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EXHIBIT 10.19
DEPARTURE AGREEMENT
This Departure Agreement ("Agreement") is made and entered into as of
the 6th day of December, 1999 (the "Effective Date") by and among Austin
Funding Corporation, a Texas corporation (the "Company") and Xxxxx X.
Xxxxxxxx ("Xxxxxxxx").
R E C I T A L S
WHEREAS, Xxxxxxxx is employed by, and an officer of the Company; and
WHEREAS, Xxxxxxxx desires to resign, and the Company desires to accept
his resignation, as an employee and officer of the Company, and all other
positions Xxxxxxxx may have with the Company's subsidiaries and affiliates, if
any (the "Other Entities"); and
WHEREAS, Xxxxxxxx and the Company desire to set forth certain
agreements with respect to Xxxxxxxx=s departure from the Company.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto agree as follows:
1. Xxxxxxxx agrees, effective as of December 31, 1999 (the "Departure
Date"), to resign his positions as an officer and employee with the Company and
the Other Entities and to execute and deliver to the Company a resignation
letter in substantially the same form as the letter attached hereto as Exhibit
"A".
2. Effective as of the Departure Date, Xxxxxxxx hereby RELEASES,
ACQUITS, and DISCHARGES the Company (together with its officers, directors,
agents, servants, employees, attorneys and all persons, natural or corporate, in
privity with it or any of them) from all obligations and liabilities relating to
Xxxxxxxx'x employment by, and service as an officer on behalf of, the Company,
its subsidiaries and affiliates and all matters, causes of action, accountings,
suits, controversies, agreements, damages, claims and demands, whether
heretofore or hereafter accruing, whether now known or not known to the parties
prior to and including the date hereof, in any way directly or indirectly
arising out of or in connection with such employment or service and any
documents, transactions or dealings between the parties relating hereto, it
being the intent of Xxxxxxxx to fully and completely discharge the Company, its
subsidiaries and affiliates (together with its and their officers, directors,
agents, servants, employees, attorneys and all persons, natural or corporate, in
privity with it or any of them) from any and all liabilities and obligations
related to or arising from all prior relationships, instruments and courses of
dealing, except that the parties shall continue to be bound by the obligations
described in this Agreement.
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3. Xxxxxxxx agrees to indemnify and hold the Company, its officers,
directors and employees harmless from and against all expenses, claims, losses,
damages or liabilities (or actions in respect thereof), including any of the
foregoing, incurred with respect to the Stock sold pursuant to the Stock
Purchase Agreement by and between Xxxxxxxx and Austin Xxxxxxx.xxx Corporation
and/or Xxxxxxxx'x actions and activities while an officer, officer and/or
employee of the Company, whether in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in this Agreement or any other agreement
executed by Xxxxxxxx on behalf of the Company, or based on any omission (or
alleged omission) to state herein a material fact required to be stated herein
or therein or necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading, or any violation by
Xxxxxxxx of any federal or state law or regulation during his service as an
officer and/or employee of the Company, and Xxxxxxxx will reimburse the Company
for any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action. The foregoing indemnity shall survive the Effective Date of this
Agreement.
4. The Company hereby RELEASES, ACQUITS, and DISCHARGES Xxxxxxxx
(together with his heirs, executors, administrators, assigns, legal
representatives and attorneys) from all matters, causes of action, accountings,
suits, controversies, agreements, damages, claims and demands, whether
heretofore or hereafter accruing, whether now known or not known to the parties
prior to and including the date hereof, in any way directly or indirectly
arising out of or in connection with his employment or service and any related
documents and any transactions or dealings between the parties hereto, it being
the intent of the Company to fully and completely discharge Xxxxxxxx (together
with his heirs, executors, administrators, assigns, legal representatives and
attorneys) from any and all liabilities related to or arising from all prior
relationships, instruments and courses of dealing, except that the parties shall
continue to be bound by the obligations described in this Departure Agreement
and those items not related to Xxxxxxxx'x employment or service to the Company.
