Exhibit 10.33
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of , 1999 (this "Agreement"), between
American Marine of South Florida, Inc., a Florida corporation, ("Employer"),
American Marine Recreation, Inc., a Delaware corporation ("AMRI") and D. Xxxxxx
Xxxxx ("Employee").
WHEREAS, the Employer and Employee desire to enter into an employment
agreement;
NOW, THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Nature of Employee's Services. Employer agrees to employ Employee
and Employee agrees to serve Employer as general manager of Employer. Employee
shall perform such services and duties as shall be assigned to him or delegated
to him from time to time by the Board of Directors of Employer (the "Board of
Directors"), the Executive Committee of the Board of Directors, or the Chief
Executive Officer of American Marine Recreation, Inc. (or such other designated
person) during the Employment Period. In the event that the Employer desires to
utilize the Employee for any of its affiliates, such assignments shall be on
mutually agreeable terms. Employee agrees that, except as otherwise provided
herein, he shall devote substantially all of his business time, attention and
energy to the business of Employer and its subsidiaries in the advancement of
the best interests of Employer and its affiliates.
2. Term of Employment. The term of Employee's employment under this
Agreement shall commence on the date hereof and shall be for a term of three (3)
years (the "Employment Period") subject to earlier termination or extension as
provided herein.
3. Compensation. Subject to the terms hereof, Employer agrees to pay to
Employee, subject to all applicable laws and requirements, including, without
limitation, laws with respect to withholding of federal, state or local taxes,
the annual compensation set forth below.
a. As annual salary for the services to be rendered by Employee
Employer shall pay a salary at the rate of $78,000 per annum,
payable in twelve (12) equal monthly installments ("Salary")
or such other payroll period as is utilized by the Employer
for similarly situated Employees.
b. 10% of the net income of the Employer, said net income to be
determined as if Employer were an unconsolidated corporation,
and calculated after corporate overhead of AMRI (which is
directly allocable to the operations of the dealerships
operated by the Employer), but before taxes. Employer's
accountants shall determine the Employer's net income
annually, and Employer shall make payments to Employee
semi-annually no later than 30 days after the end of the first
six month period and after the second six month period of
Employer's fiscal year.
4. Expenses: Other Perquisites.
a. Employee shall comply with all expense reporting and approval
procedures implemented by Employer's Chief Executive Officer
and Board of Directors.
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b. Employer shall pay the premiums on the Employee's and the
Employee's wife on the group health insurance plan which
Employer or its affiliates have in effect during the term of
this Agreement.
c. Employee shall be entitled to three weeks vacation during each
year of this Agreement as mutually agreed with the Employer.
d. Employee shall be entitled to participate in 401(k) plans and
stock option plan of the Employer, provided however, that
stock options granted are subject to the approval of the Board
of Directors of AMRI.
e. Employee shall have partial use of the Employer's vehicle as
designated by the Employer.
5. Termination. The Employer and Employee agree that Employee's
employment hereunder may be terminated prior to the end of the Employment Period
upon the happening of any of the following events:
a. The death of Employee;
b. At the option of the Employee at any time commencing six
months from the date hereof upon five days written notice.
c. In the event that Employee incurs a disability through
physical or mental incapacity, which renders Employee
incapable of performing the customary duties of his employment
for a period of three (3) months during while this Agreement
is in effect, provided that:
d. Immediately in the event of Employee's bankruptcy or in the
event of the Employer's bankruptcy, insolvency, liquidation or
cessation of business;
e. Immediately by the Employer whenever:
i. Employee engages in a breach of any of the terms of
this Agreement;
ii. Employee engages in conduct that constitutes gross
negligence or willful misconduct in carrying out his
duties under this Agreement; or
iii. Employee is convicted of a crime;
f. Immediately by Employee whenever the Employer engages in a
breach of any of the terms of this Agreement; or
g. Upon such terms as the Employer and Employee shall mutually
agree in writing.
