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Exhibit 10.1
November 4, 1999
Xx. Xxxx Xxxxxx
00000 Xxxxx 0xx Xxxxx
Xxxxxxx, XX 00000
Dear Xxxx:
This letter will serve to confirm the agreement which we have reached
with respect to (i) your resignation from MCM Capital Group, Inc. (the
"Company"), and its subsidiaries on November 15, 1999 (the "Effective Date") and
(ii) your rendering consulting services to the Company and its subsidiaries
beginning on the Effective Date. The payments to be made to you under this
Letter Agreement shall be made in lieu of any other amount that would otherwise
be payable to you pursuant to any other agreement or understanding.
1. Effective as of the Effective Date, you are resigning as a Senior
Vice President of the Company and of Midland Credit Management, Inc., a wholly
owned subsidiary ("Midland Credit") of the Company, and as an officer and
employee of any other direct and indirect subsidiaries or affiliates of the
Company (the Company and all such subsidiaries and affiliates being
collectively, the "MCM Group"), which you serve in any such capacity. You will
receive your normal base salary through the Effective Date and you will have no
employment relationship with any member of the MCM Group subsequent to the
Effective Date. You are entitled to reimbursement of all reasonable, actual,
ordinary and necessary travel and other reasonable business expenses that you
have incurred as the necessary part of discharging your duties as an employee of
the MCM Group prior to the
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Effective Date. Midland Credit will reimburse you for such expenses to the
extent heretofore unreimbursed, subject to your submission of reasonable and
appropriate documentation to Midland Credit.
2. Commencing on the Effective Date, you will become a consultant to
the MCM Group until April 30, 2000 (such period is referred to herein as the
"Consulting Period"), and subject to Paragraphs 8-11 below, you will be paid
your former salary of $115,000 per year or $4,423.07 per pay period (payable in
bi-weekly installments), in consideration thereof through the Consulting Period.
During the Consulting Period you agree to make yourself available to the MCM
Group for: (i) up to twenty hours of consulting per month until such time as you
commence full-time employment with another employer and (ii) up to five hours of
consulting per month if you are employed full-time by another employer.
3. No later than the Effective Date, you will return to the Company all
MCM Group owned or supplied property, such as credit cards, computers, fax
machines, pagers, cellular phones, printers, files, etc.
4. Your eligibility to participate in Midland Credit's 401(k) Plan will
cease as of the Effective Date; however, you may, in your sole discretion, keep
your account in Midland Credit's 401(k) Plan, if permitted, or remove all or
part thereof at any time or times in accordance with the terms of such 401(k)
Plan.
5. You and your family members will be entitled, at your election, for
a period of 18 months commencing on the Effective Date, to continue your
coverage under all health and medical insurance policies, at your own cost,
pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended, or
under Part 6 of Title I of the Employee Retirement Income Security Act of
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1974, as amended, to the extent such coverage is available; provided, however,
that the Company shall pay the cost of such coverage until the earlier of (i)
your being a participant entitled to benefits in a medical plan with another
employer; (ii) the date you become covered or eligible for coverage under
Medicare or any other medical benefit plan; or (iii) the end of the Consulting
Period. All other benefits provided by the Company (including, without
limitation, long-term disability and life insurance) shall terminate on the
Effective Date.
6. You acknowledge that as of the Effective Date you will have no
unused vacation time remaining for 1999.
7. Your obligation to provide part-time consulting services to the MCM
Group shall not prevent you from accepting other part-time or full-time
employment. However, you agree promptly to notify MCM Capital if you accept
other full-time employment and the date such employment is to begin. All
reasonable, actual, ordinary and necessary travel expenses incurred by you in
providing the consulting services hereinunder will be borne by the Company,
subject to your submission of reasonable and appropriate documentation.
8. You agree, in consideration of this Letter Agreement, that you will
(i) refrain from making any statement written or oral which is detrimental to
the best interests of the members of the MCM Group and/or their respective
shareholders, officers, employees and directors, and (ii) treat as confidential
and not disclose (a) the terms of this Letter Agreement (except in a proceeding
to enforce the terms of this Letter Agreement) or (b) the affairs of the members
of the MCM Group and their respective shareholders, officers, employees and
directors. You will not, for a period of eighteen (18) months after the
Effective Date, without prior written consent of the Company, divulge, furnish
or make known or accessible to, or use for the benefit of, anyone other than the
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MCM Group, any information of a confidential nature relating in any way to the
business of the MCM Group, or any of their respective direct business customers,
unless (i) you are required to disclose any such information by judicial or
administrative process, or, in the opinion of your counsel, by other
requirements of law, (ii) such information is in the public domain through no
fault of you or (iii) such information has been lawfully acquired by you from
other sources unless you know that such information was obtained in violation of
an agreement of confidentiality. You agree that in addition to any other remedy
provided at law or in equity or in this Letter Agreement, the Company shall be
entitled to a temporary restraining order and both preliminary and permanent
injunctions restraining you from violating any provision of this Paragraph 8.
Additionally, you agree that on or before the Effective Date you will return to
the MCM Group any and all confidential and proprietary information or any other
property of the MCM Group that is in your possession.
