxx 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 Xxxxxx'x duties, responsibilities and
obligations pursuant to this Agreement.
4. Compensation.
(a) Salary. During the Term, the Company shall pay Xxxxxx, and Xxxxxx
hereby agrees to accept, as compensation for all services rendered and for
Xxxxxx'x covenant not to compete as provided for in Section 9 hereof, a base
salary (the "Base Salary") at an annual rate as follows:
(i) $105,000 for the period August 1, 1998 through February 28, 1999;
(ii) no less than $112,350 for the period March 1, 1999 through
February 29, 2000; and
(iii) no less than $120,215 for the period March 1, 2000 through February
29, 2001.
The sole and final determination of whether Xxxxxx will receive an increase of
his Base Salary for the periods March 1, 1999 through February 28, 2000 and
March 1, 2000 through February 28, 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
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and other taxes and charges which are required by law to be
withheld by the Company or which are requested to be withheld by Xxxxxx, 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. Xxxxxx shall be eligible for an incentive bonus
("Incentive Bonus") for each of calendar years 1998, 1999 and 2000. For calendar
year 1998, Xxxxxx shall be entitled to an Incentive Bonus of $33,705, which is
equal to 30% of Xxxxxx'x 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 Xxxxxx the opportunity to earn an Incentive
Bonus equal to at least 30% of Xxxxxx'x 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. Xxxxxx 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 Xxxxxx 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 Company did approve on June 29, 1998
granting Xxxxxx an option to purchase shares of the common stock of the Company
equal to 0.5% 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 Xxxxxx.
6. Benefits and Expenses.
(a) Benefits. Xxxxxx shall be entitled to participate in such benefit
plans and programs, including pension, hospitalization, medical and dental
insurance, life and
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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. Xxxxxx 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 Xxxxxx with a car allowance of
Six Hundred Dollars ($600.00) gross per month ("Auto Allowance") and reimburse
Xxxxxx for gasoline and normal maintenance expenses for his automobile upon
submission to the Company of receipts supporting such expenses.
7. Confidentiality.
(a) Non-Disclosure. Xxxxxx 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, Xxxxxx 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 Xxxxxx'x 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 Xxxxxx'x 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 Xxxxxx'x 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 disclosures may be required by law; and
further provided, that nothing herein contained shall restrict Xxxxxx 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 Xxxxxx'x 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
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or conceived by Xxxxxx, 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 Xxxxxx'x right, title and interest therein,
shall be the exclusive property of the Company. Xxxxxx hereby assigns, transfers
and conveys to the Company all of his right, title and interest in and to any
and all such Developments. Xxxxxx 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, Xxxxxx 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 Xxxxxx for all reasonable expenses Xxxxxx
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, Xxxxxx 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 safekeeping as promptly as possible
after the removal shall serve its specific purpose. Xxxxxx 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
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the Company, all originals and copies of the foregoing then in his
possession, whether prepared by Xxxxxx or by others.
9. Covenant Not to Compete.
(a) Xxxxxx shall not, during the Term, anywhere within the
United States of America or in any other location where the activities of Xxxxxx
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
either (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 Xxxxxx'x 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 Xxxxxx'x termination.
(b) The Company shall have the right, but not the obligation,
to require Xxxxxx, for a six month period of time following the termination of
Xxxxxx'x employment (for whatever reason), anywhere within the United States of
America or in any other location where the activities of Xxxxxx 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
Xxxxxx, over the extended covenant period, of fifty percent (50%) of the amount
paid to Xxxxxx (as reflected in the Company's payroll records) by the Company in
the full calendar year immediately preceding Xxxxxx'x
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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 Xxxxxx shall either expire pursuant
to Section 1 hereof, or shall be terminated pursuant to Section 10 of this
Agreement, Xxxxxx 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
Xxxxxx'x 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,
Xxxxxx 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 Xxxxxx such that Xxxxxx
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"), Xxxxxx'x employment under this Agreement
may be terminated by the Company.
(b) In the event of a termination of Xxxxxx'x employment
pursuant to Section 10.1(a), the Company shall be obligated to pay Xxxxxx (i)
all accrued but unpaid (as of the date of such termination) Base Salary,
Benefits and Auto Allowance, and to reimburse Xxxxxx for all unreimbursed
out-of-pocket business-related expenses and (ii) an amount equal to Xxxxxx'x
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 Xxxxxx for compensation or
benefits hereunder by reason of such termination.
(c) For purposes of this Section 10.1, except as hereinafter
provided, the determination as to whether Xxxxxx is Disabled shall be made by a
licensed physician selected by Xxxxxx 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 Xxxxxx submit to a full physical examination by another
licensed physician selected by Xxxxxx 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
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selected by Xxxxxx 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 Xxxxxx dies
during the Term, Xxxxxx'x employment shall be terminated thereby and the Company
shall pay to Xxxxxx'x 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 Xxxxxx 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 Xxxxxx'x executors, legal representatives,
administrators, heirs or assigns or to any other person claiming under or
through him by reason of Xxxxxx'x death.
