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EMPLOYMENT AGREEMENT
BETWEEN
MARINEMAX OF TREASURE COVE, INC.
AND
XXXX XXXXXX XXXXX, IV
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TABLE OF CONTENTS
PAGE
1. EMPLOYMENT.............................................................1
2. FULL TIME OCCUPATION...................................................1
3. COMPENSATION AND OTHER BENEFITS........................................1
(a) Salary...........................................................1
(b) Bonus............................................................1
(c) Commissions......................................................1
(d) Fringe Benefits..................................................2
(e) Reimbursement....................................................2
4. TERM OF EMPLOYMENT.....................................................2
(a) Employment Term..................................................2
(b) Termination Under Certain Circumstances..........................2
(i) Death......................................................2
(ii) Disability.................................................2
(iii) Unilateral Decision of Employer............................2
(iv) Unilateral Decision by Employee............................3
(v) For "Cause\................................................3
(c) Result of Termination............................................3
5. COMPETITION AND CONFIDENTIAL INFORMATION...............................3
(a) Interests to be Protected........................................3
(b) Non-Competition..................................................4
(c) Non-Solicitation of Employees, Customers, or Acquisition
Candidates.......................................................4
(d) Confidential Information.........................................4
(e) Return of Property...............................................5
(f) Disclosure of Information........................................5
(g) Assignment.......................................................5
(h) Equitable Relief.................................................5
(i) Restrictions Separable...........................................5
6. MISCELLANEOUS..........................................................5
(a) Third-Party Beneficiary..........................................5
(b) Notices..........................................................6
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TABLE OF CONTENTS
(CONTINUED)
PAGE
(c) Indulgences; Waivers.............................................6
(d) Controlling Law..................................................6
(e) Execution in Counterpart.........................................7
(f) Provisions Separable.............................................7
(g) Entire Agreement.................................................7
(h) Paragraph Headings...............................................7
(i) Binding Nature of Agreement......................................7
(j) Construction.....................................................7
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 30th day of September, 1998, by
and between MARINEMAX OF TREASURE COVE, INC., a Delaware corporation
("Employer") and a direct subsidiary of MarineMax, Inc., a Delaware corporation
("MarineMax"), and XXXX XXXXXX XXXXX, IV ("Employee").
WHEREAS, Employee has experience selling, renting and leasing boating,
nautical and other similar lifestyle entertainment products and services (the
"Watercraft Business").
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. EMPLOYMENT.
Employer hereby employs Employee, and Employee hereby accepts such
employment, as President of Employer and in such other capacities and for such
other duties and services as shall from time to time be mutually agreed upon by
Employer and Employee.
2. FULL TIME OCCUPATION.
Employee shall devote Employee's entire business time, attention, and
efforts to the performance of Employee's duties under this Agreement, shall
serve Employer faithfully and diligently, and shall not engage in any other
employment while employed by Employer.
3. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. Employer shall pay to Employee, as full compensation for
the services rendered by Employee during Employee's employment under this
Agreement, a salary at a rate of $150,000 per annum to be paid in 26 equal
installments per annum, or in such other periodic installments upon which
Employer and Employee shall mutually agree (less all applicable deductions for
all taxes, including federal, state, and FICA; insurance; pension plans; etc.).
(b) BONUS. Employee shall be eligible to receive an annual bonus in
such an amount, if any, to be determined by the Board of Directors of Employer
based upon such factors as may be deemed relevant by the directors, including
the performance of Employee.
(c) COMMISSIONS. Employee shall be eligible to receive commissions
based upon a percentage of Employer's overall annual boat sales, in an amount to
be determined by the Board of Directors of Employer in its discretion.
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(d) FRINGE BENEFITS. Employee shall be entitled to participate in
any stock option, employee stock purchase, group insurance, pension, retirement,
vacation, expense reimbursement or other plans, programs, or benefits approved
by the Board of Directors and made available from time to time to employees of
Employer generally during the term of Employee's employment hereunder. The
foregoing shall not obligate Employer to adopt or maintain any particular plan,
program, or benefit.
