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EXHIBIT 99.E
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
October __, 1997, by and between Bluegreen Corporation (collectively with any of
its subsidiary corporations, "Bluegreen") and _______________ (the "Employee").
Introduction
BG/RDI Acquisition Corp. ("Buyer") and Bluegreen have entered into a
Stock Purchase Agreement dated as of July 24, 1997 (the "Purchase Agreement")
with the Employee, certain other individuals and the other corporations named
therein pursuant to which the Buyer is acquiring the Shares. This Agreement is
being entered into in connection with, and is a condition to, the closing of the
transactions contemplated by the Purchase Agreement. Capitalized terms used but
not defined herein shall have the meanings given to them in the Purchase
Agreement.
Bluegreen desires to retain the services of the Employee as of the
closing, and the Employee wishes to be employed by Bluegreen. The Employee has
detailed knowledge of various aspects of the Business and is in possession of
proprietary and confidential information concerning such Business. The
disclosure of such information or the engaging in competitive activities would
cause substantial harm to Buyer and Bluegreen.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1. Term. Bluegreen shall employ the Employee for a three-year
term commencing on the date of this Agreement and continuing until October __,
2000, unless earlier terminated pursuant to Section 7 (the "Employment Period").
Section 2. Duties. The Employee shall serve as a Vice President of
Bluegreen Resorts, Inc. and shall have such duties consistent with such position
and as the Board of Directors of Bluegreen (the "Board") or the officer of
Bluegreen from time to time designated by the Board for such purpose (the
"Senior Officer") shall from time to time determine. The Employee will report to
the Senior Officer (L. Xxxxxxxx Xxxx shall be the initial Senior Officer). The
Employee will be based in _______________, but acknowledges that a substantial
percentage of his time will be spent on travel for business purposes. The
Employee shall receive no additional compensation for any services rendered in
the event he serves as a director of Buyer, Bluegreen or any of their respective
subsidiaries. The Employee shall also not, directly or indirectly, receive any
compensation for any services provided by him to AmClub, Inc. It is understood
that the Employee may provide services to AmClub, Inc., and the same shall not
be deemed a breach of this Agreement.
Section 3. Full Time; Best Efforts. During the term of this Agreement,
the Employee shall use his best efforts to promote the interests of Bluegreen
and shall devote his full business time and efforts to its business and affairs.
The Employee shall not engage in any other activity which could reasonably be
expected to interfere with the performance of his duties, services and
responsibilities hereunder.
Section 4. Compensation. During the term of his employment with Buyer,
the Employee shall be entitled to receive a salary at the rate of $180,000
annually (the "Salary"), payable not less than monthly in arrears. Bluegreen may
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withhold from compensation payable to the Employee all applicable federal, state
and local withholding taxes. The Employee shall not receive any compensation
from any RDI Company other than as set forth in this Agreement.
Section 5. Benefits. The Employee will be entitled to such reasonable
and customary fringe benefits as are generally and regularly available to
employees of Bluegreen and its subsidiaries, including health insurance and four
(4) weeks of vacation per year. In addition, during the term of this Agreement,
Bluegreen will reimburse the Employee for the expenses listed on Exhibit A
attached hereto in an aggregate amount not to exceed $20,000 per annum. The
Employee will be entitled to reimbursement of all reasonable and necessary
business expenses incurred by him in the ordinary course of business on behalf
of Buyer, subject to presentation by the Employee of appropriate documentation
and approval by Buyer (or in accordance with policies approved by Bluegreen).
Bluegreen confirms and agrees that the Employee shall, with respect to his
duties hereunder, be entitled to indemnification as provided in Bluegreen's
Restated Articles of Organization.
Section 6. Confidentiality and Noncompetition. In consideration of the
other mutual promises contained herein, and to preserve the goodwill of Buyer
and Bluegreen in connection with the transactions contemplated by the Purchase
Agreement, the Employee agrees as follows:
(a) The Employee will not at any time, directly or indirectly,
disclose or divulge, except as required in connection with the performance of
his duties for Buyer and Bluegreen and except to legal counsel or as required or
requested by any governmental agency or pursuant to or in response to any threat
of legal process, any Confidential Information (as hereinafter defined) acquired
by him during or in connection with his affiliation with or employment by
Bluegreen, any of its subsidiaries or any RDI Company. As used herein,
"Confidential Information" means all trade secrets and all other information of
a business, financial, marketing, technical or other nature pertaining to
Bluegreen, any of its subsidiaries or any RDI Company, all financial information
on customers, lists of customers and customer leads, acquisition prospects and
all information on agreements with suppliers and vendors of Bluegreen, any of
its subsidiaries or any RDI Company, including information of others that
Bluegreen, any of its subsidiaries or any RDI Company has agreed to keep
confidential; provided, however, that Confidential Information shall not include
any information that has entered or enters the public domain through no fault of
the Employee or which the Employee is required to disclose by legal process or
to defend himself in a legal proceeding.
