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EXHIBIT 10.3(b)
EMPLOYMENT AGREEMENT
DATED AS OF APRIL 10, 1998
BETWEEN
XXXXXXX X. XXXXXX
AND
MARINEMAX, INC.
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TABLE OF CONTENTS
Page
1. Employment.......................................................... 1
2. Full Time Occupation................................................ 1
3. Compensation and other Benefits..................................... 1
(a) Base Salary................................................ 1
(b) Bonus...................................................... 1
(c) Stock Options.............................................. 2
(d) Fringe Benefits............................................ 2
(e) Reimbursement.............................................. 2
4. Term of Employment.................................................. 2
(a) Employment Term............................................ 2
(b) Termination Under Certain Circumstances.................... 2
(c) Result of Termination...................................... 3
5. Competition and Confidential Information............................ 4
(a) Interests to be Protected.................................. 4
(b) Non-Competition............................................ 5
(c) Non-Solicitation of Employees.............................. 5
(d) Confidential Information................................... 5
(e) Return of Books and Papers................................. 5
(f) Disclosure of Information.................................. 6
(g) Assignment................................................. 6
(h) Equitable Relief........................................... 6
(i) Restrictions Separable..................................... 6
6. Miscellaneous....................................................... 6
(a) Notices.................................................... 6
(b) Indulgences................................................ 7
(c) Controlling Law............................................ 7
(d) Binding Nature of Agreement................................ 7
(e) Execution in Counterpart................................... 8
(f) Provisions Separable....................................... 8
(g) Entire Agreement........................................... 8
(h) Paragraph Headings......................................... 8
(i) Gender..................................................... 8
(j) Number of Days............................................. 8
7. Successors And Assigns.............................................. 8
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 10 day of April, 1998, by
and between MARINEMAX, INC., a Delaware corporation ("Employer"), and XXXXXXX X.
XXXXXX ("Employee").
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 employs Employee, and Employee accepts such
employment, as Vice President, Chief Financial Officer, and Treasurer 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, such
employment to commence on the date hereof.
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) BASE SALARY. Employer shall pay to Employee, as
full compensation for the services rendered by Employee during Employee's
employment under this Agreement, a base salary at a rate of $150,000 per annum
to be paid in equal monthly installments, or in such other periodic installments
upon which Employer and Employee shall mutually agree. Employee acknowledges
receipt of $50,000 to defray costs and expenses of Employee accepting such
employment. On at least an annual basis, Employee's performance will be reviewed
by the Compensation Committee and an increase will be made to Employee's base
salary if, in the discretion of the Compensation Committee, an increase is
warranted.
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(b) BONUS. Employee shall be eligible to receive an
annual bonus in such an amount, if any, to be determined by the Compensation
Committee based upon such factors as may be deemed relevant by the committee,
including the performance of Employee; provided that Employee's targeted bonus
shall be not less than 40% of Employee's base salary to the extent that Employee
has performed his duties in an exemplary fashion.
(c) STOCK OPTIONS AND AWARDS. Employee shall be
granted qualified stock options under Employer's Stock Option Plan, if approved
by the shareholders, to purchase 105,600 shares of Employer's Common Stock. The
exercise price and vesting of such options are to be as follows:
1) 35,600 of such options are granted at $15 per share and are
fully vested
2) 70,000 of such options are granted at $12 per share and
vest 20 percent on each of the next five anniversaries of the
date of grant.
Such options may be exercised at any time or from time to time ending 10 years
from the date of grant. Employee shall also be eligible to participate in
Employer's Stock Option Plan to the same extent as other executive employees of
Employer in a manner consistent with Employee's compensation, position, and
tenure. Notwithstanding the foregoing, any unvested options shall vest
immediately in the event of the termination of Employee's employment as
contemplated by Section 4(b)(i), Section 4(b)(ii), Section 4(b)(iii), or Section
4(b)(vi) of this Agreement.
(d) FRINGE BENEFITS. Employee shall be entitled to
participate in any 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 10 days of
presentation by Employee of evidence of the expenses incurred.
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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 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.
Notwithstanding 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. If Employee shall fail, for a
period of more than 90 consecutive days, or for 90 days within any 180 day
period, to perform any of Employee's duties under this Agreement as the result
of illness or other incapacity, Employer may, at its option and upon notice to
Employee, terminate Employee's employment affective on the date of that notice.
(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.
(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) CERTAIN ACTS. If Employee engages in an act
or acts involving a felony, moral turpitude, fraud, or dishonesty, Employer may,
at its option and upon notice to Employee, terminate Employee's employment
effective on the date of that notice.
