EXHIBIT 10.16
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "AGREEMENT"), effective as of April 18, 2003
(the "EFFECTIVE DATE"), among Xxxx Xxxxxxxx ("EXECUTIVE") and OMI Communication,
Inc. ("EMPLOYER"), a Delaware corporation. Executive, Employer are hereinafter
sometimes referred to collectively as the "PARTIES" and each as a "PARTY."
WHEREAS, Executive and Employer have entered into a certain Merger
Agreement And Plan Of Reorganization (the "MERGER AGREEMENT"), dated as of April
1, 2003, by an among National Auto Credit, Inc. ("NAC"), Employer, ORA/Metro
Incorporated ("ORA") and Executive providing, inter alia, for the merger of ORA
with and into Employer, as a subsidiary of NAC;
WHEREAS, in conjunction with such merger, Executive desires to be hired and
employed by Employer to supervise and operate the businesses of Employer, and
Employer desires to hire and employ Executive to supervise and operate its
businesses; and
WHEREAS, Section 5.2 of the Merger Agreement provides that the parties
hereto will enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. EMPLOYMENT OF EXECUTIVE
Employer hereby agrees to employ Executive, and Executive hereby agrees to
be and remain in the employ of Employer, upon the terms and conditions
hereinafter set forth.
2. EMPLOYMENT PERIOD; EMPLOYMENT YEAR
2.1 Employment Period. Subject to earlier termination as provided in
Section 5 hereof, the term of Executive's employment under this Agreement shall
commence as of the date hereof and shall continue for a period (the "INITIAL
EMPLOYMENT PERIOD") ending on January 31, 2008. Notwithstanding anything
contained herein to the contrary, if the Stockholder's Note (as defined in the
Merger Agreement) has not been paid in full or otherwise discharged prior to the
expiration of the Initial Employment Period or, if the term of Executive's
employment under this Agreement shall have been extended as provided herein,
prior to the end such term, then Executive may, by written notice given to
Employer at least ninety (90), but not more than one hundred and eighty (180),
days prior to the date this Agreement would otherwise expire, elect to extend
the term of his employment hereunder until (a) the first anniversary of the date
the Initial Employment Period would expire or, if the term of Executive's
employment under this Agreement shall have been extended as provided herein, the
first anniversary of the date such term would have otherwise expired or (b) such
earlier date as may be specified in such notice; provided, however, that no
extension shall be effective to extend Executive's employment hereunder beyond
the date the Stockholder's Note is paid in full or otherwise discharged. As used
herein, "EMPLOYMENT PERIOD" means the Initial Employment Period plus any
extension of the term of Executive's employment under this Agreement that has
been made as provided above.
2.2 Employment Year. As used herein, an "EMPLOYMENT YEAR" means the period
commencing on the date hereof and ending on January 31, 2004 and each successive
twelve month period commencing on February 1st and ending on the following
January 31st.
3. DUTIES AND RESPONSIBILITIES; PLACE OF PERFORMANCE
3.1 Duties and Responsibilities. During the Employment Period, Executive
shall have the titles of, and shall serve as, President of Employer. During the
Employment Period, Executive shall devote all of his business time to Employer
and its subsidiaries (if any) and to his duties and responsibilities hereunder
and shall perform such duties and obligations (not inconsistent with his
positions as President of Employer) as may be assigned to him from time to time
by the Employer's Board of Directors (such Board of Directors, the "BOARD") or
by the Chairman or Chief Executive Officer of NAC. During the Employment Period,
Executive shall (subject to the next following sentence) have authority and
responsibility to manage all day-to-day business and operations of Employer and
its subsidiaries (if any), including the hiring of all personnel, but all
decisions with respect to the firing or other termination of personnel shall be
made jointly by Executive and by the Board or the Chairman or Chief Executive
Officer of NAC, with neither side to unreasonably withhold or delay his or its
consent. Notwithstanding anything contained herein to the contrary, Executive
shall not have authority or responsibility, without the consent or approval of
the Board or the Chairman or Chief Executive Officer of NAC, to cause Employer
(or any subsidiary of Employer) to take (or allow or permit Employer (or any
subsidiary of Employer) to take), and Executive shall not cause Employer (or any
subsidiary of Employer) to take (or allow or permit Employer (or any subsidiary
of Employer) to take), any of the following actions: (a) terminate or cease any
business or line of business of Employer (or such subsidiary) if such business
or line of business has generated revenues of at least fifty thousand dollars
($50,000) during the preceding Fiscal Year (as hereinafter defined); (b)
commence any new business or line of business or acquire any new business or
line of business from any Person (as hereinafter defined); (c) grant any
security interest in, or lien on, any of the assets or property of Employer (or
such subsidiary); (d) sell, transfer or otherwise dispose of any of the assets
or property of Employer (or such subsidiary) other than in the ordinary course
of its business consistent with past practices (which shall, to the extent
applicable, include the past practices of the ORA); (e) loan or advance any
funds (exclusive of the advancing of funds for travel and other business
expenses in accordance with Employer's Policies And Practices (as hereinafter
defined)); (f) guaranty or otherwise act as a surety with respect to any
obligations of any other Person; (g) borrow any funds or money; (h) make any
expenditure (other than a capital expenditure) in excess of one hundred thousand
dollars ($100,000); (i) make any capital expenditure (including, without
limitation, pursuant to any capitalized lease) in excess of fifty thousand
dollars ($50,000) (with it being agreed, however, that consent to capital
expenditures in excess of such amount will not be unreasonably withheld); (j)
enter into or make any contract, agreement or other commitment that (i) would
require payments during any consecutive twelve-month period in excess of fifty
thousand dollars ($50,000) or (ii) have a term that is either (A) more than one
(1) year or (B) extends beyond the end of the Employment Period; (k) relocate
its principal offices; (k) enter into any contract with, or make any commitment
to, any affiliate of Executive; (l) hire any executive officer (or otherwise
retain a person to provide services normally provided by an executive officer);
or (m) grant to any employee any compensation package (including, without
limitation, any employee or fringe benefits) not consistent with Employer's (or
such subsidiary's) customary policies or practices as approved by the Board (or
the Board of Directors of such subsidiary). As used herein, "PERSON" means any
individual, corporation, partnership, limited liability company, trust, business
trust, association or other entity, and "FISCAL YEAR" means any twelve
consecutive month period beginning February 1st and ending on the following
January 31st.
