Exhibit 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of November 1, 1997, by and between XXXX X. XXXXXXXX ("Employee") and JRJ
INVESTMENTS, INC. ("Employer").
AGREEMENT
IN CONSIDERATION of the mutual covenants hereinafter made by each party
to the other, the Employer and the Employee agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee, and Employee
agrees to accept employment with Employer, in accordance with the terms and
provisions of this Agreement.
2. TERM OF EMPLOYMENT. The term of this Agreement shall commence on
November 1, 1997, and shall end on October 31, 2000, unless sooner terminated
in accordance with the terms and provisions of this Agreement.
3. SCOPE OF EMPLOYMENT AND COMPENSATION. Employee will be employed
by Employer as the Parts and Service Director of the dealerships located at
0000 X. Xxxxxxx Xxxx., Xxx Xxxxx, Xxxxxx, and 000 Xxxx Xxxx Xxxxx, Xxxxxxxxx,
Xxxxxx (collectively, the "Dealerships"). As the Parts and Service Director
of the Dealerships, Employee will be responsible for the supervision of the
parts department, the service department and the body shop.
As compensation for the performance of his duties, Employee shall receive
from Employer base compensation ("Base Compensation") of $60,000.00 per year
($5,000.00 per month), to be paid in equal installments consistent with
Employer's established payroll frequency for all employees during the term of
this Agreement. Additionally, Employee shall receive a monthly bonus (the
"Bonus Compensation") of the sum of (a) three percent (3%) of BMW, one
percent (1%) of Jaguar, and one percent (1%) of Land Rover, parts, service,
and body shop net income, as reflected on the respective monthly
Manufacturer's dealership statements, of the Dealerships so long as the
respective BMW, Jaguar, and Land Rover CSI is equal to or greater than the
regional average, and (b) two percent (2%) of the monthly Net Earnings of the
Dealerships. Employee's monthly Bonus Compensation shall be paid within
fifteen (15) days after the end of the month for which such Bonus
Compensation is due.
4. NET EARNINGS. "Monthly Net Earnings" shall mean (a) gross revenues
from all sources relating to the operation of the Dealerships ("Gross
Revenues"), less (b) all cost of sales; general and administrative expenses;
salaries, bonuses, commissions, and other compensation; depreciation;
amortization; interest; dealership overhead; and the sum of $25,000.00 per
month as and for the portion of Cross-Continent Auto Retailers, Inc.'s (the
"Parent") corporate overhead charged to the Dealerships; but before income
taxes. Monthly Net Earnings shall be calculated on the accrual method of
accounting and determined by the Parent's accounting staff in accordance with
generally accepted accounting principles.
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5. COMPENSATION PRORATIONS. For purposes of calculating the
compensation set forth in Paragraph 3, all such amounts shall be prorated for
any partial calendar month or year during the term of this Agreement.
6. EMPLOYEE BENEFITS. In addition to the compensation set forth in
Paragraph 3, Employer shall:
(a) grant Employee fifteen (15) working days of paid vacation during
each twelve (12) calendar month period of the term of this Agreement;
(b) provide Employee with the use of two (2) new demonstrator vehicles
in accordance with the customary practice of the Employer immediately prior
to the date of this Agreement; and
(c) provide Employee and his spouse and dependent children, either
through direct premium payment or through additional compensation to enable
Employee to pay for such coverage, with hospital, surgical and medical
insurance coverage no less favorable than such coverage provided to Employee
by Employer immediately prior to the date of this Agreement; provided,
however, that if such direct premium payment or additional compensation
exceeds the amount otherwise payable by Employer to provide such benefits to
all employees of Employer, Employee shall recognize and report for federal
income tax purposes such excess, with such excess being subject to all
applicable federal income tax and social security and medicare premium
withholding requirements.
Employee shall be eligible to participate in the Employer's retirement plan
after one year from the date of this Agreement.
7. REIMBURSEMENT OF BUSINESS EXPENSES. Employee is authorized to
incur reasonable business expenses for promoting the business of Employer,
and for performing the duties contemplated by this Agreement, including, but
not limited to, expenditures for business entertainment and business travel.