10.3 Termination for Cause.
(a) The Company may terminate Xxxxxx'x employment under this
Agreement at any time for "Cause" upon written notice to Xxxxxx, 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 Xxxxxx of any of his obligations under Sections 7, 8 or 9 of
this Agreement; (ii) failure or refusal by Xxxxxx to perform satisfactorily the
duties assigned to him pursuant to this Agreement; (iii) other conduct of Xxxxxx
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) Xxxxxx'x
willful engagement in conduct materially injurious to the economic interests or
reputation of the Company; or (v) Xxxxxx'x insubordination, acts of moral
turpitude or other gross misconduct.
(b) In the event of a termination of Xxxxxx'x employment
pursuant to Section 10.3(a), the Company shall be obligated to pay to Xxxxxx all
accrued but unpaid (as of the date of such termination) Base Salary, Benefits
and Auto Allowance, and all Base Salary, Benefits 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 Xxxxxx for
compensation or benefits hereunder by reason of such termination.
10.4 Termination without Cause.
(a) The Company may terminate Xxxxxx'x employment under this
Agreement without Cause upon at least sixty (60) days prior written notice
thereof to Xxxxxx, in which case this Agreement shall terminate on the date
specified in such notice.
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(b) In the event of a termination of Xxxxxx'x employment
pursuant to 10.4(a), the Company shall be obligated to pay to Xxxxxx all accrued
but unpaid (as of the date of such termination) Base Salary, Benefits and Auto
Allowance and to reimburse Xxxxxx for all unreimbursed out-of-pocket
business-related expenses. Xxxxxx 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 six (6) 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 Xxxxxx for compensation or benefits hereunder by
reason of such termination.
10.5 Termination by Xxxxxx for Good Reason.
(a) Xxxxxx may terminate his employment under this Agreement
at any time for Good Reason (as hereinafter defined) effective upon the date
designated by Xxxxxx 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
Xxxxxx, 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 Xxxxxx hereunder, which failure is not cured by the
Company within ten (10) days after the Company's receipt of written notification
from Xxxxxx 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 Xxxxxx of such material breach.
(b) In the event of a termination of Xxxxxx'x employment for
Good Reason pursuant to Section 10.5(a), the Company shall be obligated to pay
to Xxxxxx all accrued but unpaid (as of the date of such termination) Base
Salary, Benefits and Auto Allowance and to reimburse Xxxxxx for all unreimbursed
out-of-pocket business-related expenses. Xxxxxx 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 six (6) 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
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shall have no liability or obligation to Xxxxxx for compensation or benefits
hereunder by reason of such termination.
(c) Xxxxxx may also terminate his employment under this
Agreement if Xxxxxxx X. Xxxxx, the Company's Executive Vice President and Chief
Operating Officer, ceases to be employed by the Company, its divisions,
subsidiaries, sister organizations, or parent organization. In the event of such
a termination, the Company shall be obligated to pay all accrued but unpaid (as
of the date of such termination) Base Salary, Benefits and Auto Allowance and to
reimburse Xxxxxx for all unreimbursed out-of-pocket business-related expenses.
Except as specifically set forth in this Section 10.4(c), the Company shall have
no liability or obligation to Xxxxxx 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 Xxxxxx, such failure shall constitute a
material breach of this Agreement. Xxxxxx 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 Xxxxxx
pursuant to Sections 7, 8, 9, 10 and 14 of this Agreement shall survive the
termination of Xxxxxx'x employment hereunder.
12. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the Company and Xxxxxx and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Xxxxxx 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. Xxxxxx represents to the Company that
(i) Xxxxxx is not currently under contract to provide services to any other
party or entity; (ii) the execution, delivery and performance of this Agreement
by Xxxxxx will not conflict with any other agreement, except the Original
Agreement, to which Xxxxxx is bound or to which Xxxxxx is a party; and (iii)
Xxxxxx 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 Xxxxxx 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 Xxxxxx:
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxxxx, 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 and understandings of every nature between
the parties hereto relating to the employment of Xxxxxx
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with the Company. This Agreement may not be changed or modified, except by an
agreement in writing signed by both of the parties hereto.
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. Xxxxxx 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.
Xxxxxx also acknowledges that the nature of both his services to the Company and
the obligations undertaken by Xxxxxx 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 Xxxxxx, 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/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
COMPANY:
NATIONAL AUTO FINANCE COMPANY, INC.
By: Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
and Chief Operating Officer
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