3.2 Place of Performance. In connection with his employment during the
Employment Period, Executive shall be based at the principal offices of
Employer, which shall not be moved more than twenty-five (25) miles (measured in
a straight line and not over streets or roadways) from its current location
without Executive's consent, which consent shall not be unreasonably withheld or
delayed; provided, however, that the principal offices
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of Employer may be moved without Executive's consent if the distance from
Executive's then primary residence to the new location is not greater (measured
in a straight line and not over streets or roadways) than the distance from
Executive's then primary residence to the then existing location of Employer's
principal offices.
4. COMPENSATION AND RELATED MATTERS
4.1 Base Salary. Employer shall pay to Executive an aggregate base salary
(the "BASE SALARY"), which in the first Employment Year shall be payable at the
rate of one hundred and seventy-five thousand dollars ($175,000) per annum and
in each successive Employment Year during the Initial Employment Period shall
increase by eight thousand seven hundred and fifty dollars ($8,750) per annum,
which shall be paid to Executive in arrears bi-weekly in accordance with the
customary practices of NAC.
4.2 Performance Bonus. In addition to his base salary as provided above,
Executive shall, for each full Employment Year he is employed hereunder, be
entitled to receive from Employer a performance bonus equal to twenty percent
(20%) of the amount (if any) by which Employer's Adjusted EBIDTA (as hereinafter
defined) for such Employment Year exceeds one hundred thousand dollars
($100,000) (any such performance bonus, a "PERFORMANCE BONUS"); provided,
however, that, in determining Employer's Adjusted Ebitda for the first
Employment Year, Employer's Adjusted EBIDTA shall include ORA's Adjusted EBITDA
(whether positive or negative) for the period from February 1, 2003 through the
Effective Time (as defined in the Merger Agreement). Any Performance Bonus to
which Executive may become entitled pursuant to this Section 4.2 shall be paid
to Executive within one hundred and twenty (120) days following the end of the
Employment Year for which it was earned. As used herein, "ADJUSTED EBITDA" for
any entity for any period means the earnings of such entity for such period,
before any deduction for interest, taxes, depreciation and amortization, and
before deducting corporate overhead or other expenses allocated to such entity
by NAC but after deducting (A) the aggregate amount of all capital expenditures
(including, without limitation, pursuant to any capital or capitalized lease)
made or required to be made by such entity (or any of its subsidiaries) during
such period and (B) any debt service paid or required to be paid during such
period by such entity (or any of its subsidiaries), including, without
limitation, any amount of debt service paid or required to be paid during such
period pursuant to or with respect to the Stockholder's Note, in each case as
determined in accordance with generally accepted accounting principles ("GAAP").
4.3 Discretionary Bonus. In addition to his base salary and any performance
bonus to which he may be entitled pursuant to Section 4.2 hereof, Executive
shall be entitled to such bonuses (if any), in such amounts and at such times,
as the Board, in its sole and absolute discretion, may approve.
4.4 Stock Options. In addition to his base salary, any performance bonus to
which he may be entitled pursuant to Section 4.2 hereof and any discretionary
bonus to which he may be entitled pursuant to Section 4.3 hereof, Executive
shall be entitled to receive options to purchase one hundred thousand (100,000)
shares of NAC common stock at an exercise price equal to the closing price of a
share of NAC common stock on the date of grant, which options shall vest
one-third at the end of each of the first, second and third Employment Year and
shall otherwise be subject to the customary terms and conditions of stock
options granted under NAC's employee stock option plan. In addition, if the
aggregate of (a) ORA's Adjusted EBITDA (whether positive or negative) for the
period from February 1, 2003 through the Effective Time and (b) Employer's
Adjusted EBITDA for the period from the Effective Time through January 31, 2006
exceeds nine hundred thousand dollars ($900,000), then effective as of February
1, 2006, Executive shall be entitled to receive options to purchase an
additional one hundred thousand (100,000) shares of NAC common stock (adjusted
on account of any stock split, stock dividend or similar event occurring between
the date hereof and February 1, 2006) at an exercise price equal to the closing
price of a share of NAC common stock on February 1, 2006, which options shall
vest one-third at the end of each
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of the fourth, fifth and sixth Employment Year and shall otherwise be subject to
the customary terms and conditions of stock options granted under NAC's employee
stock option plan.
