February 7, 2007
February
7, 2007
Xxxxxx
X.
Xxxxxxx
0000
Xxxxxxxx Xxxx.
Xxxxx,
XX
00000
Dear
Don:
Reference
is made to that certain Non-Compete and Covenant Agreement, dated May 14, 2004
(the “Covenant Agreement”) by and among you, RV Acquisition Inc., Bruckmann,
Xxxxxx, Xxxxxxxx & Co II, L.P. (“BRS”) and Lazy Days’ R.V. Center Inc. (the
“Company”) and to that certain Employment Agreement, dated May 14, 2004 (the
“Employment Agreement”) by and among you, the Company, RV Acquisition Inc. and
BRS. You have advised us of your desire to retire from your service as an
employee, officer and board member of each of Lazy Days R.V. Center Inc., LD
Holdings Inc. and RV Acquisition Inc. (collectively the “LD Companies”) and you
have requested that such retirement not take effect until August 2, 2007. You
hereby agree to the following:
(A) Board
membership and compensation.
You
hereby voluntarily retire from your membership on the board of directors of
each
of the LD Companies effective immediately. You acknowledge that you will hereby
cease to receive compensation pursuant to Section 4(g) of the Covenant
Agreement.
(B) Retirement
from Employment and Board Membership.
You
hereby voluntarily retire, effective as of August 2, 2007, from your employment
with each of the LD Companies in any position you may hold, including your
position as Chairman. From the date of this Retirement Agreement until your
retirement on August 2, 2007 you shall not have any specific responsibilities
in
connection with your employment; provided, that (1) nothing herein shall be
construed as a waiver of any fiduciary or other legal duties that you may owe
to
the LD Companies as an employee or otherwise and (2) you agree to be available
on reasonable notice for consultation to Xxxx Xxxxxx, if requested. You agree
that, effective August 2, 2007, except as set forth in Section C and Section
E
hereof, you will not be entitled to any compensation or benefits of any kind,
and you further agree that none of the LD Companies will have any further
obligation to you, including, but not limited to, any compensation or severance
under the Employment Agreement or the Covenant Agreement; provided, however,
that the foregoing shall not affect your right to receive a portion of the
“Management Fee” pursuant to Section 5(iv) of that certain Management Agreement
dated as of May 14, 2004 among Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.L.C. and
the LD Companies. Through and following August 2, 2007, except as expressly
set
forth herein, the Covenant Agreement shall remain in full force and effect
in
all respects.
(C) Compensation
and Benefits.
(i) From
the
date hereof until August 2, 2007, the Company agrees to continue to pay you
a
salary at a rate per annum equal to $1,074,700 payable in regular installments
in accordance with the Company’s general payroll practices, which such amount
shall be adjusted on May 14, 2007 to the amount that equals $1,074,700 increased
by a percentage, the numerator of which is the Consumer Price Index for Urban
Wage Earners and Clerical Workers, as published by the Bureau of Labor
Statistics of the United States Department of Labor (the “CPI”), as of such
anniversary date, and the denominator of which is the CPI as of May 14, 2006,
provided,
however,
that
the base salary shall not be decreased pursuant to the terms of this Section
C(i). [In
the event it is determined that the Company failed to make payment under the
Covenant Agreement for the period from May 14, 2004 through May 31, 2004, the
Company shall agree to pay you an amount equal to $83,334 at the time of your
next payroll payment.]
(ii) From
the
date hereof until August 2, 2007, the Company further agrees that you will
be
entitled to participate in the pension, profit sharing, life insurance,
disability insurance, hospitalization, major medical and other employee benefit
plans of the Company. The Company, at its cost, shall also provide to you until
August 2, 2007 equivalent hospitalization, major medical and other medical
coverage for your wife and minor children to the extent that your wife and
minor
children are eligible. From August 2, 2007, you will be offered whatever
benefits you are entitled to receive under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”). Information regarding COBRA including the
monthly premiums, rates and election criteria will be forwarded to you under
separate correspondence. The Company will cooperate with you to continue
coverage, at your cost and expense, under the Company’s health insurance plan(s)
for yourself, your spouse and your children for as long as such coverage can
be
continued under such plan(s) as in effect from time to time.
(iii) The
Company agrees to reimburse you for $1,936.95 in May 2007 which represents
the
grossed up amount of your semi-annual disability premiums on your personal
disability policy No. 7099102AH.
(iv) The
Company shall reimburse you for all reasonable expenses incurred by you prior
to
August 2, 2007 in the course of performing your duties to the Company which
are
approved in advance by the Company, subject to the Company’s requirements with
respect to reporting and documentation of such expenses.
(D) Amendment
of Covenant Agreement.
(i) Section
4(g) of the Covenant Agreement shall be deleted and replaced in its entirety
by
the following:
“[intentionally
omitted]”
(ii) Section
4(h) of the Covenant Agreement shall be amended by deleting the phrase “as
amended as of the date hereof” in clause (A)(i) and replacing it with “as
amended from time to time.”
(iii) Except
as
set forth in clauses (i) and (ii) above, the Covenant Agreement remains in
full
force and effect in all respects.
(E) Mutual
Release and Non-Disparagement Agreement.
In
consideration of the mutual promises and covenants set forth in this Retirement
Agreement and in consideration of the Company’s agreement to pay you $1,000,000
on the seventh day following your execution and delivery (but no earlier than
August 2, 2007) of the Mutual Release and Non-Disparagement Agreement attached
hereto as Exhibit
A
you
agree (i) to execute and deliver the Mutual Release and Non-Disparagement
Agreement contemporaneously herewith and (ii) to execute it again on or promptly
following August 2, 2007, and the Company shall execute and deliver it to you
on
both of such dates. The $1,000,000 payment, which shall be subject to applicable
withholding, is expressly conditioned upon your execution of both of the Mutual
Release and Non-Disparagement Agreements as described in clauses (i) and (ii)
above. The
Company aggress to deliver the $1,000,000 payment in six equal installments
to
be payable monthly in arrears on the first day of each month beginning March
1,
2007 to a mutually acceptable escrow agent pursuant to an Escrow Agreement
to be
entered into within 10 days of the date of execution of this Retirement
Agreement. You agree that you shall be entitled to the benefits provided for
in
Section C and to the payments provided for in this Section E if and only if
you
have not breached as of the date of final payment of the $1,000,000 the
provisions of (i) Sections 2, 3 and 4(b)(ii) of the Covenant Agreement in
any material respect, (ii) Sections 1 and 4 of the Covenant Agreement (other
than Section 4(b)(ii)) and (3) the Mutual Release and Non-Disparagement
Agreement, and do not breach such provisions at any time during the period
for
which such payments are to be made; provided,
that
with respect to any breach of Section 3 of the Covenant Agreement, you
shall be given the opportunity to cure such breach within 30 days.
(F) Landlord
Consent.
Promptly following the Company’s request, you agree to cause I-4 Land Holding
Limited Company (“I-4”) to execute and deliver a form of landlord consent
substantially similar to the landlord consents executed by I-4 and delivered
to
Xxxxx Fargo Foothill and Bank of America N.A. on May 14, 2004 with changes
to
reflect the underlying factual changes.
This
Retirement Agreement shall be governed by the internal laws, and not the laws
of
conflicts, of the State of Florida.
Very
truly yours,
LAZY
DAYS’ R.V. CENTER INC.
By: /s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Chief Executive Officer
LD
HOLDINGS INC.
By: /s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Chief Executive Officer
RV
ACQUISITION INC.
By:___________________________
Name:
Title:
Accepted
and agreed as
of
the
date first written above:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X. Xxxxxxx