(e) REIMBURSEMENT. Employer shall reimburse Employee for all travel
and entertainment expenses and other ordinary and necessary business expenses
incurred by Employee in connection with the business of Employer and Employee's
duties under this Agreement. The term "business expenses" shall not include any
item not deductible in whole or in part by Employer for federal income tax
purposes. To obtain reimbursement, Employee shall submit to Employer receipts,
bills or sales slips for the expenses incurred. Reimbursements shall be made by
Employer monthly within 30 days of presentation by Employee of evidence of the
expenses incurred.
4. TERM OF EMPLOYMENT.
(a) EMPLOYMENT TERM. The term of this Agreement shall be for a
period of five years commencing as of the date hereof and from year to year
thereafter, unless and until terminated pursuant to Section 4(b) of this
Agreement or by either party giving written notice to the other not less than 60
days prior to the end of the then-current term.
(b) TERMINATION UNDER CERTAIN CIRCUMSTANCES. Not-withstanding
anything to the contrary herein contained:
(i) DEATH. Employee's employment shall be automatically
terminated, without notice, effective upon the date of Employee's death.
(ii) DISABILITY. Employer may, at its option and upon notice to
Employee, terminate Employee's employment as a result of "Total and Permanent
Disability" (as defined below) effective on the date of that notice. For
purposes of this Agreement, the term "Total and Permanent Disability" shall mean
such physical or mental condition of Employee that renders Employee incapable of
performing Employee's duties for a period of more than 60 consecutive days or
for 60 days within any 180-day period; provided, however, that Employee shall
not be terminated for Total and Permanent Disability until a qualified and
independent (i.e., having no prior affiliations with Employer, Employee,
MarineMax or any MarineMax affiliate) medical specialist provides written
confirmation, after examination, that Employee is totally and permanently
incapacitated such that Employee can no longer perform Employee's duties
hereunder. In the event that Employee is a "qualified individual with a
disability," as defined in the Americans With Disabilities Act, Employer shall
not terminate Employee's employment hereunder if Employee is able to perform the
essential functions of Employee's job with reasonable accommodation from
Employer.
(iii) UNILATERAL DECISION OF EMPLOYER. Employer may, at its
option, upon notice to Employee, terminate Employee's employment effective on
the date of that notice.
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(iv) UNILATERAL DECISION BY EMPLOYEE. Employee may, at his
option and upon notice to Employer, terminate Employee's employment effective on
the date of that notice.
(v) FOR "CAUSE". Employer may, at its option and upon notice to
Employee, terminate Employee's employment for "Cause" (as defined below)
effective on the date of that notice. For purposes of this Agreement, the term
"Cause" shall mean (i) the failure or inability (other than as a consequence of
any illness, accident or other disability, as confirmed by competent medical
evidence) of Employee to perform Employee's duties hereunder for a period in
excess of 60 days in a manner reasonably satisfactory to Employer's Board of
Directors, provided the decision of the Board of Directors is not arbitrary or
capricious and is not made in bad faith; or (ii) "Serious Misconduct" of
Employee (as defined below). For purposes of this Agreement, the term "Serious
Misconduct" shall mean embezzlement or misappropriation of corporate funds; acts
of Dishonesty (as defined below); activities harmful to the reputation of
Employer (other than as a consequence of good faith decisions made by Employee
in the normal performance of Employee's duties hereunder); the conviction of or
the plea by Employee to any criminal felony offense (other than those arising
within the scope of Employee's employment hereunder, of which offenses Employee
was not personally aware or did not personally and knowingly order in violation
of the law, and other than a traffic or other offense that in the sole
discretion of the Board of Directors of Employer does not affect Employee's
position as an Employee of Employer) or any criminal felony offense involving
dishonesty or moral turpitude; the refusal to perform the duties assigned to
Employee pursuant to this Agreement (unless such duties shall be unlawful); or
the breach of any of the terms or conditions contained in this Agreement. For
purposes of this Agreement, the term "Dishonesty" shall mean the varnishing of
any information, reports, documents or certificates by Employee to Employer
which Employee knew or reasonably should have known to be false or misleading.