(vi) CHANGE IN CONTROL. Employee may, at his
option and upon notice to Employer, terminate Employee's employment effective on
the date of the notice in the event of a "Change of Control" of Employer, as
defined below.
(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 base salary as provided in Section 3(a) above for
a period of one year after such
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termination plus an amount equal to any earned bonus but unpaid to the date of
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 remainder of the term of this Agreement
or, at Employee's option, such amount in a lump sum. 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. In the event of
termination of Employee's employment pursuant to Section 4(b)(vi) above,
Employer shall pay Employee his fixed salary for the balance of the term of this
Agreement, any unpaid fringe benefits, and such bonus as may have been earned
prior to the Change in Control, all within 10 days after the termination of
employment.
(d) CHANGE IN CONTROL. The term "Change in Control"
of Employer shall mean a change in control of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 as in effect on the date
of this Agreement or, if Item 6(e) is no longer in effect, any regulations
issued by the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 which serve similar purposes; provided that, without
limitation, such a Change in Control shall be deemed to have occurred if and
when (i) any person (as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) directly or indirectly of
equity securities of Employer representing 20 percent or more of the combined
voting power of Employer's then-outstanding equity securities, except that this
provision shall not apply to an acquisition which has been approved by at least
75 percent of the members of the Board of Directors who are not affiliates or
associates of such person and by at least 80 percent of the issued and
outstanding shares of Employer's Common Stock beneficially owned by
non-affiliates of such person; (ii) during the period of this Agreement,
individuals who, at the beginning of such period, constituted the Board of
Directors of Employer (the "Original Directors"), cease for any reason to
constitute at least a majority thereof unless the election or nomination for
election of each new director was approved (an "Approved Director") by the
unanimous vote of a Board of Directors constituted entirely of Existing
Directors and/or Approved Directors; (iii) a tender offer or exchange offer is
made whereby the effect of such offer is to take over and control Employer, and
such offer is consummated for the equity securities of Employer representing 20
percent or more of the combined voting power of Employer's then-outstanding
voting securities; (iv) Employer is merged, consolidated, or enters into a
reorganization transaction with another person and, as the result of such
merger, consolidation, or reorganization, less than 75 percent of the
outstanding equity securities of the surviving or resulting person shall then be
owned in the aggregate by the former stockholders of Employer; or (v) Employer
transfers substantially all of its assets to another person or entity which is
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not a wholly owned subsidiary of Employer. Sales of Employer's Common Stock
beneficially owned or controlled by Employee shall not be considered in
determining whether a Change in Control has occurred. Notwithstanding the
foregoing, none of Employer's initial public offering or the concurrent mergers
involving the Employer and its various Founding Companies shall be deemed to be
a change in control.
5. COMPETITION AND CONFIDENTIAL INFORMATION.
(a) INTERESTS TO BE PROTECTED. 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 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
he should terminate his 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 any competitive business conducted within the Restricted Territory (as
defined below). As used herein, the term "competitive business" shall mean any
business that sells or provides or attempts to sell or provide products or
services the same as or substantially similar to the products or services sold
or provided by Employer during Employee's employment hereunder, and the term
"Restricted Territory" shall mean any state in which Employer sells products or
provides services during Employee's employment hereunder.
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(c) NON-SOLICITATION OF EMPLOYEES. 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, 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.
(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 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.
(e) RETURN OF BOOKS AND PAPERS. 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
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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,
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) 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:
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(1) If to Employer:
00000 X.X. 00 Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. XxXxxx Xx.
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:
--------------------------------
--------------------------------
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.
(b) 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.
(c) CONTROLLING LAW. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed in accordance with the laws of the state of Arizona,
notwithstanding any Arizona or other conflict-of-interest provisions to the
contrary.
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(d) 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, except that
no party may assign or transfer such party's rights or obligations under this
Agreement without the prior written consent of the other party.
(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) GENDER. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine,
or neuter, as the context requires.
(j) NUMBER OF DAYS. In computing the number of days
for purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays, and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday, or /holiday, then the final day shall be
deemed to be the next day that is not a Saturday, Sunday, or holiday.
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7. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto;
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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
MARINEMAX, INC.
By: /s/ Xxxxxxx X. XxXxxx Xx.
-------------------------
Xxxxxxx X. XxXxxx Xx.
/s/ Xxxxxxx X. XxXxxx
-------------------------
Xxxxxxx X. XxXxxx