(b) The Employee shall make no use whatsoever, directly or
indirectly, of any Confidential Information, except as required in connection
with the performance of his duties for Bluegreen.
(c) Upon Bluegreen's request at any time and for any reason,
the Employee shall immediately deliver to Buyer all materials (including all
copies) in his possession which contain or relate to Confidential Information.
(d) During the term of this Agreement, and for two years after
such termination for any reason (but if the term of the Employment Agreement
expires upon natural termination of the expiration of three (3) years from the
date of employment, then for a term of one (1) year from the date of such
termination) either individually or as a consultant to, or employee, officer,
director, stockholder, manager, partner or other owner or participant in any
business entity other than Bluegreen or its subsidiaries, directly or indirectly
(i) own, operate or sell a timeshare project within thirty (30) miles of a
timeshare property developed and marketed by Bluegreen or any of its
subsidiaries, (ii) accept contracts of management of timeshare associations
under management to the RDI Company when those contracts existed at the time of
Closing or are gained
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during the time of employment of the Employee or (iii) accept a management
contract on a development within thirty (30) miles of any timeshare development
managed or developed by Bluegreen or any of its subsidiaries, nor shall such
Employee engage or participate in, assist or consult with, in any manner or in
any capacity, or have any interest in or make any loan to, any Person or entity
which is engaged in any business that does any of the foregoing.
(e) During the term of this Agreement, and the period after
such termination for any reason which applies under clause (d) above, the
Employee will not directly or indirectly, individually or as a consultant to, or
employee, officer, director, stockholder, manager, partner or other owner or
participant in any business entity other than Bluegreen, solicit or endeavor to
entice away from Bluegreen or any of its subsidiaries, or otherwise materially
interfere with the business relationship of any RDI Company or Bluegreen with,
(i) any person who is, or was within the four (4) month period immediately prior
to the termination of the Employee's employment with Bluegreen, employed by or
associated with any RDI Company or Bluegreen or (ii) any person or entity who
is, or was within the one year period immediately prior to the termination of
the Employee's employment with Bluegreen, a customer or client of, supplier to
or other party having material business relations with any RDI Company or
Bluegreen. Without limiting any injunctive or other equitable remedy available
to Bluegreen, if the Employee shall breach the terms of clause (i) of this
paragraph, the Employee shall be obligated to pay to Bluegreen as liquidated
damages an amount equal to two (2) times the aggregate annual compensation of
the applicable person as of the time of the wrongful act, it being agreed that
the exact amount of monetary damages would be difficult to compute.
(f) Without limiting the remedies available to Buyer or
Bluegreen, the Employee acknowledges that a breach of any of the covenants
contained in this Section 6 could result in irreparable injury to Bluegreen for
which there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, Bluegreen shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction
restraining him from engaging in any activities prohibited by this Section 6 or
such other equitable relief as may be required to enforce specifically any of
the covenants of this Section 6. The foregoing provisions of this Section 6
shall survive the termination of this Agreement and shall continue thereafter
indefinitely in full force and effect in accordance with the terms of this
Section 6.
(g) The Employee represents and warrants to Bluegreen that the
execution and delivery of this Agreement, and the performance of his obligations
hereunder, will not violate any agreement, obligation or commitment, including
without limitation any obligation to any former employer not to compete or not
to disclose or use confidential information, to which he is a party or by which
he is bound.
(h) All references to Bluegreen in this Section 6 shall
include any subsidiaries (direct or indirect) of Bluegreen engaged in the
business of sales, development, marketing or management of timeshare, including
the RDI Companies.