9. In consideration of the value referred in Paragraph 2 above and 12
below, you hereby covenant not to xxx or pursue any litigation (or file any
charge with any Federal, state or local administrative agency) against, and
waive, release and discharge each member of the MCM Group, their affiliates,
assigns, subsidiaries, parents, predecessors and successors, and the
shareholders, employees, officers, directors, representatives and agents or any
of them, from any and all charges or causes of action you may have against any
of them, including, but not limited to any claims, charges or causes of action
related to employment or termination of employment or any term or condition of
that employment under Federal, state and local statutory and common law,
including, but not limited to, any and all claims, charges or actions that arise
out of or relate in any way to the Age Discrimination in Employment Act of 1967,
as amended, the Older Workers Benefit Protection Act, Title VII of the Civil
Rights of 1964, as amended, all claims under Federal, state or local laws
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for express or implied breach of contracts, wrongful discharge, defamation,
intentional infliction of emotional distress, race, sex, age, national origin,
color, marital status, handicap, or other discrimination, and any related claims
for attorneys' fees and costs. This covenant, waiver, release and discharge of
claims expressly excludes any and all rights to indemnification which you may
have under the Certificate of Incorporation, by-laws, or similar charter
documents of any member of the MCM Group.
10. You acknowledge and agree that you are or may be exclusively liable
for the payment of certain Federal, state, local and foreign taxes that may be
due as a result of the payments to be made to you under this Letter Agreement
(including, without limitation, the payments referred to in Paragraph 2 above);
provided, however, the Company shall be entitled to withhold from any amounts
payable under this Letter Agreement such amounts that it determines in its sole
discretion is required by law or regulation to withhold in respect of any such
payment or such greater amounts as you may request. If the MCM Group or any of
its affiliates are required at any time to pay any monies in payment of your tax
obligations, including interest, penalties and other additions, in respect of
the payments made under this Letter Agreement, you agree to indemnify and hold
harmless the MCM Group, its affiliates and agents or employees for payment of
any such taxes or other amounts. In addition to the foregoing, you agree that
the Company, in its sole discretion, may deduct from any amounts payable under
this Letter Agreement (a) any amount of garnished earnings which would have been
withheld from your pay, if the Company has been garnishing your earnings
pursuant to an order of garnishment, child support or tax lien and (b) to the
extent permitted by law, any amounts you owe to the Company.
11. You acknowledge that you have been offered the opportunity and have
been advised
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in writing to consult with an attorney regarding the terms of this
Letter Agreement before signing this Letter Agreement. You further acknowledge
that you otherwise would have been provided a period of at least 21 days within
which to consider the terms of this Letter Agreement, but that you have decided,
in a knowing and voluntary manner, in consideration of the value referred to in
Paragraphs 2 above and 12 below, to sign this Letter Agreement before the
expiration of such 21 day period. This Letter Agreement shall become effective
only if you elect not to rescind this Letter Agreement. You will have seven days
following the execution of this Letter Agreement to rescind the Agreement by
notifying the Secretary of the Company in writing of your decision to rescind.
You further agree that if you decide to rescind this Letter Agreement, MCM Group
shall be relieved of all of its obligations hereunder, including without
limitation, MCM Group's obligation to make the payments and provide the benefits
specified in Paragraphs 2 and 5.
12. The Company, on behalf of itself and each member of the MCM Group,
hereby waives, releases and discharges you from any and all claims any of them
may have against you based on facts known to any current executive officer of
the Company, including, but not limited to, any claims related to your
employment or any term or condition of that employment. This discharge and
release includes, among other things, all claims under Federal, state or local
laws for express or implied breach of contract, failure to perform employment
duties, defamation and any related claims for attorneys' fees and costs;
provided, however, that nothing contained in this discharge and release shall
release you from any obligations arising under this Letter Agreement.
13. You agree that you will cooperate with the members of the MCM Group
in connection with all litigations relating to the activities of the Company and
its affiliates during the period of your employment with the Company including,
without limitation, being available to xxxx
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depositions and to be a witness at trial, help in preparation of any legal
documentation and providing affidavits and any advice or support that the
Company or any affiliate thereto may request of you in connection with such
claims.
14. Effective as of the Effective Date, the Employment Letter dated as
of February 13, 1998 (the "Employment Agreement") by and between Midland Credit
and you shall be deemed to be terminated in all respects.
15. This Letter Agreement represents the entire agreement between you
and the Company with respect to matters referred to herein and supersedes all
prior agreements, whether written or oral, with respect thereto. This Letter
Agreement and the rights and duties of the parties hereunder shall be construed
and interpreted in accordance with the laws of the State of Arizona applicable
to agreements made and to be performed entirely within such State. If any
section, paragraph, sentence, clause, or phrase contained in this Letter
Agreement shall become illegal, null, or void, or shall be found to be against
public policy, for any reason, or shall be held by any court of competent
jurisdiction to be illegal, null, or void, or found to be against public policy,
the remaining sections, paragraphs, sentences, clauses, or phrases contained in
this Letter Agreement shall not be affected thereby. One or more waivers of a
breach of any provision hereunder by any party to this Letter Agreement shall
not be deemed to be a waiver of any proceeding or subsequent breach hereunder.
16. This Letter Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns. This Letter Agreement and
your rights hereunder may not be assigned by you.
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17. Neither the negotiation nor the execution of this Letter Agreement
shall constitute or operate as an acknowledgment or admission of any kind by the
MCM Group that it violated or failed to comply with any provision of federal,
state, or local law.
18. The parties agree that they will not seek to introduce this Letter
Agreement as evidence for any purpose in any proceeding of any kind, other than
a proceeding to enforce the terms of this Letter Agreement.
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If this Letter Agreement is in accordance with your understanding of
the entitlements and obligations pertaining to the foregoing, please sign two
copies of this Letter Agreement in the space provided and return one copy to us.
Very truly yours,
MCM CAPITAL GROUP, INC.
By: /s/ Xxxxxx X. Xxx
_________________________________
Name: Xxxxxx X. Xxx
Title: President and Chief Executive Officer
MIDLAND CREDIT MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxx
___________________________________
Name: Xxxxxx X. Xxx
Title: President and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Xxxx Xxxxxx
___________________________
Xxxx Xxxxxx
Date: November 4, 1999
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