EXHIBIT 10.14
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Employment Agreement") is
effective as of March 24, 1997, by and between SMART CHOICE AUTOMOTIVE GROUP,
INC., a Florida corporation ("Company"), and XXXX X. XXXXXX, an individual
("Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Executive is essential to the Company's growth and
success; and
WHEREAS, the Company desires to employ Executive as its Chief Financial
Officer and Executive Vice President, and Executive is willing and able to
render his services to the Company from and after the date hereof, on the terms
and conditions of this Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
SECTION 1. EMPLOYMENT.
a. Subject to the terms and conditions of this Employment
Agreement, the Company shall retain the Executive as its Chief Financial Officer
and Executive Vice President, and the Executive shall render services to the
Company in an executive capacity. Executive shall perform such duties ordinarily
and customarily performed by a similar executive of a corporation of like type
and size as the Company, and shall perform such other reasonable executive
duties as the Company's President may assign to him from time to time. The
Employee may also be given additional titles, and may be assigned
responsibilities on behalf of certain of the Company's affiliates commensurate
with his position with the Company, without requirement of additional
compensation hereunder.
b. Throughout the period of his employment hereunder, the
Executive shall: (i) devote his full business time, attention, knowledge and
skills, faithfully, diligently and to the best of his ability, to the active
performance of his duties and responsibilities hereunder on behalf of the
Company; (ii) observe and carry out such reasonable rules, regulations,
policies, directions and restrictions as may be established from time to time by
the Company's Board of Directors, including but not limited to the standard
policies and procedures of the Company as in effect from time to time; and (iii)
do such traveling as may reasonably be required in connection with the
performance of such duties and responsibilities. However, the Company shall not
have the right to
transfer the Executive's primary location from which he is to perform services
to a location outside of Central Florida without Executive's prior consent.
SECTION 2. Intentionally omitted.
SECTION 3. TERM OF EMPLOYMENT. Subject to prior termination in
accordance with the terms and conditions of this Employment Agreement, the term
of employment of Executive by the Company pursuant to this Employment Agreement
shall be for an initial period of three (3) years (the "Employment Period")
commencing on March 25, 1997 (the "Commencement Date"). The Employment Period
shall automatically renew for additional terms of three years each on each
anniversary of March 25, 1997 thereafter (an "Anniversary Date"), unless either
party gives written notice of termination to the other party not less than one
hundred twenty (120) days prior to such Anniversary Date, in which case the
Employment Period shall not so renew on such Anniversary Date and shall
terminate two years from such Anniversary Date. The term "Employment Period"
shall include the initial Employment Period and any and all successive renewals
thereof.
SECTION 4. COMPANY'S PRINCIPAL PLACE OF BUSINESS. It is anticipated
that the Company's principal place of business will be located in the
Titusville, Florida area, or such other area in Florida as may be designated by
the Company's Board.
SECTION 5. COMPENSATION. During the Employment Period, subject to all
the terms and conditions of this Employment Agreement and as compensation for
all services to be rendered by Executive under this Employment Agreement, the
Company shall pay to Executive the following:
a. BASE SALARY. The Company shall pay to Executive a base
salary of $200,000 during each year of the initial three (3) year Employment
Period payable in equal periodic installments in accordance with the standard
payroll practices of the Company in effect from time to time, but in no case
less than once a month. During each year of the Employment Period, the Board
shall review the base salary amount to determine whether or not to grant
additional increases in the base salary amount.
b. PERFORMANCE BONUS. In addition to the annual base salary
provided hereunder, Executive may be entitled to receive an annual performance
bonus (the "Performance Bonus") as determined and in an amount set by the Board.
Executive shall have no right to receive partial payments of any such
Performance Bonus except as provided in Section 9 hereof and at the termination
of the Employment Period.