4.5 Automobile Allowance. Employer shall reimburse Executive for the costs
of a leased automobile, including maintenance, fuel and insurance, and/or other
transportation service, in an amount not to exceed two thousand dollars ($2,000)
in any calendar month. Reimbursement for such costs will be conditioned upon
Executive's presentation of signed, itemized accounts of such costs, all in
accordance with the record keeping and accounting aspects of Employer's Policies
And Practices.
4.6 Other Benefits. During the Employment Period, to the extent Executive
is eligible and qualifies under their respective terms, Executive shall be
entitled to receive such fringe benefits as are from time to time hereafter
generally provided by Employer to its senior management employees or other
employees (other than those provided under or pursuant to separately negotiated
individual employment agreements or arrangements) under any pension or
retirement plan, disability plan or insurance, group life insurance, medical and
dental insurance, accidental death and dismemberment insurance, travel accident
insurance or other similar plan or program of Employer. Subject to Executive
being eligible and qualifying therefor, during the term of Executive's
employment hereunder, (A) Employer shall provide a term life insurance policy
for Executive in an amount of four hundred thousand dollars ($400,000) or, if
less, the amount that can be purchased with an annual premium not to exceed
twenty-five hundred dollars ($2,500) and (B) Employer shall, in a manner and
amount consistent with insurance generally provided by NAC to its senior
executive officers, provide short-term and long-term disability insurance for
Executive. To the extent the medical insurance provided by Employer to Executive
does not fully cover the cost of an annual physical examination for Executive,
Employer shall reimburse Executive for such cost promptly after such cost is
incurred and request for such reimbursement have been made to NAC. Executive's
Base Salary shall (where applicable) constitute the compensation on the basis of
which the amount of Executive's benefits under any such plan or program shall be
fixed and determined.
4.7 Expense Reimbursement. Employer shall reimburse Executive for all
business expenses reasonably incurred by him in the performance of his duties
under this Agreement upon his presentation of signed, itemized accounts of such
expenditures, all in accordance with Employer's Policies And Practices. As used
herein, "EMPLOYER'S POLICIES AND PRACTICES" means the policies, procedures and
practices of Employer, as approved by Board and in effect from time to time,
which policies, procedures and practices are anticipated to be the same or
substantially the same as the corresponding policies and procedures applicable
to NAC and its employees.
4.8 Vacations. Executive shall be entitled to twenty (20) days paid
vacation for each Employment Year during the Employment Period, in accordance
with Employer's Policies And Practices. Executive shall also be entitled to paid
holidays and personal days in accordance with Employer's Policies And Practices.
5. TERMINATION OF EMPLOYMENT
5.1 Termination Without Cause; Voluntary Termination by Executive. Employer
may, by written notice to Executive at any time following the second anniversary
hereof, terminate the Employment Period and this Agreement without Cause (as
defined below). Executive may, by written notice to Employer and NAC at any time
during the Employment Period, voluntarily resign from Employer and terminate the
Employment Period and this Agreement by giving written notice of his intention
to do so at least ninety (90) days in advance. A termination under this Section
5.1 shall be effective immediately.
5.2 By Employer for Cause. Employer may, at any time during the Employment
Period, by written notice to Executive, terminate the Employment Period and this
Agreement for Cause, which termination shall be effective immediately except as
otherwise provided below. Such notice shall set forth in reasonable detail the
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basis for such termination. In the event that it is possible for Executive to
cure or correct the circumstances set forth in such notice, the termination
shall not be effective until the date that is thirty (30) days following the
date on which such notice is given, and the circumstances set forth in the
notice shall not constitute Cause if within such 30 days Executive cures or
corrects such circumstances. Employer shall have "CAUSE" to terminate
Executive's employment hereunder upon or on account of Executive's:
(a) any fraud, embezzlement or any other illegal act committed by Executive
in connection with Executive's duties as an executive of Employer or any
subsidiary or affiliate of Employer that causes or may reasonably be expected to
cause substantial economic injury to Employer or any subsidiary or affiliate of
Employer;
(b) any conviction of any felony that causes or may reasonably be expected
to cause substantial economic injury to Employer or any subsidiary or affiliate
of Employer;
(c) any breach or violation of any material term or condition of this
Agreement; or
(d) any willful or grossly negligent commission of any other act or failure
to act that causes or may reasonably be expected (as of the time of such
occurrence) to cause substantial economic injury to or substantial injury to the
reputation of Employer or any subsidiary or affiliate of Employer, including,
without limitation, any material violation of the Foreign Corrupt Practices Act,
as described below. An act or failure to act on the part of Executive shall be
considered "willful" if done, or omitted to be done, by Executive in bad faith
or without a reasonable belief that the act or omission was in the best interest
of Employer.
5.3 By Executive for Good Reason. Executive may, at any time during the
Employment Period by written notice to Employer and NAC, terminate the
Employment Period and this Agreement for Good Reason (as defined below), which
termination shall be effective immediately subject to the notice and cure period
provided for below. For the purposes hereof, "GOOD REASON" means any of the
following without Executive's consent: (A) subject to Section 3 above, a
material and adverse change in the nature and scope of Executive's authority and
duties; or (B) a material breach of this Agreement by Employer (including, but
not limited to, failure to pay any amount due to Executive when due); provided,
however, that the circumstances set forth in the foregoing clauses (A) and (B)
will not constitute Good Reason unless Executive shall have given Employer and
NAC written notice of his election to terminate this Agreement for Good Reason
(which notice shall set forth in reasonable detail the circumstances giving rise
to such election to terminate) and Employer shall have failed to cure or correct
such circumstances within thirty (30) days of its receipt of such notice.
