Exhibit 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of this 13th
day of February, 1997, by and between LIBERTY FINANCE CO., a Florida
corporation (the "Company"), and C. XXXXXXXX XXXXXXX, individual (the
"Employee");
W I T N E S S E T H:
WHEREAS, the Employee has extensive experience relating to all aspects
of the management and operation of automobile dealerships for used cars,
including (without limitation) leasing and other financing activities in
connection therewith; and
WHEREAS, the Employee has heretofore been employed by Liberty Finance
Company, Team Automobile Sales & Finance, Inc. and Wholesale Acquisitions,
Inc., the businesses of which are being acquired by the Company and its
affiliates on or about the date hereof; and
WHEREAS, to promote the ongoing business of the Company, the Company
desires to assure itself of the right to the Employee"s services from and
after the date hereof, on the terms and conditions of this Agreement; and
WHEREAS, the Employee is willing and able to render his services to
the Company from and after the date hereof, on the terms and conditions of
this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. Nature of Employment.
(a) Subject to the terms and conditions of this Agreement, the
Company shall, throughout the term of this Agreement, retain the Employee,
and the Employee shall render services to the Company, in a managerial
capacity and with the Controller of the Company. In such capacity, the
Employee shall have and exercise responsibility for managing, supervising,
overseeing and actively participating in those aspects of the Company"s day-
to-day business in central Florida as are assigned by the President,
another employee designated by the President and/or the board of directors
(the "Board"), together with such other similar or related duties as may be
assigned to the Employee from time to time by the Board. The Employee may
also be given additional titles, and may be assigned responsibilities on
behalf of certain of the Company"s affiliates, without requirement of
additional compensation hereunder.
(b) Throughout the period of his employment hereunder, the
Employee 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 Board, including but not limited to
the standard policies and procedures of the Company as in effect from time
to time; (iii) satisfactorily perform those duties assigned to Employee, in
the reasonable discretion of the Board; and (iv) do such traveling as may
reasonably be required in connection with the performance of such duties
and responsibilities; provided, however, that the Employee shall not be
assigned to regular duties that would reasonably require him to relocate
his permanent residence from that first set forth above.
2. Term of Employment.
(a) Subject to prior termination in accordance with paragraph
2(b) below, the term of this Agreement and the Employee"s employment
hereunder shall commence on the date hereof and shall continue for a
continuous three (3) year period thereafter (the "Term"). The Term shall
thereafter automatically renew for additional terms of one (1) year each
unless either party gives written notice of termination to the other party
not less than ninety (90) days prior to the end of any renewal term (in
which event this Agreement shall terminate effective as of the close of
such renewal term).
(b) This Agreement:
(i) may be terminated upon mutual written agreement of the
Company and the Employee;
(ii) may be terminated, at the option of the Employee, upon
fourteen (14) days" prior written notice to the Company, in the event that
the Company shall (A) fail to make any payment to the Employee required to
be made under the terms of this Agreement within fifteen (15) days after
payment is due, or (B) fail to perform any other material covenant or
agreement to be performed by it hereunder or take any action prohibited by
this Agreement, and fail to cure or remedy same (if capable of being cured
or remedied) within thirty (30) days after written notice thereof to the
Company;
(iii) may be terminated, at the option of the Company, upon
written notice to the Employee, "for cause" (as hereinafter defined);
(iv) may be terminated, at the option of the Company, in
the event of the "permanent disability" (as hereinafter defined) of the
Employee;
(v) shall automatically terminate upon the death of the
Employee; or
(vi) may be terminated by either party for any reason or no
reason on sixty (60) days prior written notice. If the Company terminates
this Agreement under Section 2(b)(vi), then the Company shall continue to
pay the Employee his salary for a period of 120 days after the date of
termination.
