SEVERANCE PACKAGE AND RELEASE AGREEMENT
EXHIBIT
10.2
This
Severance Package and Release Agreement (“Agreement”) is made and entered into
between United PanAm Financial Corporation, United Auto Credit Corporation,
and
their officers, directors, shareholders, employees, representatives, attorneys,
agents, affiliates and subsidiaries (hereinafter collectively referred to as
“the Company”) and Xxxxx X. Xxxxxxxxxxxxx (“Xx. Xxxxxxxxxxxxx”). The purpose of
this Agreement is to settle and compromise any and all disputes and
controversies of any nature existing between the parties, including, but not
limited to, any claims arising out of Xx. Xxxxxxxxxxxxx’x employment with, and
separation from, the Company.
Separation
of Employment.
The
cessation of Xx. Xxxxxxxxxxxxx’x employment with the Company was effective July
25, 2008. Xx. Xxxxxxxxxxxxx has received all
salary and benefits up to and including July 28, 2008. Xx. Xxxxxxxxxxxxx has
also received payment for all accrued and unused vacation as of July 28, 2008,
less applicable state and federal taxes and withholdings. Xx. Xxxxxxxxxxxxx
confirms that she has previously submitted any and all outstanding
business-related expenses for reimbursement and will receive payment from the
Company for such expenses by close of business on July 30, 2008. In addition,
within 30 days of July 25, 2008, Xx. Xxxxxxxxxxxxx has the right to exercise
Twenty Thousand One Hundred (20,100) options that have vested of Company common
stock. Xx. Xxxxxxxxxxxxx has zero (0) shares of restricted Company common stock
that have vested as of July 25, 2008. In selling any shares of Company common
stock, Xx. Xxxxxxxxxxxxx shall be responsible for complying with Rule 144 of
the
Securities Act of 1933 for a period of 90 days from July 25, 2008. In addition,
Xx. Xxxxxxxxxxxxx understands that any purchase or sale of Company common stock
made by her for six months prior to July 25, 2008 could potentially be matched
to a purchase or sale of Company common stock made by her for six months after
July 25, 2008 pursuant to Section 16 of the Securities Exchange Act of 1934.
Xx.
Xxxxxxxxxxxxx shall also be responsible for complying with any reporting
obligations under Section 16 of the Securities Exchange Act of
1934.
Termination
from Positions.
Effective as of July 25, 2008, Xx. Xxxxxxxxxxxxx has been terminated from her
positions as an officer, trustee and any other position currently held at the
Company and any subsidiary of the Company without cause.
1. Severance
Payment, Target Bonus and COBRA Payments.
After
execution of this Agreement, and after the return of all Company property as
described in Paragraph 2 below, the Company agrees to pay Xx. Xxxxxxxxxxxxx:
(1)
xxxxxxxxx pay in an amount equivalent to twelve (12) months of her current
base
salary or Three Hundred Thirty Five Thousand Dollars ($335,000), less applicable
state and federal taxes and withholdings; and (2) the Target Bonus in the amount
of Thirty-Three Thousand Five Hundred Dollars ($33,500), less applicable state
and federal taxes and withholdings. The severance pay and Target Bonus amounts
shall be wired to Xx. Xxxxxxxxxxxxx’x personal account. The Company further
agrees to pay to the COBRA Administrator six (6) months of Xx. Xxxxxxxxxxxxx’x
COBRA premium payments for her and her spouse in the total amount of Six
Thousand, Five Hundred Sixty-Five and 80/100 ($6,565.80). Thereafter Xx.
Xxxxxxxxxxxxx shall be solely responsible for her COBRA payments should she
choose to continue such benefits coverage. The Company shall not be providing
Xx. Xxxxxxxxxxxxx any separate or additional notice with respect to this COBRA
payment obligation.
2. Return
of Property.
Except
as otherwise discussed herein, Xx. Xxxxxxxxxxxxx agrees immediately to return
to
the Company all property of the Company which she has in her custody or control
such as keys, key cards, passwords, office equipment, forms, manuals, customer
files, personnel files, or other confidential or proprietary materials of the
Company. The Company agrees to allow Xx. Xxxxxxxxxxxxx to keep the Dell PC
purchased by the Company for Xx. Xxxxxxxxxxxxx that she has maintained at her
residence. Xx. Xxxxxxxxxxxxx represents that there is no Company-related
information and software on that computer.
3. Release
of Known and Unknown Claims.