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c. COMPANY CAR/CAR ALLOWANCE. During the Employment Period,
the Company shall provide to Executive, at the option of Executive, either (i)
an automobile for Executive's use, or (ii) an automobile allowance of $600 per
month which the Executive shall apply to leasing an automobile(s) for use by
executive and his immediate family. The Company shall pay all necessary
maintenance fees, insurance payments, gasoline expenses and all other expenses
related to the maintenance, operation and upkeep of the automobile. Upon
termination of the obligation of the Company to provide Benefits pursuant to
Section 6 hereof, the Executive shall have the right and option to purchase the
automobile at its then book value for financial statement purposes (if the
automobile is owned by the Company) or, subject to the terms of the lease, to
assume the lease for said automobile (if the automobile is leased by the
Company).
d. STOCK OPTIONS. During the Employment Period, Executive will
be provided with stock options under the Company's stock option plan(s) as
determined by the Company's Board of Directors (other than those granted on the
date hereof) and/or a committee appointed by the Company's Board of Directors in
accordance with the Company's stock option plan(s). Such awards shall be made on
a basis commensurate with other executives of the Company giving due
consideration to gross compensation levels and overall job performance.
SECTION 6. FRINGE BENEFITS. Executive shall be entitled to vacations,
health care benefits, fringe benefits and reimbursement for reasonable
out-of-pocket expense, including but not limited to those hereinafter detailed
(the "Benefits"), in accordance with the Company's practices covering executive
personnel. Unless Executive consents to a different treatment, his eligibility,
participation and benefits under the Benefits will be, and will continue to be,
not less than the Benefits provided to any other employee of Vice President or
lower level. The Company shall use its best efforts to obtain waivers of waiting
periods, if any, applicable to particular benefits. The benefits shall, at a
minimum, include:
a. coverage for Executive and his family, under any major
medical and dental insurance programs and plans, and under any short-term,
long-term or permanent disability programs and plans, which are or may become
generally available to management employees of the Company. Notwithstanding the
foregoing, Executive shall be provided at minimum fully-paid health, major
medical, dental and life insurance (equal to $300,000);
b. retirement benefits at such time and on such amounts as are
paid to executives by the Company at such time as the Company institutes a
retirement or 401(k) plan;
c. reimbursement of all properly approved travel and business
related expenses normally paid by the Company for the benefit of its executives,
including, but not limited to, all
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expenses for the acquisition and use of a cellular telephone and cellular
service of Executive's choice. All expense reports must (i) be approved by the
President of the Company prior to reimbursement, which approval will not be
unreasonably withheld, or (ii) conform to the Company's expense reimbursement
policies at the time the expenses were incurred;
d. four (4) weeks paid vacation per calendar year at any time
or times selected by Executive taking into account the convenience of the
Company. Executive shall give the Board reasonable prior notice of selected
vacation times of one week or more. While unused vacation time shall not be
cumulative from year to year, Executive may carry forward not more than four (4)
weeks of unused vacation time into the following calendar year, PROVIDED,
HOWEVER, that under no circumstances shall Executive be entitled to more than
eight (8) weeks of vacation per calendar year;
e. days of annual sick leave as is usual and customary for a
vice president of a company similar to Company;
f. a holiday on the following days with full pay: New Year's
Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, and such other holidays as the Company may declare;
g. paid leave and reimbursement of all travel, tuition and
related expenses in attending trade conferences and/or seminars and/or college
or other high level courses acceptable to the Board in its reasonable
discretion;
h. the Company shall purchase director and officer liability
insurance that shall include coverage for Executive, as is normal and customary
for a company of similar size to the Company and, in addition, the Company and
its subsidiaries shall indemnify Executive pursuant to a separate written
agreement for liabilities incurred as an officer to the fullest extent allowed
by Florida law.
i. Employee shall also be provided with a disability income
plan equal to one hundred percent (100%) of his base salary, at least 80% of
which is funded by insurance.