5.4 Disability. During the Employment Period, if, as a result of physical,
psychological or mental incapacity, disability or infirmity, Executive shall be
unable to perform any of his duties under this Agreement for (i) a period of at
least 60 days (60) consecutive days or (ii) periods aggregating at least 120
days during any period of twelve (12) consecutive months (each a "DISABILITY
PERIOD"), and at the end of the Disability Period there is no reasonable
probability that Executive can promptly resume his duties hereunder, Executive
shall be deemed to has sustained a disability (a "DISABILITY") and Employer, by
written notice to Executive, shall have the right to terminate the Employment
Period and this Agreement for Disability either at, as of or after the end of
the Disability Period. The existence of a Disability shall be determined by a
reputable, licensed physician. The parties (with NAC acting on behalf of
Employer for this purpose) shall attempt to agree on such a physician. In the
event the parties are unable to so agree, such physician shall be selected by an
arbitrator provided by the American Arbitration Association in New York, New
York. Executive shall cooperate fully in all reasonable respects to enable an
examination to be made by such physician.
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5.5 Death. The Employment Period and this Agreement shall terminate on the
date of Executive's death.
6. TERMINATION COMPENSATION
6.1 Termination by Employer without Cause or by Executive for Good Reason.
If the Employment Period is terminated by Employer without Cause or by Executive
for Good Reason, Employer will pay to Executive the lesser of (a) the Cap Amount
(as hereinafter defined) or (b) the amount of base salary to which Executive
would be entitled for the balance of the Initial Employment Period or, if the
term of Executive's employment hereunder has been extended pursuant to Section
2.1 hereof, for the balance of the Employment Period. Employer shall pay to
Executive such amount in a lump sum cash payment as soon as practicable (but in
any event within ninety (90) days) following the effective date of such
termination. Employer shall also continue to provide Executive with all employee
benefits that he was participating in or receiving at the effective date of
termination for a period (the "POST-TERMINATION PERIOD") of two years or, if
shorter, until the end of the Initial Employment Period or, if the term of
Executive's employment hereunder has been extended pursuant to Section 2.1
hereof, until the end of the Employment Period; provided, however, that, to the
extent, as a consequence of such termination, Executive is not eligible to
receive or does not qualify for such benefits for all or a portion of the
Post-Termination Period, Executive shall be entitled to receive from Employer an
amount (on a tax effective basis) equal to the out-of-pocket cost to Employer of
such benefits for a period, immediately preceding such termination, equal to the
portion of the Post-Termination Period during which such benefits are not
provided. Further, in the event the Employment Period is terminated by Employer
without Cause, Executive shall also be entitled to receive the following
compensation: (a) with respect to the Employment Year during which such
termination occurred (such Employment Year, the "TERMINATION YEAR"), the full
Performance Bonus Executive would have been entitled to receive pursuant to
Section 4.2 above if Executive had remained employed hereunder for the balance
of the Termination Year; and (b) with respect to each successive Employment Year
(if any) that would have occurred prior to the end of the Employment Period
(each such Employment Year, a "SUCCESSIVE YEAR"), the product of (I) the full
Performance Bonus Executive would have been entitled to receive pursuant to
Section 4.2 above if Executive had remained employed hereunder for all of such
Successive Year times (II) a fraction, the numerator of which is (A) the total
numbers of Successive Years less the number of years after the Termination Year
that such Successive Year is and the denominator of which is the number of
Successive Years. Executive shall be entitled to receive such additional
compensation (if any) at the same time Executive would have been entitled to
receive the corresponding Performance Bonus under Section 4.2 above if he had
remained employed hereunder. By way of example only, if the Employment Period is
comprised of five (5) Employment Years and Executive is terminated by Employer
without Cause at any time during the second Employment Year, then Executive
shall be entitled to receive (a) the full Performance Bonus Executive would have
been entitled to receive pursuant to Section 4.2 above if Executive had remained
employed hereunder for all of such second Employment Year, (b) two-thirds (2/3)
of the Performance Bonus Executive would have been entitled to receive pursuant
to Section 4.2 above if Executive had been employed hereunder for all of the
third Employment Year and (c) one-third (1/3) of the Performance Bonus Executive
would have been entitled to receive pursuant to Section 4.2 above if Executive
had been employed hereunder for all of the fourth Employment Year. As used
herein, the "CAP AMOUNT" means the maximum amount that could be paid to
Executive pursuant hereto with no part of such amount being subject to
disallowance or exclusion as a deduction, pursuant to Part IX or any other
provision of the Internal Revenue Code of 1986, as amended (the "CODE"), by
Employer in determining its net income subject to taxation under the Code or by
NAC in determining its consolidated net income subject to taxation under the
Code.
6.2 Termination by Reason of Death. If the Employment Period is terminated
by death as contemplated by Section 5.5 hereof, Employer shall, within thirty
(30) days following the effective date of termination, pay to Executive's estate
(to the extent the same has not already been paid) Executive's base salary
through the effective date of termination plus Executive's base salary for an
additional ninety (90) days.