In
consideration of the payments outlined above and the further agreements set
forth below, and excepting only the obligations created in this letter
Agreement, Xx. Xxxxxxxxxxxxx hereby agrees unconditionally to release and
discharge United Pan Am Financial Corporation,
United Auto Credit Corporation, their respective current and former officers,
directors, shareholders, employees, representatives, attorneys and agents,
as
well as their predecessors, parents, subsidiaries, affiliates, divisions, and
successors in interest, of and from any and all claims, demands, liabilities,
suits or damages of any type or kind, whether known or unknown, including,
but
not limited to, any claims or demands arising from or in any way related to
Xx.
Xxxxxxxxxxxxx’x employment with or separation from the Company on or before the
date of the execution of this Agreement. Xx. Xxxxxxxxxxxxx also hereby releases
the Company from any claims made to recover additional taxes paid under Internal
Revenue Code Section 409A.
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This
release specifically includes, without limitation, all claims for wrongful
discharge, breach of express or implied contract, defamation, fraud,
misrepresentation, discrimination, harassment, breach of implied covenant of
good faith and fair dealing, compensatory and/or other relief relating or in
any
way connected with the terms, conditions, and benefits of employment,
discrimination based on race, color, sex, religion, national origin, age,
marital status, handicap and medical condition, and/or all claims arising under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et
seq.,
the Age
Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit
Protection Act, the California Fair Employment and Housing Act, the California
Labor Code, the Family and Medical Leave Act, the California Family Rights
Act,
COBRA, the Employee Retirement Income Security Act of 1974 (“ERISA”), and/or
violations of any other statutes, rules, regulations or ordinances whether
federal, state or local.
It
is
understood and agreed that this release extends to all claims of whatever
nature, known or unknown, and includes all rights under Section 1542 of the
Civil Code of California, which provides as follows:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in her or her favor at the time of executing the release, which if known
by him or her must have materially affected her or her settlement with the
debtor.
Thus,
notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of all claims, Xx.
Xxxxxxxxxxxxx expressly acknowledges that this Agreement also includes in its
effect, without limitation, all claims that Xx. Xxxxxxxxxxxxx does not know
or
suspect to exist in her favor at the time of execution hereof, and that this
Agreement contemplates the extinguishment of any and all such claim(s).
Notwithstanding the foregoing, nothing in this Agreement shall prevent Xx.
Xxxxxxxxxxxxx from filing a charge with any federal, state or administrative
agency, but Xx. Xxxxxxxxxxxxx agrees not to participate in, and waives any
rights with respect to, any monetary or financial relief arising from any such
proceeding that relates to the matters released by this Agreement.
4. No
Admission of Liability.
By
entering into this Agreement, the Company and Xx. Xxxxxxxxxxxxx do not suggest
or admit to any liability to each other or that they violated any law or any
duty or obligation to the other party.
5. Confidentiality.
Xx.
Xxxxxxxxxxxxx agrees that neither she nor her agents or representatives will
disclose, disseminate and/or publicize, or cause or permit to be disclosed,
disseminated or publicized, the existence of this Agreement, any of the terms
of
this Agreement, or any claims or allegations which she believes could have
been
made or asserted against the Company, directly or indirectly, specifically
or
generally, to any person, corporation, association or governmental agency or
other entity, or participate, cooperate or assist any person(s) with respect
to
any claim they may have against the Company, except: (1) to the extent necessary
to report income to appropriate taxing authorities; (2) to members of her
immediate family; (3) in response to an order of a court of competent
jurisdiction or subpoena issued under the authority thereof; or (4) in response
to any inquiry or subpoena issued by a state or federal governmental agency;
provided, however, that notice of receipt of such judicial order or subpoena
shall be immediately communicated to the Company telephonically, and confirmed
immediately thereafter in writing, so that the Company will have the opportunity
to assert what rights it has to non-disclosure prior to the response to the
order, inquiry or subpoena. Xx. Xxxxxxxxxxxxx also agree to maintain all
non-public information regarding the Company while at the Company, including
but
not limited to, information regarding the Company’s customers, officers,
directors, employees, financial and business information, and internal Company
policies or procedures as strictly confidential and shall not disclose them
to
third parties.