SECTION 7. TERMINATION.
a. MUTUAL TERMINATION. This Employment Agreement may be
terminated upon mutual written agreement of the Company and the Executive;
b. BY EXECUTIVE. This Employment Agreement may be terminated
at the option of the Executive, upon fourteen (14) days' prior written notice to
the Company, in the event that the Company shall (i) fail to make any payment to
the Executive required to be made under the terms of this Employment Agreement
after payment is
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due, or (ii) fail to perform any other material covenant or agreement to be
performed by it hereunder or take any action prohibited by this Employment
Agreement, and fail to cure or remedy same within thirty (30) days after written
notice thereof to the Company. In the event that this Employment Agreement is
terminated pursuant to this Section 7b, then at the option of the Executive on
notice to the Company, the full compensation payable to the Executive for the
Employment Period under Section 5a hereof (just as if Executive had not been so
terminated and was continuing to serve as an employee hereunder for the full
Employment Period in effect as of the date of termination) shall be immediately
due and payable by the Company.
c. BY THE COMPANY FOR CAUSE. This Employment Agreement may be
terminated at the option of the Company, upon written notice to the Executive,
"for cause" (as hereinafter defined), or in the event of the "permanent
disability" (as defined and provided for in Section 8) or death of the Executive
as provided for in Section 8. The Company may terminate Executive "without
cause" (as defined in Section 8).
(i) As used herein, the term "for cause" shall mean and be
limited to: (A) any material breach of this Employment Agreement by the
Executive which in any case is not fully corrected within thirty (30) days after
written notice of same from the Company to the Executive; (B) any fraud, theft,
conversion, criminal misconduct, breach of fiduciary duty, or gross and willful
misconduct by the Executive in connection with the performance of his duties and
responsibilities hereunder; (C) habitual breach by the Employee of any of the
material provisions of this Agreement (regardless of any prior cure thereof); or
(D) gross neglect by the Employee of his duties and responsibilities hereunder
which in any case is not fully corrected upon written notice of same from the
Company to the Employee.
d. EFFECT OF TERMINATION FOR CAUSE. In the event of
termination for any of the reasons set forth in this Section 7 (except as
otherwise provided for hereinafter with respect to "permanent disability", death
or "without cause") Executive shall be entitled to no further compensation, Base
Salary or other Benefits under this Employment Agreement, except as to that
portion of any unpaid Base Salary or other benefits accrued and earned by him
hereunder up to and including the effective date of termination.
SECTION 8. TERMINATION BY REASON OF DEATH; PERMANENT DISABILITY; OR
WITHOUT CAUSE.
a. If the Company terminates Executive "without cause" which
shall mean for any reason other than as set forth in Section 7c(i), the
Executive terminates this Agreement under Section 7b, or in the event of
Executive's death or "permanent disability" (as defined below), Executive shall
(i) be entitled
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to receive an amount equal to the full compensation including Benefits, to which
he would otherwise be entitled under this Employment Agreement for the remainder
of the Employment Period in effect as of the date of termination (the "Severance
Payment") (just as if Executive had not been so terminated and was continuing to
serve as an employee hereunder for the full Employment Period in effect as of
the date of termination) and (ii) be provided, for the remainder of the
Employment Period, with all the insurance and other benefits set forth in
Section 6a hereof (PROVIDED, HOWEVER, to the extent that the benefits in Section
6a cannot in fact be paid due to the fact that Executive is not in fact employed
by the Company, the Company promptly shall pay Executive the monetary, after-tax
equivalent thereof in U.S. Dollars, without any present value adjustment). Such
Severance Payment shall be payable in a single lump sum distribution (without
any present value adjustment) to Executive or his estate, as the case may be, no
later than ninety (90) days from the effective date of such termination.