(c) RESULT OF TERMINATION. In the event of the termination of
Employee's employment pursuant to Sections 4(b)(i) or (ii) above, Employee's
estate or Employee, as the case may be, shall be entitled to receive an amount
equal to Employee's fixed salary as provided in Section 3(a) above for a period
of one year after such termination. In the event of the termination of
Employee's employment pursuant to Section 4(b)(iii) above, Employee shall
continue to receive Employee's fixed compensation for the lesser of (i) one year
or (ii) the remainder of the term of this Agreement. In the event of the
termination of Employee pursuant to Section 4(b)(iv) or (v) above, Employee
shall receive no further compensation under this Agreement.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. For the purposes of this Section 5,
the term "Employer" shall include MarineMax and any other entity directly or
indirectly controlled by, in control of, or under common control with MarineMax.
The parties acknowledge that Employee will perform essential services for
Employer, its employees, and its stockholders during the term of Employee's
employment with Employer. Employee will be exposed to, have access to, and work
with, a considerable amount of Confidential Information (as defined below). The
parties also expressly recognize and acknowledge that the personnel of Employer
have been trained by, and are valuable to, Employer and that Employer will incur
substantial recruiting and
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training expenses if Employer must hire new personnel or retrain existing
personnel to fill vacancies. The parties expressly recognize that it could
seriously impair the goodwill and diminish the value of Employer's business
should Employee compete with Employer in any manner whatsoever. The parties
acknowledge that this covenant has an extended duration; however, they agree
that this covenant is reasonable and it is necessary for the protection of
Employer, its stockholders, and employees. For these and other reasons, and the
fact that there are many other employment opportunities available to Employee if
Employee should terminate Employee's employment, the parties are in full and
complete agreement that the following restrictive covenants are fair and
reasonable and are entered into freely, voluntarily, and knowingly. Furthermore,
each party was given the opportunity to consult with independent legal counsel
before entering into this Agreement.
(b) NON-COMPETITION. During the term of Employee's employment with
Employer and for the period ending 12 months after the termination of Employee's
employment with Employer, regardless of the reason therefor, Employee shall not
(whether directly or indirectly, as owner, principal, agent, stockholder,
director, officer, manager, employee, partner, participant, or in any other
capacity) engage or become financially interested in the Watercraft Business in
direct competition with Employer within the Restricted Territory (as defined
below). As used herein, the term "Restricted Territory" shall mean within a 200
mile radius of any location where Employer conducts the Watercraft Business.
(c) NON-SOLICITATION OF EMPLOYEES, CUSTOMERS, OR ACQUISITION
CANDIDATES. During the term of Employee's employment and for a period of 12
months after the termination of Employee's employment with Employee, regardless
of the reason therefor, Employee shall not directly or indirectly, for himself,
or on behalf of, or in conjunction with, any other person, company, partnership,
corporation, or governmental entity, (A) seek to hire or hire any of Employer's
personnel or employees for the purpose of having any such employee engage in
services that are the same as or similar or related to the services that such
employee provided for Employer; (B) call upon any person or entity that is or
has been, within one year prior to such date, a customer of Employer for the
purpose of soliciting or selling products or services in direct competition with
Employer; or (C) call upon any prospective acquisition candidate that Employee
knows or has reason to know was called upon by Employer or for which Employer
made an acquisition analysis for the purpose of acquiring such entity.
(d) CONFIDENTIAL INFORMATION. Employee shall maintain in strict
secrecy all confidential or trade secret information relating to the business of
Employer (the "Confidential Information") obtained by Employee in the course of
Employee's employment, and Employee shall not, unless first authorized in
writing by Employer, disclose to, or use for Employee's benefit or for the
benefit of, any person, firm, or entity at any time either during or subsequent
to the term of Employee's employment, any Confidential Information, except as
required in the performance of Employee's duties on behalf of Employer. For
purposes hereof, Confidential Information shall include without limitation any
materials, trade secrets, knowledge, or information with respect to management,
operational, or investment policies and practices of Employer; any business
methods or forms; any names or addresses of customers or suppliers or data on
customers or suppliers; and any business policies or other information relating
to or dealing with the management, operational, or investment policies or
practices of Employer.
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(e) RETURN OF PROPERTY. Upon the termination of Employee's
employment with Employer for any reason, Employee shall deliver promptly to
Employer all files, lists, books, records, manuals, memoranda, drawings, and
specifications; all cost, pricing, and other financial data; all other written
or printed materials that are the property of Employer (and any copies of them);
and all other materials that may contain Confidential Information relating to
the business of Employer, which Employee may then have in Employee's possession,
whether prepared by Employee or not.
