EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into at
Orlando, Florida on the ____ day of ________________, 1999, by and between X.
XXXXXX XXXXXXXXX (hereinafter referred to as the "Employee"), and HOLIDAY RV
SUPERSTORES, INC. (hereinafter referred to as the "Corporation").
The parties hereto, intending to be legally bound, do hereby agree as
follows:
1. EMPLOYMENT
1.1 Position and Duties. The Corporation does hereby employ the Employee
and the Employee hereby accepts such employment as President and Chief Executive
Officer upon the terms and provision set forth in this Agreement. The Employee
shall perform all duties assigned to him by the Corporation, shall observe and
comply with the Corporation's rules and regulations regarding the performance of
his duties, and shall carry out and perform all orders, directions, and policies
stated to him by the Corporation periodically, either orally or in writing. The
Employee shall carry out the duties assigned to him in a trustworthy,
businesslike, and loyal manner.
1.2 Place of Employment. Unless the parties agree otherwise in writing,
during the term of this Agreement the Employee shall perform the services
required by this Agreement at the Corporation's offices in Orlando, Florida,
provided, however, that the Corporation may, from time to time, require the
Employee to travel temporarily in carrying out his duties.
2. TERM. The term of this Agreement, and the employment of the Employee
hereunder, shall commence on July 1, 1999 (the "Commencement Date") and shall
expire on June 30, 2003 unless sooner terminated in accordance with the terms
and conditions hereof.
3. COMPENSATION
3.1 Amount of Compensation. The Corporation shall pay to the Employee a
salary of One Hundred Thirty-Five Thousand Dollars ($135,000.00) per annum or
such greater amounts as may be determined by the Board of Directors of the
Corporation (the "Board") on an annual basis at the start of each year.
3.2 Bonus. In addition to the compensation described in paragraph 3.1 of
this Agreement, during each calendar year, or part thereof, during the term of
this Agreement and any renewal terms, if any, the Employee shall receive a bonus
based upon a percentage of the actual net income before taxes ("Actual Net
Income") earned by the Corporation. Any bonus due Employee shall be paid to
Employee within ninety (90) days after the end of the then fiscal year,
calculated as follows:
Percentage (%) of Actual
Actual Net Income Before Income Net Income Before Taxes
Taxes Potential Bonus Cumulative Bonus
$ 2 - $2.5 million 2.0% $50,000 $ 50,000
$ 2.5 - 5.0 million 3.0% $75,000 $125,000
3.3 Stock Options.
3.3.1 For Actual Net Income in excess of Five Million Dollars
($5,000,000.00), the Employee will receive a stock option for the Common
Stock of the Corporation, based on a formula (pro rata rounded to the
nearest $100) of Fifty Thousand (50,000) options for each Five Hundred
Thousand Dollars ($500,000.00) of net pre-tax income over and above Five
Million dollars ($5,000,000.00). Such an option, if any, will be determined
within ninety (90) days of the end of each fiscal year of the Corporation
and will be effective as of the first day of the current fiscal year, and
will be in accordance with the existing Corporation Stock Option Plan, and
at the average closing price for the Corporation Common Stock for the
twenty (20) trading days preceding the end of the Corporation's fiscal
year. All determinations will be made by the Corporation in accordance with
generally accepted accounting principles which are universally applied. In
the event of the termination of this Agreement, the Employee will be
entitled to a pro-rata bonus based on actual results through the date of
termination.
3.3.2 In addition to the stock options described in paragraph 3.3.1
hereof, within ninety (90) days of the execution date of this Agreement,
the Employee shall be granted 125,000 options to purchase common stock of
the Corporation under the Corporation Stock Option Plan at an exercise
price of $3.21 per share.
3.4 Reimbursements. The Employee shall be reimbursed by the Corporation
only for amounts actually expended by the Employee in the course of performing
duties for the Corporation where:
3.4.1 Authorization. The Employee has been authorized by the
Corporation to incur such expenses, or they are reasonably consistent with
corporate practices or policies.