b. PAYMENT IN THE EVENT OF PERMANENT DISABILITY. For purposes
of this Employment Agreement, Executive's "permanent disability" shall be deemed
to have occurred after one hundred twenty (120) days in the aggregate during any
consecutive twelve (12) month period, or after ninety (90) consecutive days,
during which one hundred twenty (120) or ninety (90) days, as the case may be,
Executive, by reason of his physical or mental disability or illness, shall have
been unable to discharge fully his duties under this Employment Agreement. The
date of permanent disability shall be the one hundred twentieth (120th) or
ninetieth (90th) day, as the case may be. In the event Executive shall dispute
that his permanent disability shall have occurred, he shall promptly submit to a
physical examination by a qualified practicing physician mutually selected by
the Company and the Executive and paid for by the Company (and reasonably
acceptable to the Executive). Unless such physician shall issue a written
statement to the effect that in his opinion, based on his diagnosis, Executive
is capable of resuming his employment and devoting his full time and energy to
discharging his duties within ten (10) days after the date of such statement,
such permanent disability shall be deemed to have occurred without further
dispute by Executive or Company. Notwithstanding the foregoing, the time periods
set forth in this Subsection b shall be modified as necessary so that they match
the time periods set forth in the appropriate disability insurance policy such
that there is no gap in payment of disability insurance benefits and Executive's
compensation hereunder.
SECTION 9. CHANGE OF CONTROL.
a. Notwithstanding anything herein to the contrary,
specifically including Section 7 hereof, in the event that within one (1) year
following a "Change of Control" of the Company (as defined below), Executive's
employment with the Company is either: (i) terminated by the Company, or (ii)
terminated by
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Executive because his regular duties hereunder are materially reduced or
diminished (the position and duties of Chief Financial Officer of the Company
being material to such employment), then (subject to Section 9c that provides
for a lump sum cash payment) the Company shall pay to Executive for a period of
thirty-six (36) full calendar months from the date of termination, (A) the Base
Salary in effect at the time of the termination of employment (in the same
installments as prior to termination), (B) the Benefits to which he is entitled
hereunder, and (C) when and as due, any other amounts to which the Executive is
entitled under any compensation plan of the Company, including any Performance
Bonuses (PROVIDED, HOWEVER, that to the extent that the Benefits cannot in fact
be provided or paid due to the fact that Executive is not in fact employed by
the Company, the Company shall pay to Executive the monetary, after tax
equivalent thereof, in U.S. dollars without any present value adjustment. During
the period that the Company is required to make payments to the Executive
pursuant to this Section 9a, or for a period of twelve (12) months after
termination of employment in the event the Executive elects a lump sum cash
payment hereunder, the Company shall maintain in full force and effect for the
continued benefit of the Executive, all employee benefit plans and programs in
which the Executive was entitled to participate immediately prior to the date of
termination, including without limitation, all Benefits provided pursuant to
Section 6 hereof; provided that the Executive's continued participation is
possible under the general terms and provisions of such plans and programs. In
the event that the Executive's participation and any such plan or program is
barred, the Company shall arrange to provide the Executive with benefits
substantially similar to those which the Executive would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is barred.
b. "Change of Control" shall be deemed to have occurred when:
(i) securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding voting securities
are acquired by a person or entity which is not a wholly-owned subsidiary of the
Company or any of its affiliates;
(ii) a merger or consolidation is consummated in which the
Company is a constituent corporation and which results in less than 50% of the
outstanding voting securities of the surviving or resulting entity being owned
by the then existing stockholders of the Company;
(iii) a sale or other disposition or transaction is
consummated by the Company of more than 50% of the Company's assets to a person
or entity which is not a wholly-owned subsidiary of the Company or any of its
affiliates; or
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(iv) during any period of two consecutive years,
individuals who, at the beginning of such period, constituted the Board cease,
for any reason, to constitute at least a majority thereof.
c. In lieu of payments in installments hereunder, within
thirty (30) days of termination of employment, the Executive or Company may, at
his or its sole option, elect to have all amounts to which he is entitled
hereunder, be paid in a lump sum cash payment. The lump sum cash payment
provided herein shall be due within five (5) days of notice from the Executive
of the election to receive a lump sum cash payment pursuant to this subsection.