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6.3 Certain Other Terminations. If the Employment Period is terminated
pursuant to the provisions of Section 5.2 or 5.4 hereof, Employer shall, within
thirty (30) days following the effective date of termination, pay to Executive
(to the extent the same has not already been paid) his base salary through the
effective date of termination. Employer shall have no obligation to continue any
other benefits provided for in Section 4 hereof or otherwise past the effective
date of termination.
6.4 No Other Termination Compensation. Executive shall not, except as set
forth in this Section 6, be entitled to any compensation or other consideration
following termination of the Employment Period.
6.5 Mitigation of Damages. In the event of any termination of Executive's
employment by Employer, Executive shall not be required to seek other employment
to mitigate damages, and any income earned by Executive from other employment or
self-employment shall not be offset against any obligations of Employer to
Executive under this Agreement. Employer's obligations hereunder and Executive's
rights to payment shall not be subject to any right of set-off or other
deduction by Employer not in the nature of customary withholding, other than in
any judicial proceeding or arbitration.
7. PROFESSIONAL LIABILITY INSURANCE; INDEMNIFICATION
7.1 Insurance. Employer will provide coverage for Executive under a
director and officer professional liability insurance policy of Employer or NAC.
7.2 Indemnification. Employer shall indemnify Executive to the fullest
extent permitted by law in effect as of the date hereof, or as hereafter
amended, against all costs, expenses, liabilities and losses (including, without
limitation, reasonable attorneys' fees, judgments, fines, penalties, ERISA
excise taxes, penalties and amounts paid in settlement) reasonably incurred by
Executive in connection with a Proceeding (as hereinafter defined). For the
purposes of this section, a "PROCEEDING" shall mean any action, suit or
proceeding, whether civil, criminal, administrative or investigative, if
Executive is made, or is threatened to be made, a party to, or a witness in,
such action, suit or proceeding by reason of the fact that he is or was an
officer, director or employee of Employer (or any subsidiary thereof) or is or
was serving as an officer, director, member, employee, trustee or agent of any
other entity at the request of Employer.
(a) Notification and Defense of Claim. Promptly after receipt by Executive
of notice of the commencement of any Proceeding, Executive will, if a claim in
respect thereof is to be made against Employer under this Agreement, notify
Employer in writing of the commencement thereof, but the omission to so notify
Employer will not relieve Employer from any liability that it may have to
Executive otherwise than under this Agreement. Notwithstanding any other
provision of this Agreement, with respect to any such Proceeding as to which
Executive gives notice to Employer of the commencement thereof:
(i) Employer will be entitled to participate therein at its own
expense; and
(ii) Except as otherwise provided in this Section 7.2(a)(ii), to the
extent that it may wish, Employer, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof, with
counsel selected by Employer and approved by Executive, with such approval not
to be unreasonably withheld or delayed. After notice from Employer to Executive
of its election to so assume the defense thereof, Employer shall not be liable
to Executive under this Agreement for any legal or other expenses subsequently
incurred by Executive in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Executive
shall have the right to employ Executive's own counsel in such Proceeding, but
the fees and expenses of such counsel incurred after notice from Employer of its
assumption of the defense thereof shall be at the expense of Executive unless
(a) the employment of counsel by Executive has been authorized in writing by
Employer, (b) Executive shall have reasonably concluded that there may be a
conflict of interest between Employer and Executive in the conduct of the
defense of such
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Proceeding (which conclusion shall be deemed reasonable if, without limitation,
such action shall seek any remedy other than money damages and Executive would
be personally affected by such remedy or the carrying out thereof) or (c)
Employer shall not in fact have employed counsel to assume the defense of the
Proceeding, in each of which cases the reasonable fees and expenses of counsel
retained by Executive shall be at the expense of Employer. Employer shall not be
entitled to assume the defense of any Proceeding brought against Executive by or
on behalf of Employer or as to which Executive shall have reached the conclusion
provided for in clause (b) above.
8. CONFIDENTIALITY
Unless otherwise required by law or judicial process, Executive shall
retain in strict confidence during the Employment Period and after termination
of Executive's employment with Employer all confidential or proprietary
information known to Executive concerning NAC or Employer or any direct or
indirect subsidiary or parent of NAC and/or any aspect of the businesses of NAC
or Employer or any such subsidiary or parent. The obligations of Executive
pursuant to this Section 8 shall survive the expiration or termination of this
Agreement for any reason whatsoever.
9. MUTUAL NON-DISPARAGEMENT
Subject to Executive's compliance with this Agreement, Employer shall not
make any oral or written statement about Executive that is intended or
reasonably likely to disparage Executive or otherwise degrade his reputation in
the business or legal community. Subject to Employer compliance with this
Agreement, Executive shall not make any oral or written statement about Employer
(or NAC or any other affiliate of Employer) that is intended or reasonably
likely to disparage Employer (or NAC or any other affiliate of Employer) or
otherwise degrade the reputation of Employer (or NAC or any other affiliate of
Employer) in the business or legal community.
10. FOREIGN CORRUPT PRACTICES ACT
Executive agrees to comply in all material respects with the applicable
provisions of the U.S. Foreign Corrupt Practices Act of 1977 ("FCPA"), as
amended, which provides generally that under no circumstances will foreign
officials, representatives, political parties or holders or public offices be
offered, promised or paid any money, remuneration or things of value, or
provided any other benefit, direct or indirect, in connection with obtaining or
maintaining contracts. When any representative, employee, agent or other
individual or organization associated with Executive is required to perform any
obligation related to or in connection with this Agreement, the substance of
this Section 10 shall be imposed upon such person and included in any agreement
between Executive and any such person. Failure by Executive to comply in all
material respects with the provisions of the FCPA (other than an inadvertent
violation on the basis of advice from counsel to Employer that the conduct in
question is not a violation) shall constitute a material breach of this
Agreement and shall entitle Employer to terminate Executive's employment for
Cause.