3.4.2 Documentation. The Employee tenders receipts or other
documentation substantiating the amounts as required by the Corporation.
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3.5 Fringe Benefits. The Corporation agrees that the Employee shall also be
entitled to the fringe benefits authorized and adopted, from time to time, by
the Board including expense accounts, a profit sharing plan, the Employee and
dependent medical insurance and an annual physical examination. In addition, the
Corporation may furnish such other benefits to the Employee not specified herein
as its Board shall determine, from time to time, within its discretion, to be in
the best interest of the Corporation and the Employee and which are available to
senior management of the Corporation.
3.6 Life Insurance. On or before November 1, 1999, and during the term of
this Agreement, the Corporation shall procure, maintain, and pay premiums for
convertible and renewable term life insurance in the amount of $1,000,000 (the
"Life Insurance") for the Employee's life naming his wife, Xxxxxxx X. XxXxxxxxx
as the beneficiary. The Employee shall receive a copy of the Life Insurance
policy on or before December 1, 1999.
3.7 Cash Payout Upon Termination. Notwithstanding anything to the contrary
in this Agreement, in the event the Employee terminates this Agreement after
January 1, 2000, with or without cause, or the Employer terminates this
Agreement at any time, with or without cause, in lieu of Employee receiving all
compensation bonuses, stock options, reimbursements, and benefits due Employee
under this Agreement after the "Termination Date" (as defined below), the
Corporation shall pay Employee Two Hundred Fifty Thousand Dollars ($250,000)
(the "Cash Payout"), $125,000 within ten (10) days of the last date Employee is
employed by the Corporation (the "Termination Date") and the remaining $125,000
within one hundred eighty (180) days of the Termination Date, provided, however,
that in the event the Agreement is terminated during the last year of the term
of this Agreement, the Cash Payout due Employee shall be pro-rated based on the
Termination Date. The Cash Payout if the Agreement is terminated during the last
year (the fourth year) of the term of this Agreement shall be $250,000,
multiplied by a factor determined as the number of days between the Termination
Date and June 30, 2003 (the last day of the term of this Agreement), divided by
365.
4. COMPETITION. The Employee agrees that during the term of this Agreement
he diligently shall devote his time and efforts to the duties and
responsibilities assigned to him by the Corporation, and without prior express
written authorization of the Board, the Employee shall not, directly or
indirectly, either alone or in concert with others, during the term of this
Agreement.
4.1 Other Services. Perform or render any services of a business,
professional or commercial nature, relating to service or products similar to
those of the Corporation to or for the benefit of any other person of firm,
whether for compensation or otherwise, except for personal investments and for
other activities approved by the Corporation;
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4.2 Competition. Engage in any activity directly or indirectly in
competition with or adverse to the Corporation;
4.3 Solicitation. Engage in any activity for purposes of influencing or
attempting to influence the Corporation's customers, either directly or
indirectly, to conduct business with any business enterprise in competition with
the Corporation;
4.4 Competing Enterprise. Undertake or participate in any planning for or
organization of any business activity that is or will be in competition with the
Corporation in any field(s) or area(s) in which the Employee has worked or with
which the Employee has come into contact, or of which the Employee has gained
knowledge during the term of his employment under this Agreement; or
4.5 Other Activities. Engage in any other business activity that would
materially interfere with the performance of any of the Employee's obligations
and duties under this Agreement.
5. BUSINESS DISCLOSURES.
5.1 Non-Disclosure. Except as required by law or applicable regulations,
the Employee agrees that during the term of this employment with the
Corporation, he will not disclose, other than to an authorized employee,
officer, or director of the Corporation, any confidential information as to the
Corporation, including, without limitations, any confidential information
relating to the Corporation's business, trade practices, trade secrets or
"know-how" without the Corporation's prior express written consent, and that on
the termination of his employment, for any reason, he shall not remove or retain
without the Corporation's prior express written consent any figures,
calculations, letters, papers, documents or copies thereof, or any other
confidential information of any type or description as to the Corporation or its
affairs.