Employer shall reimburse Employee for all such reasonable expenditures upon
Employee's presentation of an itemized account of and receipts for the
expenditures. An itemized account will be submitted by Employee to Employer
on a monthly basis.
8. TIME. The Employee agrees to devote his full time, energies,
abilities and attention to the performance of his obligations and
responsibilities under this Agreement.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION AND TRADE SECRETS.
During the term of this Agreement, Employee will have access to and become
familiar with various trade secrets, consisting of formulas, compilations of
information, records and other information owned by Employer and regularly
used in the operation of the business of Employer. Employee must not
disclose any such trade secrets, directly or indirectly, nor use them in any
way, either during the term of this Agreement or for a term of one (1) year
from the date this Agreement expires or is terminated, except as required in
the course of his employment with Employer; provided, however, that the
prohibition provided in this clause shall not apply to any such information
or knowledge thereof that is otherwise common knowledge in the new automobile
dealership industry.
10. EMPLOYER'S PROPERTY. All files, records, documents, equipment,
and other property of Employer used by Employee in the performance of his
obligations and responsibilities under this Agreement, whether or not
prepared by Employee, will remain the
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exclusive property of Employer and must not be removed from the premises of
Employer under any circumstances, other than in connection with Employee's
employment or otherwise contemplated by this Agreement, without the prior
written consent of Employer. Upon the expiration or termination of this
Agreement, Employee must immediately deliver to Employer all property
belonging to Employer in Employee's possession, or under Employee's control,
in good condition, ordinary wear and tear excepted.
11. INDEMNIFICATION OF EMPLOYEE. Employer shall indemnify Employee for
all losses sustained by Employee as a direct result of the discharge of his
duties required by this Agreement, except for losses caused by Employee's
willful misconduct or gross negligence. "Gross Negligence," as used in this
Agreement, shall mean an act or omission that involves an intentional
disregard or failure to perform any job duty or function in reckless
disregard of the consequences whether or not those consequences were
foreseeable.
12. OFFICE AND CLERICAL SERVICES. Employer will provide Employee with
an office and such clerical services as are reasonably necessary for Employee
to perform his obligations and responsibilities under this Agreement.
13. TERMINATION OF EMPLOYEE FOR CAUSE. If Employee is terminated for
cause by Employer, Employee shall be entitled to his Base Compensation and
Bonus Compensation, prorated to the date of termination, and Employer shall
be relieved of its obligation to pay Employee any remaining Base Compensation
or Bonus Compensation that would thereafter be due under Paragraph 3 of this
Agreement. In addition, if Employee is terminated for cause by Employer,
Employee shall be bound by the non-compete provisions of Paragraph 19 of this
Agreement.
14. DEFINITION OF "FOR CAUSE." The term "for cause," as used in this
Agreement, shall mean (a) a conviction of a felony, (b) commitment of fraud,
(c) theft of any property of Employer or Employer's customers, (d) reporting
to work under the influence of alcohol or controlled substances (other than
prescription medication which is possessed and being taken pursuant to a
current and valid physician's prescription), or (e) repeated failure on the
part of Employee to perform his duties in the usual and customary manner that
such duties are performed in the automobile business.
15. TERMINATION OF EMPLOYEE WITHOUT CAUSE. If Employee is terminated
by Employer without cause or this Agreement is terminated due to the Employer
selling or otherwise ceasing to own and operate the Dealerships, Employee
shall be entitled to the greater of (a) an amount equal to his Base
Compensation and his Bonus Compensation for the period of twelve (12) months
prior to the date of termination, or (b) his monthly Base Compensation for a
twelve (12) month period. If Employee is terminated by Employer without
cause, the non-compete provisions of Paragraph 19 of this Agreement shall
immediately be null and void. It is understood and agreed by the parties that
the voiding of Paragraph 19 shall not otherwise affect the validity, legality
or enforceability of the remaining provisions of this Agreement.