11. SUCCESSORS; BINDING AGREEMENT
This Agreement and all rights of Executive hereunder shall inure to the
benefit of and be enforceable by Executive and Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees. If Executive should die while any amounts would still be payable to
him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other beneficiary or, if there be no such
beneficiary, to Executive's estate.
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12. SURVIVORSHIP
The respective rights and obligations of the Parties shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
13. MISCELLANEOUS
13.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and shall be given as
set forth in Section 10.2 of the Merger Agreement.
13.2 Withholding of Taxes. Employer is authorized to withhold (from any
compensation or benefits payable hereunder to Executive) such amounts for income
tax, social security, unemployment compensation and other taxes as shall be
necessary or appropriate in the reasonable judgment of Employer to comply with
applicable laws and regulations.
13.3 Inventions; Work for Hire. Executive hereby agrees to assign, and does
hereby assign, to Employer all of Executive's right, title and interest in and
to any and all ideas, concepts, know-how, techniques, processes, inventions,
discoveries, developments, works of authorship, innovations and improvements
(collectively "INVENTIONS"), whether patentable or subject to potential
copyrights or not, that meet either or both of the following criteria: (A) such
Inventions are conceived, made or developed in whole or in part by Executive
(whether alone or in concert with others) at any time during the Employment
Period, excepting only those that (i) Executive develops during the Employment
Period entirely on Executive's own time without using any employees, services,
equipment, supplies, facilities or confidential or proprietary information of
Employer or any of its affiliates and (ii) do not relate to, and are not useable
in connection with, any Employer Business (as hereinafter defined); or (B) such
Inventions (i) were or are conceived, made or developed by Executive (whether
alone or in concert with others), whether prior to or during the Employment
Period, and (ii) relate to, or are useable in connection with, any Employer
Business; provided, however, that the foregoing shall not apply or extend to any
Excluded Works (as defined below). Executive agrees to promptly inform and
disclose all Inventions to Employer in writing and with respect to those
Inventions that Executive is required to assign to Employer hereunder to provide
all assistance reasonably requested by Employer in the preservation of
Employer's interests in those Inventions (such as by executing documents,
testifying, etc.), such assistance to be provided at Employer's expense but
without additional compensation to Executive. Executive agrees that any work
prepared by Executive during the Employment Period, which work is subject to
assignment under this Section 13.3 and is eligible for United States copyright
protection or protection under the Universal Copyright Convention, the Berne
Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a
"work made for hire". In the event that any such work is deemed not to be a
"work made for hire," Executive hereby assigns all right, title and interest in
and to the copyright in such work to Employer and agrees to provide all
assistance reasonably requested in the establishment, preservation and
enforcement of Employer's copyright in such work, such assistance to be provided
at Employer's expense but without any additional compensation to Executive. As
used herein, "EMPLOYER BUSINESS" means any of the following: (I) any business
that was conducted or proposed to be conducted by ORA prior to the date hereof
or is conducted or proposed to be conducted by OMI or any direct or indirect
subsidiary of OMI at any time during the period Executive is employed by any NAC
Company (as hereinafter defined) or (II) any other business that is conducted or
proposed to be conducted by NAC or any NAC Affiliate (as hereinafter defined) at
any time during the period Executive is employed by any NAC Company, "NAC
COMPANY" means any NAC or any direct or indirect subsidiary of NAC and "NAC
AFFILIATE" means any NAC Company, any joint venture or partnership in which any
NAC Company is a partner or other participant and any Person in which any NAC
Company owns an equity interest equal to or in excess of five percent (5%). As
used herein, "EXCLUDED WORKS" means any publications or other artistic works
that are created or developed by Executive in his non-work time during the
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term of this Agreement and that do not relate to, and are not useable in
connection with, any Employer Business.
13.4 Miscellaneous Provisions. This Agreement is subject to certain
provisions, as to governing law and other matters, as set forth in Article 10 of
the Merger Agreement.
13.5 Dispute Resolution and Arbitration. If any dispute arises between
Employer and Executive regarding or relating to this Agreement and/or any aspect
of Executive's employment relationship with Employer hereunder, the same shall
be resolved in the manner provided for in Section 10.14 of the Merger Agreement.