d. It is the intention of the Company and the Executive that
no portion of any payment or benefit paid or provided under this Section or any
other payment or benefit under this Agreement, or payments to or for the
Executive under any other agreement or plan shall be deemed to be an excess
parachute payment as defined in Section 280G of the Internal Revenue Code of
1986 as amended (the "Code") or any successor provision. However, it is
understood that, depending upon elections hereunder made by the Executive, the
present value of all payments made under this Section and any other payment to
or for the benefit of the Executive in the nature of compensation, the receipt
of which is contingent on a Change of Control of the Company and to which
Section 280G of the Code or any successor provision thereto may apply, might
exceed the maximum amounts which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code or any successor
provision. In the event that the Executive becomes subject to a tax imposed by
Section 4999 of the Code or any successor provision as a result of the election
of the Executive to receive a lump sum cash payment hereunder or otherwise, the
Company shall pay to the Executive an amount equal to any excise tax imposed
upon the Executive as a result of such payment (in addition to any other payment
or benefit hereunder).
SECTION 10. CONFIDENTIAL INFORMATION. Executive recognizes and
acknowledges that the Company has, through the expenditure of substantial time,
effort and money, developed and acquired certain confidential information and
trade secrets which have become of great value to the Company in its creation,
development and operations. Executive further acknowledges and understands that
in the course of performing his duties for the Company, Executive has had and
will have access to the trade secrets and confidential information of the
Company. Executive agrees that during the course of his employment and at any
time after the termination or expiration thereof he will not make any
independent use of, publish or disclose, or authorize anyone to publish or
disclose, to any other person or organization, any of the Company's trade
secrets and the Executive agrees that during the course of his employment and
for a period of one (1) year after the termination or expiration thereof, he
will not make any
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independent use of, publish or disclose, or authorize anyone to publish or
disclose to any other person or organization, any of the Company's confidential
information, except as required in the course of his employment with the Company
or by law. Upon request of the Company and, in any event upon the cessation of
Executive's employment with the Company, whether with or without cause,
Executive will promptly return all tangible expressions of trade secrets and
confidential information in his possession and control and all copies thereof.
As used herein, the term "trade secrets and confidential information" shall mean
client lists, and other related client and applicant data, computerized
compilation of such data, training materials and information, policy and
procedure manuals, video and audio recordings of training and operation methods,
sales, services, support and marketing practices and operations, advertising
themes, information concerning possible acquisition candidates, formats of
advertising and other business methods, and techniques, processes and financial
information of any subsidiary, affiliate or the Company, all of which are not
publicly available information and/or generally known to the trade or industry
and which will be of competitive use by them. "Trade secrets and confidential
information" shall not include (A) intangible information which is generally
known and used by persons with training and experience comparable to Executive
as of the date of this Employment Agreement; (B) any information that was
already known to the recipient thereof other than by reason of any breach of any
confidentiality or non-disclosure agreement; and (C) all intangible information
which is common knowledge in the industry or otherwise legally in the public
domain.
Executive further agrees that the restrictions set forth in
this Section 10 are in addition to, and not in lieu of, any other restrictions
or obligations placed upon him, and/or any rights or remedies available to the
Company, by any statute or at common law.
SECTION 11. COVENANT NOT TO COMPETE. If, and only if this Agreement is
terminated by the Company for cause, by the Executive when the Company is not in
breach of this Agreement, or by Executive in accordance with Section 3 herein,
Executive covenants and agrees that, in order to protect the Company's
legitimate business interest in its trade secrets and confidential information,
special training, goodwill, and substantial relationships with prospective or
existing customers or suppliers during the Employment Period and for a period of
six (6) consecutive months (the "Non-Compete Period") following the expiration
or termination of this Employment Agreement or any renewal of the Employment
Agreement, Executive will not, without the prior written consent of the Company,
directly or indirectly,
a. engage, whether by virtue of stock ownership, management
responsibilities or otherwise, in companies, businesses, organizations and/or
ventures that compete with the
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business of the Company or any of its subsidiaries, affiliates or its parent
company. For the purposes hereof, the Company shall be deemed to be in the
business of operating automobile dealerships locally in the United States of
America that engage in the retailing of new and used automobiles, light duty
trucks and businesses ancillary or related thereto, PROVIDED, HOWEVER, that with
regard to any post-termination employment during the Non-Compete Period, for any
business of Executive to be deemed competitive for the purposes hereof, it must
be located within a 50-mile radius of any location where the Company is: (i)
currently conducting business, (ii) has an ownership interest of 20% or more in
an enterprise that, at the time the competing activities commence, competes with
the Company's business, or (iii) within a 50 mile radius of any location where
the Company has conducted, or has definitive plans to conduct business twelve
(12) months before or after the termination or expiration of this Employment
Agreement; or
b. become interested, directly or indirectly, whether as
principal, owner, stockholder, partner, agent, officer, director, employee,
salesman, joint venturer, consultant, advisor, independent contractor or
otherwise, in any person, firm, partnership, association, venture, corporation
or entity engaging directly or indirectly in any of the activities described in
Subsection 11a above; or
c. knowingly solicit the employment of any of the Company's
Personnel (as hereinafter defined) customers, suppliers or distributors.