(f) DISCLOSURE OF INFORMATION. Employee shall disclose promptly to
Employer, or its nominee, any and all ideas, designs, processes, and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee's employment with Employer or within six months thereafter.
(g) ASSIGNMENT. Employee hereby assigns to Employer or its nominee,
the entire right, title, and interest in and to all inventions, discoveries, and
improvements, whether patentable or not, that Employee may conceive or make
during Employee's employment with Employer, or within six months thereafter, and
which relate to the business of Employer.
(h) EQUITABLE RELIEF. In the event a violation of any of the
restrictions contained in this Section is established, Employer shall be
entitled to preliminary and permanent injunctive relief as well as damages and
an equitable accounting of all earnings, profits, and other benefits arising
from such violation, which right shall be cumulative and in addition to any
other rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of subsection (b), (c), (f), or (g) of this Section
5, the period for which those provisions would remain in effect shall be
extended for a period of time equal to that period beginning when such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
(i) RESTRICTIONS SEPARABLE. If the scope of any provision of this
Agreement (whether in this Section 5 or otherwise) is found by a Court to be too
broad to permit enforcement to its full extent, then such provision shall be
enforced to the maximum extent permitted by law. The parties agree that the
scope of any provision of this Agreement may be modified by a judge in any
proceeding to enforce this Agreement, so that such provision can be enforced to
the maximum extent permitted by law. Each and every restriction set forth in
this Section 5 is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any
reason, any other or others of them may be unenforceable in whole or in part.
6. MISCELLANEOUS.
(a) THIRD-PARTY BENEFICIARY. MarineMax shall at all times be and
remain a third-party beneficiary under this Agreement and all documents,
instruments and agreements made and entered into pursuant hereto.
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(b) NOTICES. All notices, requests, demands, and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made, and received (i) if
personally delivered, on the date of delivery, (ii) if by facsimile
transmission, upon receipt, (iii) if mailed, three days after deposit in the
United States mail, registered or certified, return receipt requested, postage
prepaid, and addressed as provided below, or (iv) if by a courier delivery
service providing overnight or "next-day" delivery, on the next business day
after deposit with such service addressed as follows:
(1) If to Employer:
MarineMax of Treasure Cove, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
with a copy given in the manner
prescribed above, to:
X'Xxxxxx, Cavanagh, Anderson,
Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
(2) If to Employee:
Xxxx Xxxxxx Xxxxx, IV
0000 X.X. Xxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxx 00000
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 6 for the giving of notice.
(c) INDULGENCES; WAIVERS. Neither any failure nor any delay on the
part of either party to exercise any right, remedy, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or privilege,
nor shall any waiver of any right, remedy, power, or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power, or
privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(d) CONTROLLING LAW. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement, shall be governed by
and construed in
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accordance with the laws of the state of Delaware, notwithstanding any Delaware
or other conflict-of-interest provisions to the contrary.
(e) EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(i) BINDING NATURE OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors, and assigns; provided that because the
obligations of Employee hereunder involve the performance of personal services,
such obligations shall not be delegated by Employee. For purposes of this
Agreement successors and assigns shall include, but not be limited to, any
individual, corporation, trust, partnership, or other entity that acquires a
majority of the stock or assets of Employer by sale, merger, consolidation,
liquidation, or other form of transfer. Employer will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of Employer to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that Employer would be required to perform it if no such
succession had taken place. Without limiting the foregoing, unless the context
otherwise requires, the term "Employer" includes all subsidiaries of Employer.
(j) CONSTRUCTION. The parties hereto acknowledge and agree that each
party has participated in the drafting of this Agreement and that this document
has been reviewed by the respective legal counsel for the parties hereto. No
inference in favor of or against, any party shall be drawn from the fact that
one party has drafted any portion hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MARINEMAX OF TREASURE COVE, INC.
By: /s/Xxxxxxx XxXxxx
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Its: Vice President
/s/ Xxxx Xxxxxx Xxxxx, IV
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XXXX XXXXXX XXXXX, IV
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