(i) Each party hereto acknowledges that (x) there are
legitimate business interests justifying the covenants contained in this Section
6, including without limitation that the Employee has and will have trade
secrets, valuable confidential business or professional information and
substantial relationships with existing and prospective customers, suppliers and
others, customer goodwill and specialized training and (y) the terms of this
Section 6 are reasonably necessary to protect such legitimate business
interests. The provisions of this Section 6 are in addition to, and not in lieu
of, the terms of Article 8 of the Purchase Agreement.
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Section 7. Termination. The Employee's employment with Buyer may be
terminated at any time by Buyer or Bluegreen with or without cause. As used
herein, "cause" shall mean the reasonable and good faith determination by the
Board, after at least 10 days' notice to the Employee and after the Employee has
had an opportunity to present his view of the relevant facts and circumstances
to the Board, that the Employee has (a) breached Section 6 of this Agreement,
breached his obligations hereunder to provide his full business, time and effort
to the business of Bluegreen or engaged in repetitive insubordination or
materially breached the AmClub Agreement, which breach or failure has not been
cured by the Employee within 30 days after notice of breach or failure is given
to the Employee, (b) engaged in criminal acts or gross or persistent misconduct
relative to the affairs of Buyer or Bluegreen or (c) engaged in acts materially
injurious to Buyer or Bluegreen or its/their reputation or acts of dishonesty
affecting Buyer or Bluegreen. The Employee's employment with Bluegreen may also
be terminated by Bluegreen upon the Employee's disability or death. As used
herein, "disability" shall mean illness (mental or physical) or accident which,
in the good faith and reasonable determination of the Board (or the Senior
Officer referred to in Section 2 above)based on the report of a reputable
physician, renders the Employee unable to perform his duties for six (6) months
during any twelve (12) month period.
If the Employee's employment is terminated for any reason, Bluegreen
shall have no further obligation to make any payments or provide any benefits to
the Employee hereunder except for (i) payments of Salary and vacation that had
accrued but had not been paid prior to the date of termination of his employment
and (ii) if the Employee's employment is terminated by Bluegreen without cause
(as defined above) additional payments of Salary during the scheduled balance of
this Agreement, payable in the same installments (and subject to the same
withholdings) as if such employment had not been so terminated. Nothing
contained herein shall limit the Employee's right following the termination of
the Employee's employment for any reason to receive such medical benefits as to
which he may be entitled under the Consolidated Omnibus Budget Reconciliation
Act (COBRA) or any other benefits that the Employee is entitled to under Law.
Section 8. Equity. Upon the execution of this Agreement, Bluegreen and
the Employee will enter into a stock option agreement substantially in the form
attached as Exhibit B hereto pursuant to which Bluegreen will grant the Employee
an incentive stock option for the purchase of up to 60,000 shares of Bluegreen's
common stock, subject to the terms and conditions set forth therein.
Section 9. Enforceability, etc. This Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision hereof shall be prohibited or invalid under any such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating or nullifying the remainder of such provision or any other
provisions of this Agreement. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, such provisions shall be
construed by limiting and reducing it so as to be enforceable to the maximum
extent permitted by applicable law.
Section 10. Notices. Any notice or other communication given pursuant
to this Agreement shall be in writing and shall be personally delivered, sent by
overnight courier or express mail, or mailed by first class certified or
registered mail, postage prepaid, return receipt requested to the parties at
their respective addresses set forth in the Purchase Agreement, or to such other
address as the parties shall have designated by notice to the other parties.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida, without
regard to their choice of law provisions.
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Section 12. Amendments and Waivers. No amendment or waiver of this
Agreement or any provision hereof shall be binding upon the party against whom
enforcement of such amendment or waiver is sought unless it is made in writing
and signed by or on behalf of such party. The waiver by either party of a breach
of any provision of this Agreement by the other party shall not operate and be
construed as a waiver or a continuing waiver by that party of the same or any
subsequent breach of any provision of this Agreement by the other party.
Section 13. Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs, executors
and administrators, successors and assigns, except that it may not be assigned
by either party without the other party's consent, provided that Bluegreen may
assign this agreement to any entity that acquires substantially all of
Bluegreen's assets.
Section 14. Entire Agreement. This Agreement constitutes the final and
entire agreement of the parties with respect to the matters covered hereby and
replaces and supersedes all other agreements and understandings relating hereto.
Section 15. Counterparts. This Agreement may be executed in any number
of counterparts, and with counterpart signature pages, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument as of the date first above written.
BLUEGREEN CORPORATION
By:
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(Title)
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Employee
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