(c) As used herein, the term "for cause" shall mean and be
limited to: (i) any material breach of this Agreement (including, without
limitation, the covenants contained in paragraph 5 below) by the Employee
which in any case is not fully corrected within thirty (30) days after
written notice of same from the Company to the Employee; (ii) neglect by
the Employee of his duties and responsibilities hereunder which in any case
is not fully corrected immediately upon written notice of same from the
Company to the Employee; (iii) any fraud, criminal misconduct, breach of
fiduciary duty, dishonesty, or gross and willful misconduct by the Employee
in connection with the performance of his duties and responsibilities
hereunder; (iv) the Employee being legally intoxicated (alcohol or drugs)
during business hours or while on call, or being habitually drunk or
addicted to drugs (provided that this shall not restrict the Employee from
taking physician-prescribed medication in accordance with the applicable
prescription); (v) the commission by the Employee of any crime of moral
turpitude, or any other action by the Employee which may materially impair
or damage the reputation of the Company; (vi) habitual breach by the
Employee of any of the material provisions of this Agreement (regardless of
any prior cure thereof); or (vii) repeated failure (which prior failures
were brought to Employee"s attention in writing) to satisfactorily perform
those duties assigned to Employee, in the reasonable discretion of the
Board.
(d) As used herein, the term "permanent disability" shall mean,
and be limited to, any physical or mental illness, disability or impairment
that prevents the Employee from continuing the performance of his normal
duties and responsibilities hereunder for a period in excess of three (3)
consecutive months. For purposes of determining whether a "permanent
disability" has occurred under this Agreement, the written determination
thereof by two (2) qualified practicing physicians selected and paid for by
the Company (and reasonably acceptable to the Employee) shall be
conclusive.
(e) Upon any termination of this Agreement as hereinabove
provided, the Employee (or his estate or legal representatives, as the case
may be) shall be entitled to receive any and all unpaid Base Salary and any
other amounts then due and payable to the Employee hereunder. All such
payments shall be made on the next applicable payment date therefor (as
provided in paragraph 3 below) following the effective date of termination.
Such payments shall constitute all amounts to which the Employee shall be
entitled hereunder upon termination of this Agreement.
3. Compensation and Benefits.
(a) Base Salary. As compensation for his services to be
rendered hereunder, the Company shall pay to the Employee a base salary at
the rate of EIGHTY-FIVE THOUSAND DOLLARS AND NO/100THS ($85,000) per annum
(the "Base Salary"), payable in periodic installments in accordance with
the standard payroll practices of the Company in effect from time to time.
(b) Bonus. In addition to the foregoing Base Salary, the
Employee shall be eligible to earn bonuses from time to time as may be
determined by the Board, in its sole and exclusive discretion, or in
accordance with the terms and conditions of any bonus program instituted
for employees of a similar position by the Board (the "Bonus").
(c) Other Fringe Benefits. The Company shall also make
available to the Employee, throughout the period of his employment
hereunder, such benefits and perquisites as are generally provided by the
Company to its employees, including but not limited to eligibility for
participation in any group life, health, dental, vision, disability or
accident insurance, pension plan, profit-sharing plan, retirement savings
plan, 401(k) plan, or other such benefit plan or policy which may presently
be in effect or which may hereafter be adopted by the Company for the
benefit of its employees generally; provided, however, that nothing herein
contained shall be deemed to require the Company to adopt or maintain any
particular plan or policy. Participation in such benefit plans shall be
subject to standard waiting periods following the commencement of full-time
employment, as currently provided in such plans.
(d) Expenses. Throughout the period of the Employee"s
employment hereunder, the Company shall also reimburse the Employee, upon
presentment by the Employee to the Company of appropriate receipts and
vouchers therefor, for any reasonable out-of-pocket business expenses
incurred by the Employee in connection with the performance of his duties
and responsibilities hereunder; provided, however, that no reimbursement
shall be required to be made for any expense which is not properly
deductible (in whole or in part) by the Company for income tax purposes, or
for any expense item which has not previously been approved in accordance
with the Company"s standard policies and procedures in effect from time to
time, or otherwise approved by the Company.
4. Vacation, etc.
The Employee shall be entitled to take, from time to time,
normal and reasonable vacations with pay, consistent with the Company"s
standard policies and procedures in effect from time to time, at such times
as shall be mutually convenient to the Employee and the Company, and so as
not to interfere unduly with the conduct of the business of the Company.
The Employee shall further be entitled to paid holidays,
personal days and sick days in accordance with the Company"s standard
policies and procedures in effect from time to time.