d. For purposes of this Employment Agreement:
(i) the term "Company" shall include any subsidiary, any
affiliates, any successor in interest whether by sale, merger, liquidation or
the like, and any of the Company's other subsidiaries and affiliates;
(ii) the term "Company Personnel" shall mean any person
employed by the Company, any subsidiary or any of its affiliates at any time
through the end of the term of this Employment Agreement, but excluding any
person who has left such employment for a continuous period exceeding one (1)
year;
e. None of the foregoing shall prevent Executive from holding,
or having the right to acquire, up to three percent (3%) in the aggregate of any
class of securities of any entity engaged in the prohibited activities described
above.
f. Notwithstanding anything herein to the contrary, this
Section 11 shall not be deemed to prohibit Executive from
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engaging in the business of an investment or corporate banker at any time
subsequent to the expiration or termination of this Agreement for any reason.
SECTION 12. REMEDIES IN EVENT OF BREACH.
a. INJUNCTIVE RELIEF. The parties acknowledge that each would
be irreparably harmed by any breach of the covenants contained in Sections 10
and 11 of this Employment Agreement, and that either party's remedy at law for
any breach by the other party of their obligations under Sections 10 and 11 of
this Employment Agreement would be inadequate, and would be impossible to
ascertain and therefore, in the event of the breach or threatened breach of any
obligations under Sections 10 and 11 of this Employment Agreement, either party,
in addition to any and all other remedies at law or in equity, shall have the
right to enjoin the other party from any threatened or actual activities in
violation thereof; and the parties hereby consent and agree that temporary and
permanent injunctive relief may be granted in any proceedings which might be
brought to enforce any such covenants without the necessity of proof of actual
damages and without the necessity of posting bond. In the event either party
does apply for such injunction, the other party shall not raise as a defense
thereto that such applying party has an adequate remedy at law.
b. DAMAGES; ACCOUNTING FOR PROFITS. In addition to any
injunctive relief that may be granted to the Company or Executive for breach of
this Employment Agreement, the Company and Executive shall be entitled to
recover all damages, including reasonable attorneys' fees and costs (including
paralegals' fees), sustained or incurred by the Company or Executive by reason
of a violation or threatened violation of the terms of this Employment
Agreement, and to receive such other remedy or remedies as the court determines
is appropriate. Executive covenants and agrees that, if he violates any of his
covenants or agreements under Sections 10 and 11 hereof, the Company shall be
entitled to an accounting and repayment of all profits, compensations,
commissions, remunerations or benefits which Executive directly has realized as
a result of, growing out of, in connection with, any such violation; such remedy
shall be in addition to and not in limitation of any injunctive relief or any
other rights or remedies to which the Company is or may be entitled at law or in
equity or under this Employment Agreement.
c. In the event that the Company terminates or seeks to
terminate this Agreement or the employment of the Executive hereunder and
disputes its obligation to pay or fails or refuses to pay or provide when due to
the Executive any portion of the amounts or benefits due to the Executive
hereunder and the Executive prevails in any amount, the Company shall pay or
reimburse to the Executive all costs incurred by him in such dispute or
collection effort, including reasonable attorneys'
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fees and expenses (whether or not suit is filed) and costs of litigation. The
Executive shall not be required to mitigate the amount of any payment or benefit
provided herein by seeking other employment or otherwise, nor shall the amount
of any payment or benefit provided herein be reduced by any compensation earned
by the Executive as a result of employment by another employer or by retirement
benefits after the date of termination of employment or otherwise. The payments
and benefits hereunder are in addition to any and all payments and benefits to
which the Executive is entitled under the terms of this Agreement or otherwise.