Notwithstanding anything contained herein or in the Merger Agreement to the
contrary, (A) if any dispute should arise between Employer and Executive as to
whether the Employment Period or Executive's employment hereunder may be
terminated by Employer for Cause or Disability or by Executive for Good Reason,
any Party may, prior to terminating the Employment Period or Executive's
employment hereunder, seek a determination in advance by arbitration as
contemplated by such Section 10.14 as to whether the Employment Period or
Executive's employment hereunder may be terminated by Employer for Cause or
Disability or by Executive for Good Reason and (B) if any dispute should arise
between Employer and Executive as to whether the Employment Period or
Executive's employment hereunder has been terminated for Cause or Disability or
by Executive for Good Reason, any Party may seek a determination by arbitration
as contemplated by such Section 10.14 as to whether the Employment Period or
Executive's employment hereunder has been terminated by Employer for Cause or
Disability or by Executive for Good Reason, and (i) if it is determined pursuant
to such arbitration that the Employment Period or Executive's employment
hereunder has been terminated by Employer other than for Cause or Disability,
then, at the option of Employer exercised by written notice to Executive given
within thirty (30) days following the rendering of such determination, Employer
may reinstate Executive as an employee and President of Employer pursuant to
this Agreement with back pay for the period during which Executive was not
serving as an employee hereunder, and in such event any such termination shall
be deemed cured and rescinded ab initio, (ii) if it is determined pursuant to
such arbitration that the Employment Period or Executive's employment hereunder
has been terminated by Executive other than for Good Reason, then, at the option
of Executive exercised by written notice to Employer given within thirty (30)
days following the rendering of such determination, Executive may elect to be
reinstated as an employee and President of Employer pursuant to this Agreement,
and in such event any such termination shall be deemed cured and rescinded ab
initio (provided, however, that Executive shall not be entitled to any base
salary or other compensation for or during the period from the date of such
termination until he is reinstated hereunder and any bonus or other payment to
which Executive would have been entitled had he not terminated the Employment
Period or his employment hereunder shall be payable to Executive on a pro rata
basis based upon the period of time he was actually employed by Employer), and
(iii) if it is determined pursuant to such arbitration that the Employment
Period or Executive's employment hereunder has been terminated by Executive for
Good Reason, then, if the events, conditions or circumstances that gave rise to
such termination can be cured or remedied by Employer and, within (30) days
following the rendering or such determination, such events, conditions or
circumstances are cured or remedied by Employer and Employer give Executive
written notice of its election to reinstate Executive as an employee and
President hereunder, then Executive shall be reinstated as an employee and
President of Employer pursuant to this Agreement with back pay for the period
during which Executive was not serving as an employee hereunder, and in such
event any such termination shall be deemed cured and rescinded ab initio.
13.6 Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
13.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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13.8 Severability. If any provision of this Agreement, or any part thereof,
is held to be unenforceable, the remainder of such provision and this Agreement,
as the case may be, shall nevertheless remain in full force and effect.
13.9 Entire Agreement and Representation. This Agreement contains the
entire agreement and understanding between Employer and Executive with respect
to the subject matter hereof. No representation or warranty of any kind or
nature relating to Employer or its businesses, or relating to Employer's assets,
liabilities, operations, future plans or prospects has been made by or on behalf
of Employer to Executive. This Agreement supersedes any prior or contemporaneous
agreement (whether written or oral) between the Parties relating to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
OMI COMMUNICATION, INC.
By: _____________________________ _______________________________
NAME: XXXXXX X. XXXXXXX, XX. XXXX XXXXXXX
TITLE: VICE PRESIDENT
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NON-COMPETITION AND NON-SOLICITATION AGREEMENT
----------------------------------------------
NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "AGREEMENT"),
effective as of April 18, 2003 (the "EFFECTIVE DATE"), among XXXX XXXXXXXX
("EXECUTIVE"), National Auto Credit, Inc. ("NAC"), a Delaware corporation, and
OMI Communications, Inc. ("OMI"), a Delaware corporation. Executive, NAC and OMI
are hereinafter sometimes referred to collectively as the "PARTIES" and each as
a "PARTY."
WHEREAS, Executive has entered into a certain Merger Agreement And Plan Of
Reorganization (the "MERGER AGREEMENT"), dated as of April 1, 2003, by an among
NAC, OMI, ORA/Metro Incorporated ("ORA") and Executive providing, inter alia,
for the merger of ORA with and into OMI, as a subsidiary of NAC;
WHEREAS, in order to protect and preserve the investments of NAC and OMI in
ORA, it is appropriate that Executive agree to the matters set forth herein;
WHEREAS, NAC and ORA would not enter into the Merger Agreement without the
protections provided for herein;
WHEREAS, Executive desires to provide the protections provided for herein;
and
WHEREAS, Section 5.2 of the Merger Agreement provides that the Parties will
enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be bound hereby, hereby agree as follows:
1. CONFIDENTIALITY
Unless otherwise required by law or judicial process, Executive shall
retain in the strictest confidence all confidential or proprietary information
known to Executive concerning any of the NAC Companies (as hereinafter defined)
and/or any aspect of the businesses of any NAC Company. The obligations of
Executive pursuant to this Section 1 shall apply both during and after any
period he may be employed by any NAC Company and shall survive the expiration or
earlier termination of any such employment, regardless of any reason for such
expiration or earlier termination. As used herein, the "NAC COMPANIES" means,
collectively, NAC and any direct or indirect subsidiaries of NAC (including,
without limitation, OMI), and "NAC COMPANY" means each or any of the NAC
Companies, as the context may require.