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In
the
event that the Human Resources Department of the Company receives an inquiry
into Xx. Xxxxxxxxxxxxx’x employment with United Auto Credit Corporation related
in any way to a future employment opportunity for Xx. Xxxxxxxxxxxxx, the Company
will confirm, in writing, the dates of employment of Xx. Xxxxxxxxxxxxx, the
last
position she held with the Company, and her last salary. United PanAm Financial
Corp. will announce the termination of Xx. Xxxxxxxxxxxxx as Executive Vice
President and Chief Operating Officer of the Company and any positions held
with
subsidiaries. The parties have agreed that the Company will provide the
following information to the California Employment Development Department:
“The
Company terminated Xx. Xxxxxxxxxxxxx because it concluded it required a
different skill set for the position on a going forward basis.” The Company will
not contest Xx. Xxxxxxxxxxxxx’x receipt of unemployment. In return, Xx.
Xxxxxxxxxxxxx will not provide or disclose any information, adverse or
otherwise, regarding matters related to this Agreement or the Company to any
other party or entity she is seeking employment with, nor with any current
or
past employees or vendors of the Company.
Any
violation of the confidentiality provision contained in this Agreement by Xx.
Xxxxxxxxxxxxx shall be considered a material breach of this Agreement.
7. Employee
Contact. At
no
time shall Xx. Xxxxxxxxxxxxx contact any employee who is currently employed
by
United Auto Credit Corporation or United Pan Am Financial Corporation during
normal business hours for any reason. Should Xx. Xxxxxxxxxxxxx maintain personal
relationships with United Auto Credit Corporation or United Pan Am Financial
Corporation employees outside of employment with the Company, Xx. Xxxxxxxxxxxxx
shall at no time discuss the terms of this Agreement with current employees
of
the Company.
8. Arbitration.
Any and
all disputes, controversies or claims arising under or in any way relating
to
the interpretation, application or enforcement of this Agreement, Xx.
Xxxxxxxxxxxxx’x employment with the Company, any claim for benefits, or her
separation of employment from the Company, including without limitation any
claim by her that she was fraudulently induced to enter into this Agreement,
or
regarding the enforceability or interpretation of this Agreement, shall be
settled by final and binding arbitration under the auspices and rules of JAMS
or
other mutually agreeable alternative dispute resolution service in accordance
with that service’s rules for the resolution of employment disputes. Any such
arbitration must be filed in Orange, California, and the laws of the State
of
California shall control except where federal law governs. The prevailing party
in any such arbitration proceeding shall be entitled to reasonable costs and
attorney’s fees. The award of the arbitrator is to be final and enforceable in
any court of competent jurisdiction.
9. Waiver
and Modification.
The
failure to enforce any provision of this Agreement shall not be construed to
be
a waiver of such provision or to affect either the validity of this Agreement
or
the right of any party to enforce the Agreement. This Agreement may be modified
or amended only by a written agreement executed by Xx. Xxxxxxxxxxxxx and a
properly authorized designee of the Board of Directors of the
Company.
10. Integration.
This
Agreement constitutes a single, integrated written contract expressing the
entire agreement of the parties hereto relative to the subject matter hereof.
No
covenants, agreements, representations, or warranties of any kind whatsoever
have been made by any party hereto. All prior discussions and negotiations
have
been and are merged and integrated into, and are superseded by, this
Agreement.
11. Severability.
In the
event that any provision of this Agreement should be held to be void, voidable,
or unenforceable, the remaining portions hereof shall remain in full force
and
effect.
12. Governing
Law.
This
Agreement shall be construed in accordance with, and be governed by the laws
of
the State of California.
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13. Right
to an Attorney, Time to Consider.
Xx.
Xxxxxxxxxxxxx has been advised of her right to consult with counsel of her
choosing with respect to this Agreement. Xx. Xxxxxxxxxxxxx acknowledges that
she
has had sufficient time to consider the Agreement and to consult with counsel
and that she does not desire additional time.
PLEASE
READ CAREFULLY. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS.
UNITED
PANAM FINANCIAL CORPORATION
/S/ Xxxxx X. Xxxxxxx | Dated: July 30, 2008 | |
By: Xxxxx X. Xxxxxxx |
I
have carefully read this Agreement and understand that it contains a release
of
known and unknown claims. I acknowledge and agree to all of the terms and
conditions of this Agreement. I further acknowledge that I enter into this
Agreement voluntarily with a full understanding of its
terms.
/S/ Xxxxx Xxxxxxxxxxxxx | Dated: July 30, 2008 | |
Xxxxx
Xxxxxxxxxxxxx
|
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