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6. Indemnity. Employer and AMRI shall indemnify and hold harmless the
Employee in connection with the Employee's activities performed pursuant to this
Agreement except in connection with the Employee's gross negligence or wilful
and wanton acts of Employee.
7. Covenant Not to Compete. Notwithstanding anything contained herein
to the contrary, Employee covenants and agrees that he will not compete in any
manner with Employer in the State of Florida for three years from the date
hereof.
8. Non-Disclosure Covenant. Employee further agrees that during his
employment and thereafter without limit, he will not, without advance written
consent of the Employer, either directly or indirectly, communicate or divulge
to any person, firm or entity other than Employer and its affiliates, any
information (except that which is generally known to the public) relating to the
business, customers and suppliers, or other affairs of Employer or its
affiliates ("Confidential Information").
9. Injunctive Relief. In the event of a breach or threatened breach by
Employee of the provisions of ss.6 or ss.7, the arbitration provisions of this
Agreement to the contrary notwithstanding, the Employer shall be entitled to
proceed in any court for an injunction restraining Employee from taking any
action which would be prohibited under said sections.
10. Guarantee. AMRI hereby guarantees the obligations of the Employer
hereunder.
11. Successors and Assigns. In the event that Employer shall at any
time be merged or consolidated with any other Employer or shall sell or
otherwise transfer substantially all of its assets or business to another
Employer or entity, the provisions of this Agreement shall be binding upon and
inure to the benefit of such Employer or entity surviving or resulting from such
merger or consolidation or to which such assets or business shall be so sold or
transferred; provided, however, that nothing contained in this Section shall in
any way limit, or be construed to limit, the obligations to Employee under this
Agreement or the obligations of Employer or Employer's successors or assigns.
This Agreement shall not be assignable by Employee.
12. Notice. Any notice or other communication which is required or
permitted by this Agreement shall be in writing and shall be deemed to have been
duly given when delivered in person, transmitted by telecopy or five (5) days
after being mailed by registered or certified mail, postage prepaid, return
receipt requested, to such party at the address shown below:
IF TO EMPLOYER IF TO EMPLOYEE
0000 00xx Xxxxxx
Xxxxxxx XX 00000
Attn: Xxxxxx X. Xxxx, Xx.
Each party may, by notice or other party, change the above address.
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13. Entire Agreement; Amendments. This Agreement embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings as to the
14. Waiver. The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach thereof.
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original.
16. Arbitration. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Florida without regard to conflict of laws. Any dispute arising out
of or related to this Agreement shall be decided by arbitration in Florida under
the rules of the American Arbitration Association then in effect and shall be
referred to a single arbitrator appointed by the parties hereto. If the parties
are unable to agree on a single arbitrator within a reasonable period of time,
each party to the dispute shall appoint a single arbitrator and those so chosen
shall appoint one more. Any party failing to appoint an arbitrator after thirty
(30) days' written notice shall be deemed to consent to the arbitrators
otherwise chosen. It shall be a condition precedent to the institution of said
arbitration proceedings that the proceedings be commenced within one (1) year
from (i) the date the claim or controversy arises or (ii) the date of
termination of services or employment, whichever is first to occur, and the
failure to institute arbitration proceedings within such period shall constitute
an absolute bar to the institution of any proceedings and a waiver of all
claims. The award of the arbitrators shall be final and binding and judgment may
be entered thereon in any court of competent jurisdiction.
The parties consent to the jurisdiction of the any Federal or state
court of competent jurisdiction in the State of Florida for all purposes in
connection with arbitration, including the entry of judgment on any award. The
parties consent that any process or Notice of Motion or other application to
either of said courts, and any paper in connection with the arbitration may be
served by certified mail, return receipt requested or by personal service or in
such other manner as may be permissible under the rules of the applicable court
or arbitration tribunal provided a reasonable time for appearance is allowed.
17. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
American Marine of South Florida, Inc.
By: _______________________________________
Name:
Title:
American Marine Recreation, Inc.
By: _______________________________________
Name:
Title:
_______________________________________
D. Xxxxxx Xxxxx