SECTION 13. REASONABLENESS. Executive has carefully read and considered
the provisions of Sections 10 and 11 hereof and, having done so, agrees that the
restrictions set forth in such sections, including, but not limited to, the time
period of restriction, the geographical areas of restriction, and the definition
of Company Products set forth therein, are fair and reasonable and are
reasonably required for the protection of the legitimate business interests of
the Company, and further that the geographical areas of restriction set forth
therein accurately reflect the area in which he will be actively engaged in the
performance of services.
SECTION 14. NO INCONSISTENT OBLIGATIONS. Executive represents and
warrants that no action required of his under this Employment Agreement or any
other agreements or understandings, written or oral, entered into with the
Company will conflict with, breach or otherwise impair any previously existing
agreements or understandings, whether written or oral, into which Executive has
entered with other persons or entities, including agreements with respect to
proprietary information or non-competition.
SECTION 15. NOTICES. Any notice to be given hereunder shall be deemed
to be given when delivered by hand or by overnight courier to the party for whom
the notice is intended, or three (3) days after notice is placed in the U.S.
mail properly addressed to the party for whom notice is intended, at the
following address:
If to the Company: Smart Choice AutomotiveGroup, Inc.
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
If to Executive: Xxxx X. Xxxxxx
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
SECTION 16. BINDING EFFECT AND GOVERNING LAW. This Employment Agreement
supersedes all prior understandings and agreements between the parties with
respect to the subject matter
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hereof. This Employment Agreement shall be binding upon the legal
representatives, heirs, distributees, successors and assigns of the parties. The
Employment Agreement contains the entire agreement of the parties, and may not
be changed orally but only in writing signed by the party against whom
enforcement of any such change is sought. It is agreed that a waiver by either
party of a breach of any provision of this Employment Agreement shall not be
operated or be construed as a waiver of any subsequent breach by that same
party. This Employment Agreement shall be governed by the laws of the State of
Florida.
SECTION 17. SEVERABILITY. In the event that any terms or provisions of
this Employment Agreement shall be held to be invalid or unenforceable by a
court of competent jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remaining terms and provisions
hereof.
SECTION 18. ASSIGNABILITY. The rights or obligations contained in this
Employment Agreement shall not be assigned, transferred, or divided in any
manner by Executive or Company, without the prior written consent of the other;
PROVIDED, HOWEVER, that nothing in this Section 18 shall preclude: (i) Executive
from designating a beneficiary to receive any benefits hereunder upon his death,
or the executors, administrator or other legal representatives of Executive or
his estate from assigning any rights hereunder to the person(s) entitled
thereto; or (ii) the Company's right to assign this Employment Agreement to a
related entity subsequent to any merger, stock for stock exchange,
reorganization, or otherwise as set forth in Section 11f. Notwithstanding the
foregoing, this Employment Agreement shall be binding on any entity which by
purchase of assets, merger, or otherwise, becomes a successor to the business of
the Company.
SECTION 19. DIRECTOR & OFFICER LIABILITY INSURANCE. The Company shall
obtain Director & Officer Liability Insurance of a type that is usual and
customary for businesses similar to Company.
SECTION 20. HEADINGS. The headings of paragraph herein are included
solely for convenience of reference and shall not control the meaning or
interpretation and performance of any of the provisions of this Employment
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed the day and year first above written.
COMPANY:
SMART CHOICE AUTOMOTIVE GROUP, INC.
By:
-----------------------------------
EXECUTIVE:
-----------------------------------
Xxxx X. Xxxxxx
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