5.2 Use of Confidential Information. The Employee agrees that during the
term of his employment, he will not utilize, whether directly or indirectly, for
his own benefit or for the benefit of any other person(s) or concern(s), any and
all confidential information of the Corporation, including any and all
information relating to the Corporation's business, trade practices or trade
secrets or "know-how," without the prior written consent of the Corporation.
6. COMPENSATED LEAVE. The Employee shall be entitled to sick leave and
vacation time available to other members of Senior Management. Vacation time
shall not be less than 3 weeks per year. All vacation time will be prorated on a
monthly basis in the event of termination of the Employee's employment.
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7. OWNERSHIP OR INTANGIBLE PROPERTY. All processes, inventions, patents,
copyrights, trademarks, and other intangible rights that may be conceived or
developed by the Employee, either alone or with others, during the term of the
Employee's employment, whether or not conceived or developed during the
Employee's working hours and with respect to which the equipment, supplies,
facilities, or trade secret information of the Corporation or that relate to the
business of the Corporation or to the Corporation's actual or demonstrably
anticipated research and development, or that result from any work performed by
the Employee for the Corporation, shall be the sole property of the Corporation.
The Employee shall disclose to the Corporation all such matters conceived during
the term of employment, whether or not the property of the Corporation under the
terms of the preceding sentence, provided that such disclosure shall be received
by the Corporation in confidence. The Employee shall execute all documents,
including patent applications and assignments required by the Corporation to
establish the Corporation's rights under this section.
8. DISCLOSURE OF CONFIDENTIAL INFORMATION. In the course of employment
under this Agreement, the Employee may have access to confidential information
and trade secrets relating to the Corporation's business. Except as required in
the course of employment by the Corporation, the Employee will not, without the
Corporation's prior consent, for a period of three (3) years after termination
of employment, directly or indirectly, disclose to any third person any such
confidential information or trade secrets.
9. TERMINATION OF AGREEMENT.
9.1 Grounds. This Agreement shall terminate upon the occurrence of any of
the following events:
9.1.1 Expiration of Term. Upon expiration of the original term
specified in Section 2 hereof.
9.1.2 Mutual Agreement. Whenever the Corporation and the Employee
mutually agree in writing to termination.
9.1.3 Death. Upon the death of the Employee.
9.1.4 Without Cause. Upon thirty (30) days prior written notice.
9.1.5 For Cause. This Agreement may be terminated by the Board
immediately for the following causes: the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law (other than traffic violations, family law or similar
offenses), or a final cease an desist order, or a material breach of any
provision of this Agreement.
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9.2 Termination Statement. The Employee agrees that upon termination of his
employment with the Corporation, for any cause or reason, he shall execute a
Termination Statement and shall fully comply with all of the terms, conditions,
and representations contained therein.
9.3 Disability Termination. In the vent that the Employee is unable to
perform his assigned duties and responsibilities due to illness, physical or
mental disability or any other reasons, and such disability continues for a
period of six (6) consecutive months after all available sick leave has been
utilized, the Corporation may terminate this Agreement upon ten (10) days
written notice, subject to any disability payment provisions contained in this
Agreement.
10. MISCELLANEOUS.
10.1 Notices. Any notice required to be given pursuant to this Agreement
shall be effective only if in writing and delivered personally or by mail. If
given by mail, such notice must be sent by registered or certified mail, postage
prepaid, mailed to the parties at the addresses set forth on the signature page
hereof, or at such other addresses as the parties may designate from time to
time, by written notice. Mailed notices shall be deemed received two (2)
business days after the date of deposit in the mail.