Notwithstanding the foregoing, the Company does not release, acquit or discharge
any matters, causes of action, accountings, suits, controversies, agreements,
damages, claims and demands to the extent they result from actions taken or
omitted to be taken by Xxxxxxxx fraudulently, in bad faith, or from Xxxxxxxx'x
negligence.
5. The Company agrees to use reasonable efforts to obtain the release
of Xxxxxxxx as a guarantor for the benefit of the Company.
6. The Company agrees, commencing on the Departure Date and continuing
through June 30, 2001, to continue in full force and effect at its cost and
expense Xxxxxxxx=s existing health and, if any, life insurance coverage(s). Each
of the Company and Xxxxxxxx agree to reasonably cooperate with the other with
respect to such coverage during such period, including, without limitation, the
filing of insurance claims and the provision of insured benefits information.
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7. The Company agrees, commencing on the Departure Date and continuing
through December 31, 2003, to provide Xxxxxxxx, at the Company's cost and
expense, with a lease vehicle which comports with the specifications listed in
Exhibit "B" attached hereto; provided, however, the lease cost for such vehicle
shall not exceed the sum of $1,500.00 per month.
8. The undersigned represent and warrant that they are fully authorized
and empowered to execute this Agreement and that neither they, nor the entities
they represent, if any, are subject to any limitation or disability created by
law or otherwise which would in any manner or to any extent prevent or restrict
the undersigned (as a representative or as a principal) from entering into and
fully performing their obligations under this Agreement.
9. Xxxxxxxx and the Company each represent and warrant to each other
that they have not transferred to any person or entity any claim or cause of
action or any part thereof relating to Xxxxxxxx'x employment and service or any
other matters covered by this Agreement, and that each is the 100% owner of all
claims and causes of action it may have or has ever had against the other.
10. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, legal representatives, successors
and assigns.
11. The construction and validity of this Agreement shall be governed
by the laws of the State of Texas. All obligations hereunder are performable in
Xxxxxx County, Texas.
12. Any controversy or claim arising out of this Agreement, or the
breach thereof, shall be settled by arbitration in accordance with the rules of
the American Arbitration Association, and judgment upon the award rendered by
the arbitration may be entered in any court having jurisdiction thereof. The
arbitration agreement set forth herein shall not limit a court from granting a
temporary restraining order or preliminary injunction in order to preserve the
status quo of the parties pending arbitration. Further, the arbitrator(s) shall
have power to enter such orders by way of interim award, and they shall be
enforceable in court. The place of such arbitration shall be in Xxxxxx County,
Texas.
13. In any case in which 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 any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
14. This Agreement contains the entire agreement of the parties hereto.
There are no other agreements, oral or written, among the parties concerning
Xxxxxxxx=s employment by, or service as an officer, on behalf of, the Company,
and this Agreement can be amended only by written agreement signed by the
parties hereto and by reference made a part hereof.
15. This Agreement shall be effective as of the Effective Date,
notwithstanding the fact that certain obligations hereunder shall be effective
only as of the Departure Date.
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IN WITNESS WHEREOF, the parties have executed this Agreement in
multiple counterparts, each of which shall be deemed an original.
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx, Individually
AUSTIN FUNDING CORPORATION, a Texas
corporation
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. XxXxxxxx, President
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EXHIBIT "A"
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
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VIA HAND DELIVERY
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December 31, 1999
Xx. Xxxxx X. XxXxxxxx
President
Austin Funding Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Dear Xxxxx:
Please be advised that I resign my positions as an employee and officer of
Austin Xxxxxxx.xxx Corporation, effective this date. I additionally resign all
my positions, if any, with Austin Funding Corporation, effective this date.
Very truly yours,
/s/ XXXXX XXXXXXXX
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EXHIBIT "B"
Vehicle Lease Specifications
1998 Mercedes SL 500