5. Restrictive Covenants.
The Employee hereby acknowledges and agrees that (i) the
business contacts, customers, suppliers, know-how, trade secrets, marketing
techniques, confidential information, financial and operating models,
promotional methods and other aspects of the business of the Company, its
affiliates and/or parent companies have been and are of value to the
Company, and have provided and will hereafter provide the Company with
substantial competitive advantages in the operation of its business, (ii)
he has and will continue to have detailed knowledge and possesses and will
possess confidential information concerning the business and operations of
the Company, (iii) the restrictions set forth in this Section are
reasonably necessary to protect the legitimate business interests of the
Company, and (iv) but for Employee"s agreement to be governed by the
restrictions set forth in this Section 5, the Company would not have
entered into this Agreement. The Employee hereby further acknowledges that
his business skills are not uniquely suited to businesses of the type
conducted by the Company, and that, if required, he could readily adapt and
utilize such skills in one or more other types of businesses.
The Employee shall not, directly or indirectly, for himself
or through or on behalf of any other person or entity:
(i) at any time, divulge, transmit or otherwise disclose or
cause to be divulged, transmitted or otherwise disclosed, any business
contacts, client or customer lists, technology, know-how, trade secrets,
marketing techniques, contracts or other confidential or proprietary
information of the Company of whatever nature, whether now existing or
hereafter created or developed (provided, however, that for purposes
hereof, information shall not be considered to be confidential or
proprietary if (A) it is a matter of common knowledge or public record, (B)
it is generally known in the industry, or (C) the Employee can demonstrate
that such information was already known to the recipient thereof other than
by reason of any breach of any obligation under this Agreement or any other
confidentiality or non-disclosure agreement); and/or
(ii) at any time during the period from the date hereof
through and including the date of the expiration or termination of the
Employee"s employment with the Company, and for an additional period of one
(1) year thereafter in the event that such termination is effected by the
Company "for cause" or is effected by the Employee other than pursuant to
paragraph 2(b)(ii) above (collectively, the "Restrictive Period"), directly
or indirectly invest, carry on, engage or become involved, either as an
employee, agent, advisor, officer, director, stockholder (excluding
ownership of not more than 3% of the outstanding shares of a publicly held
corporation if such ownership does not involve managerial or operational
responsibility), manager, partner, joint venturer, participant or
consultant, in any business enterprise (other than the Company or its
subsidiaries, affiliates, successors or assigns) which (A) is located or
operating, or solicits customers located, within 50 miles of where the
Company or any of its affiliates has a place of business, at the time that
the Employee first becomes involved with such business enterprise, and (B)
derives any material revenues from the sale, lease, financing or other
transactions in new or used automobiles or other consumer vehicles;
provided that this Section 5(ii) shall be applicable prior to the
termination of this Agreement and except for a termination of this
Agreement under Section 2(b)(iii), shall be applicable after this Agreement
is terminated only if the Company is making payments of salary to the
Employee under Section 2(b) (vi).
The Employee and the Company hereby acknowledge and agree
that, in the event of any breach by the Employee, directly or indirectly,
of the foregoing restrictive covenants, it will be difficult to ascertain
the precise amount of damages that may be suffered by the Company by reason
of such breach; and accordingly, the parties hereby agree that, as
liquidated damages (and not as a penalty) in respect of any such breach,
the breaching party or parties shall be required to pay to the Company, on
demand from time to time, cash amounts equal to any and all gross revenues
derived by the breaching party or parties, directly or indirectly, from any
and all violative acts or activities. The parties hereby agree that the
foregoing constitutes a fair and reasonable estimate of the actual damages
that might be suffered by reason of any breach of this paragraph 5 by the
Employee, and the parties hereby agree to such liquidated damages in lieu
of any and all other measures of damages that might be asserted in respect
of any subject breach.
The Employee and the Company hereby further acknowledge and
agree that any breach by the Employee, directly or indirectly, of the
foregoing restrictive covenants will cause the Company irreparable injury
for which there is no adequate remedy at law. Accordingly, the Employee
expressly agrees that, in the event of any such breach or any threatened
breach hereunder by the Employee, directly or indirectly, the Company shall
be entitled, in addition to any and all other remedies available (including
but not limited to the liquidated damages provided for in paragraph 5(c)
above), to seek and obtain injunctive and/or other equitable relief to
require specific performance of or prevent, restrain and/or enjoin a breach
under the provisions of this paragraph 5 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.