16. VOLUNTARY TERMINATION BY EMPLOYEE. If Employee voluntarily
terminates his employment with Employer, Employee shall be entitled to his
Base Compensation and Bonus Compensation, prorated to the date of
termination, and Employer shall be relieved of its obligation to pay Employee
any remaining Base Compensation or Bonus Compensation that would thereafter
be due under Paragraph 3 of this Agreement. In addition, if Employee
voluntarily terminates his employment with Employer, Employee shall be bound
by the non-compete provisions of Paragraph 19 of this Agreement.
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17. NOTICE OF TERMINATION. The Employee and the Employer understand
and agree that (a) each has the right, upon thirty (30) days written notice
(hereinafter referred to as the "Notice Period"), to terminate the employment
relationship, and (b) Employer may terminate the employment relationship
immediately for cause.
18. NOTICE PERIOD. The Employer agrees to continue in effect during
the Notice Period the compensation and benefits to which the Employee may be
otherwise entitled under this Agreement. The Employee agrees that during the
Notice Period, he will cooperate fully with the Employer in all matters
relating to the winding up of any pending work and the orderly transfer to
other employees of Employer of the work for which he has most recently been
responsible. The Employee understands and agrees that, at or about the
expiration of the Notice Period, or upon the immediate termination of
Employee, the Employer may convene an exit interview to review the status of
work for which the Employee has most recently been responsible; to review the
status of Employee's compensation, benefits, and obligations under this
Agreement; and to confirm that the Employee clearly understands the nature
and scope of his post-employment rights and obligations.
19. COVENANT NOT TO COMPETE. Employee agrees that he will not, either
directly or indirectly, alone or with others, either as an employee, owner,
partner, agent, stockholder, member, director, officer or otherwise enter
into or engage in the business of operating a new vehicle dealership,
warranty repair business, or other related new automobile business with
respect to any of the Audi, BMW, Land Rover, Rolls-Royce, Bentley, or
Volkswagen franchises within the Las Vegas or Henderson, Nevada metropolitan
areas (the "Restricted Area") for a term of three (3) years from the date of
this Agreement (the "Restrictive Period").
20. NON-SOLICITATION. Employee will not individually, collectively,
or in conjunction with others, directly or indirectly, within the Restrictive
Period and Restricted Area, directly or indirectly solicit or hire any
employee of Employer or encourage any such employee to leave such employment
unless such employee has already terminated such employment with Employer or
Employer and the Employee have mutually agreed in advance to the solicitation
or employment.
21. REMEDIES. The breach of or failure to perform any term of this
Agreement may be enforced by an action for injunctive relief, which may be
brought in any court of competent jurisdiction in Xxxxx County, Nevada. None
of the remedies provided for in this Agreement shall be the exclusive remedy
of either party for a breach of this Agreement. The parties hereto shall
have the right to seek any other remedy at law or in equity in lieu of or in
addition to any remedies provided for in this Agreement.
22. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
23. INVALID PROVISIONS. If any provision contained in this Agreement
shall for any reason be held to be invalid, illegal, void, or unenforceable
in any respect, such provision shall be deemed modified so as to constitute a
provision conforming as nearly as possible to such invalid, illegal, void or
unenforceable provision while still remaining valid and enforceable; and the
remaining terms or provisions contained herein shall not be affected thereby.
24. AMENDMENT. This Agreement may not be amended or modified except
by a written instrument executed by both Employer and Employee.
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25. ATTORNEYS' FEES. In the event of the breach of this Agreement by
either party, the prevailing party shall be entitled to reimbursement by the
non-prevailing party of any attorneys' fees and costs incurred in enforcing
the party's rights hereunder.
26. INCONSISTENCY. To the extent that this Agreement is inconsistent
with any Employer policies or any agreements between the parties, this
Agreement shall prevail.
27. PARAGRAPH HEADINGS. The paragraph headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or
any provision contained in this Agreement.
28. ENTIRE AGREEMENT. This Agreement contains and constitutes the
entire agreement between the parties regarding the subject matter hereof and
supersedes all prior agreements and understandings between the parties
relating to the subject matter of this Agreement.
DATED AND EFFECTIVE as of November 1, 1997.
EMPLOYER: JRJ INVESTMENTS, INC.
By:
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Its:
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EMPLOYEE:
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XXXX X. XXXXXXXX
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