2. NONCOMPETITION
2.1 General. For the duration of the Non-Compete Period (as defined below),
Executive shall not, directly or indirectly, engage in any Competitive Activity
(as defined below). As used herein, "COMPETITIVE Activity" means any of the
following: (A) developing, supervising, directing, administering or managing, or
acting as a consultant with respect to the development, supervision, direction,
supervision or management, of (I) any business that was conducted or
realistically proposed to be conducted by ORA or any subsidiary of ORA prior to
the date hereof or is conducted or realistically proposed to be conducted by OMI
or any subsidiary of OMI at any time during the period Executive is employed by
any NAC Company (any business referred to in this clause (I) is hereinafter
referred to as an "ACQUIRED BUSINESS") or (II) any other business that is
conducted or proposed to be conducted by NAC or any other NAC Affiliate (as
hereinafter defined) (exclusive of OMI and any subsidiary of OMI) at any time
during the period Executive is employed by any NAC Company) (any business
referred to in this clause (II) is hereinafter referred to as an "AFFILIATE
BUSINESS"); (B) the participation,
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directly or indirectly, in any business that is the same as or substantially
similar to, or is or would be competitive with, any Acquired Business or any
Affiliate Business; and (C) becoming an employee, director, officer, consultant,
independent contractor, lecturer or advisor of or to, or otherwise providing
services to, any Person if Executive's duties or services relate in any manner
to developing, supervising, directing, administering or managing any business
that is the same as or substantially similar to, or is or would be competitive
with, any Acquired Business or any Affiliate Business. Nothing contained herein,
however, shall prohibit Executive from acquiring or holding any issue of stock
or securities of any Person that has any securities listed on a national
securities exchange or quoted in the daily listing of over-the-counter market
securities, provided that at no time does he (together with members of his
immediate family, any trust or trusts of which Executive is a trustee and any
trust or trusts of which Executive or any member of his immediate family is a
beneficiary) own more than five percent (5%) of the voting securities of any
such Person. The obligations of Executive pursuant to this Section 2 shall apply
for the full duration of the Non-Compete Period, including following the
expiration or earlier termination of his employment by any NAC Company,
regardless of any reason for such expiration or earlier termination. As used
herein, "NAC AFFILIATE" means any NAC Company, any joint venture or partnership
in which any NAC Company is a partner or other participant and any Person in
which any NAC Company owns an equity interest equal to or in excess of five
percent (5%).
2.2 Non-Compete Period. As used herein, "NON-COMPETE PERIOD" means the
period commencing on the date hereof and extending through the second
anniversary of the later to occur of (a) the date Executive's employment by any
NAC Company expires or is terminated or (b) the date on which the Stockholder's
Note (as defined in the Merger Agreement) is paid in full or otherwise
discharged or, if earlier, the date on which the Stockholder's Note becomes due
and payable in accordance with its terms.
3. NONSOLICITATION
During the term of his employment by any of the NAC Companies, unless
otherwise expressly agreed to in writing by NAC, Executive shall not, directly
or indirectly, (a) solicit to enter into the employ of any other Person, or
hire, any individual who is, or who within the prior six (6) months has been, an
NAC Employee (which, for the purposes of this Agreement, means any employee of
any NAC Company), (b) solicit, hire or take away, or attempt to solicit, hire or
take away, any Person who or that is, or who or that has been, an NAC Customer
(which, for the purposes of this Agreement, means any client or customer of any
NAC Company) or (c) encourage any NAC Customer to terminate its relationship
with any NAC Company. Following the expiration or earlier termination of his
employment by the NAC Companies and during the balance of the Non-Compete
Period, unless otherwise expressly agreed to in writing by NAC, Executive shall
not, directly or indirectly, (a) solicit to enter into the employ of any other
Person, or hire, any individual who is, or who within the one (1) year prior to
the expiration or earlier termination of such employment has been, an NAC
Employee, (b) solicit, hire or take away, or attempt to solicit, hire or take
away, any Person that is, or that has been, an NAC Customer or (c) encourage any
such NAC Customer to terminate its relationship with any NAC Company. The
obligations of Executive pursuant to this Section 3 shall apply for the full
duration of the Non-Compete Period, including following the expiration or
earlier termination of his employment by any NAC Company, regardless of any
reason for such expiration or earlier termination.
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4. SUCCESSORS; BINDING AGREEMENT
This Agreement and all rights of NAC and OMI hereunder shall inure to the
benefit of and be enforceable by NAC and OMI and their successors and
assigns. Executive acknowledges and agrees that the scope and duration of
this Agreement and the restrictions and protections contained herein are
reasonable, necessary and appropriate in order to protect the investment
OMI and NAC are making in ORA as provided for in, and contemplated by, the
Merger Agreement, that OMI and NAC would not make such investment but for
such restrictions and protections and that Executive has, as part of the
Merger, been fully and fairly compensated for entering into this Agreement
and agreeing to such restrictions and protections.
5. MISCELLANEOUS
5.1 Notices. Any notice, consent or authorization required or permitted to
be given pursuant to this Agreement shall be in writing and be given as provided
in Section 10.2 of the Merger Agreement.
5.2 Miscellaneous Provisions. This Agreement is subject to certain
provisions, as to governing law and other matters, as set forth in Article 10 of
the Merger Agreement.
5.3 Headings. All descriptive headings in this Agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
5.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
5.5 Severability. If any provision of this Agreement, or any part thereof,
is held to be unenforceable, the remainder of such provision and this Agreement,
as the case may be, shall nevertheless remain in full force and effect.
5.6 Entire Agreement and Representation. This Agreement contains the entire
agreement and understanding among the Parties with respect to the subject matter
hereof. This Agreement supersedes any prior or contemporaneous agreement
(whether written or oral) between or among the Parties relating to the subject
matter hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
OMI COMMUNICATION, INC.
By: _____________________________ ___________________________
Name: Xxxxxx X. Xxxxxxx, Xx. XXXX XXXXXXX
Title: Vice President
NATIONAL AUTO CREDIT, INC.
By: _____________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Exec. V. P. and CFO
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