In the event of any dispute under or arising out of this
paragraph 5, the prevailing party in such dispute shall be entitled to
recover from the non-prevailing party or parties, in addition to any
damages and/or other relief that may be awarded, its actual costs and
expenses (including actual attorneys" fees) incurred in connection with
prosecuting or defending the subject dispute.
(f) Employee expressly agrees that the existence of any claims
that he has or that he may have against the Company, its affiliates or
parent companies, whether or not arising from this Agreement, shall not
constitute a defense to the enforcement by the Company of this Section 5.
6. Non-Assignability.
In light of the unique personal services to be performed by the
Employee hereunder, it is acknowledged and agreed that any purported or
attempted assignment or transfer by the Employee or the Company of this
Agreement or any of Employee"s duties, responsibilities or obligations
hereunder shall be void; provided, however, that the foregoing shall not
apply to any transfer of capital stock of, any transfer of substantially
all the assets of, or any merger or comparable transaction involving, the
Company or any parent corporation of the Company.
7. Notices.
Any notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and shall be deemed
to have been given when delivered personally, by telecopier (with proof of
receipt) or three (3) days after being mailed by certified mail, return
receipt requested, addressed to the party being notified at the address of
such party first set forth above, or at such other address as such party
may hereafter have designated by notice; provided, however, that any notice
of change of address shall not be effective until its receipt by the party
to be charged therewith.
8. General.
(a) Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith. Any waiver
or amendment shall only be applicable in the specific instance, and shall
not constitute or be construed as a waiver or amendment in any other or
subsequent instance. No failure or delay on the part of either party in
respect of any enforcement of obligations hereunder shall in any manner
affect such party"s right to seek or effect enforcement at any other time
or in respect of any other required performance.
(b) Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the express prior written
consent of the other party.
(c) The captions and paragraph headings used in this Agreement
are for convenience of reference only, and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
(d) This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Florida.
(e) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(f) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but
all of which together shall constitute one and the same instrument.
(g) The prevailing party in any action or proceeding hereunder
shall be entitled to an award for its costs and actual attorneys" fees in
connection with such action or proceeding, including the fees and costs of
any appeals and all costs of collection.
(h) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof,
and supersedes all prior discussions, agreements and understandings of
every kind and nature between them as to such subject matter.
(i) This Agreement is intended for the sole and exclusive
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns,
and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit herefrom absent the express
written consent of the party to be charged with such reliance or benefit.
(j) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or
application to given circumstances, such provision shall thereupon be
deemed modified only to the extent necessary to render same valid, or not
applicable to given circumstances, or excised from this Agreement, as the
situation may require; and this Agreement shall be construed and enforced
as if such provision had been included herein as so modified in scope or
application, or had not been included herein, as the case may be.
(k) Employee represents and warrants that no action required of
him under this Agreement or any other agreements or understandings, written
or oral, entered into with the Company, its affiliates or parent companies,
will conflict with, breach or otherwise impair any previously existing
agreements or understandings, whether written or oral, into which Employee
has entered with other persons or entities, including agreements with
respect to proprietary information or non-competition.
(l) Each party to this Agreement expressly recognizes that it
results from a negotiated process in which each party was given the
opportunity to consult with counsel and contributed to the drafting of this
Agreement. Given this fact, no legal or other presumption against the
party drafting this Agreement concerning its construction, interpretation
or otherwise accrue to the benefit of any party to this Agreement and each
party expressly waives the right to assert such a presumption in any
proceedings or disputes connected with, arising out of, or involving this
Agreement.
(m) Time shall be of the essence for any performance required
hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
LIBERTY FINANCE CO.
By:/S/ J. Xxxx Xxxxxxxxxx, Xx.
As Its:Asst. V.P.
/S/ C. Xxxxxxxx Xxxxxxx
C. XXXXXXXX XXXXXXX