10.2 Remedies.
10.2.1 Equitable Remedies. The Employee acknowledges and agrees that
in the event of any breach, violation or evasion of the terms, conditions,
and provisions of Sections 4 or 5 above, such breach, violation or evasion
shall result in immediate and irreparable injury and harm to the
Corporation and shall entitle Corporation to injunctive relief and/or
specific performance of this Agreement, as well as to all other legal or
equitable remedies to which the Corporation may be entitled.
10.2.2 Termination of Agreement. It is further agreed that in the
event of such breach, the Corporation may forthwith terminate this
Agreement, notwithstanding anything herein to the contrary.
10.3 Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall be held to be invalid or
unenforceable to any extent, the remainder of this Agreement or application of
term or provision to persons or circumstances other than those to which it is
held invalid or unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
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10.4 Waiver. No waiver of any right hereunder shall be effective for any
purpose unless in writing, signed by the party hereto possessing said right, nor
shall any such waiver be construed to be a waiver of any subsequent right, term
or provision of this Agreement.
10.5 Assignment; Effect on Agreement. It is hereby acknowledged and agreed
that the Employee's rights and obligations under this agreement are personal in
nature and shall not be assigned or delegated. This Agreement shall be binding
on and inure to the benefit of the heirs, personal representatives, successors
and assigns of the parties subject, however, to the restrictions on assignment
and delegation contained herein.
10.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
10.7 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings, oral or written. No modification, termination or attempted
waiver shall be valid unless in writing and signed by both parties.
10.8 Arbitration. Any dispute involving this Agreement shall be resolved by
arbitration before one (1) arbitrator in Orlando, Florida, in accordance with
the rules of the American Arbitration Association.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
CORPORATION:
HOLIDAY RV SUPERSTORES, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
Address:
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
___________________________________
X. Xxxxxx XxXxxxxxx
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
ADDENDUM
TO
EMPLOYMENT AGREEMENT
This is an Addendum (the "Addendum") to the Employment Agreement entered
into between X. XXXXXX XxXXXXXXX (the "Employee") and HOLIDAY RV SUPERSTORES,
INC. (the "Corporation") on September 29, 1999 (the "Employment Agreement") a
copy of the Employment Agreement being attached hereto.
WHEREAS:
A. The Employee and the Corporation entered into the Employment Agreement
on September 29, 1999;
B. Subsequent to the time, the Employee resigned as the Chief Executive
Officer and President of the Corporation, and since his resignation he has acted
as Assistant to the Chairman of the Corporation; and
C. The Corporation has requested that the Employee become the Vice
President and Chief Financial Officer of the Corporation as of October 10, 2000.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. The first sentence of Section 1.1 of the Employment Agreement is hereby
revised to read as follows:
"The Corporation does hereby employ the Employee, and the
Employee hereby accepts such employment, as the Vice President
and Chief Financial Officer of the Corporation, upon the terms
and provisions set forth in this Agreement.
2. The parties hereto acknowledge that no bonuses are due the Employee
under Section 3.2 of the Employment Agreement for then fiscal year 2000, and
that Section 3.2 of the Employment Agreement will apply to the period starting
for the fiscal year 2001.
3. Section 3.3 of the Employment Agreement is hereby amended to read as
follows:
"Employee will be granted within ninety days after October 10,
2000, at fair market value at the grant date, a fully vested
Incentive Stock Option for ONE HUNDRED FIFTY THOUSAND
(150,000) shares in accordance with the Corporation's 1999
Stock Compensation Program. In consideration of the granting
of this Option, the Employee hereby irrevocably and
unconditionally relinquishes and cancels the stock option
described in section 3.3.2 of the Employment Agreement.
4. In all other respects, the Employment Agreement is hereby ratified,
confirmed and approved.
IN WITNESS WHEREOF, the undersigned have executed this Agreement this ____
day of _________________, 2000.
EMPLOYEE:
X. XXXXXX XxXXXXXXX
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
CORPORATION:
HOLIDAY RV SUPERSTORES, INC.
By:
----------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
By:
----------------------------------
Xxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
Address:
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
