1
EXHIBIT 10.128
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made as of this 1st day of March, 1998 between BLUEGREEN
CORPORATION, a Massachusetts corporation (hereafter "Bluegreen"), having a usual
place of business in Boca Raton, Florida, and XXXXXXX X. XXXXXXX (hereafter
"Employee"), an individual and resident of Florida.
1. GENERAL.
Employee is, and for some time has been, General Counsel of Bluegreen.
The parties desire to enter into this Agreement to ensure the continued
service of Employee to Bluegreen and to ensure Employee of his long term
employment as General Counsel of Bluegreen. This Agreement supersedes and
replaces all other employment agreements between the parties and sets forth the
terms and conditions of employment.
The parties agree that Employee has, and will continue to have, a
thorough knowledge of the business and affairs of Bluegreen, both past and
present, and, by reason of his position, of its future plans, and that this
knowledge does and will include proprietary knowledge, trade secrets and all
manner of confidential, proprietary, sensitive and confidential information.
NOW, THEREFORE, the parties agree further as follows:
2. TERM. The term of this Agreement shall be for three (3) years from
date hereof, provided further that this Agreement shall automatically renew
itself at the end of each year unless terminated as provided in paragraph 8
hereof, or unless extended by the agreement of the parties.
3. POSITION. Employee shall be employed as General Counsel of Bluegreen
during the term hereof.
4. DUTIES. Employee shall have and perform the duties customarily
assumed by the general counsel of a corporation, which shall include duties over
the affairs of Bluegreen and such other duties as shall be assigned to him by
the Chief Executive Officer. Additionally, Employee shall have duties, authority
and responsibility commensurate with his position and those of executives of
similarly sized companies in the industry of which Bluegreen is a part.
Employee shall devote all of his business time to the business and
affairs of Bluegreen, except that with consent of the Chief Executive Officer he
may pursue other business and affairs.
Employee shall, except as above, devote his business time exclusively
to the performance of his duties hereunder and shall carry out his duties in a
good and professional manner.
2
Employee shall be subject, and shall report, to the Chief Executive
Officer of Bluegreen.
5. COMPENSATION. Beginning with the commencement of the next fiscal
year Bluegreen (April 1, 1998), the base salary of Employee shall be $175,000
annually, payable bi-weekly. (Prior to that time the base salary shall be
$175,000.) This base salary shall not be reduced during the term of this
Agreement.
6. BONUS. Employee shall be eligible to receive cash bonuses payable
annually (or at such lesser intervals as may be approved by the Board of
Directors), pursuant to the incentive bonus plan of Bluegreen as approved by the
Board of Directors from time to time.
7. BENEFITS.
(a) Employee shall be entitled, in accordance with Bluegreen's
general policies and procedures for management personnel, to participation in
any pension, savings, 401(k), stock option, employee stock ownership and
profit-sharing plans, health insurance, leave, vacation and other employment
benefits as are made available from time to time by the Board to or for the
benefit of Company management.
(b) During his term of employment, Employee shall be entitled
to prompt reimbursement of all reasonable expenses incurred in the course of and
pursuant to the performance of his duties hereunder and in connection with
promoting and carrying out the business of Bluegreen. Employee agrees to
maintain adequate documentary proof and written records, in such detail as the
Company may reasonably request, of all fees, costs and expenses to be reimbursed
by the Company hereunder.
(c) Employee shall be eligible to receive stock options as may
be approved by the Board of Directors from time to time.
8. AUTOMATIC RENEWAL; NOTICE OF NON-RENEWAL.
(a) This Agreement shall automatically renew itself at the end
of each year of the Agreement, unless either party shall give notice to the
other of its intention not to renew the Agreement, in which case the Agreement
shall terminate at the expiration of its stated three (3) year term. Any notice
of intention not to renew shall be given at least ninety (90) days prior to the
expiration of the applicable term.
(b) A notice of non-renewal by Bluegreen shall be deemed a
termination without cause as of the end of the then term, except that if the
determination by Bluegreen not to renew is based upon an event or action which
would permit a for cause termination, it shall be deemed a "for cause"
termination.
A notice by Employee shall be deemed a termination without cause.
3
(c) Bluegreen may, by written notice to Employee, terminate
this Agreement with or without cause at any time.
9. TERMINATION WITHOUT CAUSE.
(a) Bluegreen may, by written notice to Employee, terminate
Employee's employment hereunder at any time without cause, or elect not to renew
this Agreement without cause, provided that it delivers to Employee written
notice of such termination or election and provides to Employee the payments
required in this paragraph. Upon termination of Employee's employment pursuant
to this Paragraph , Employee shall be paid the base salary to which Employee is
entitled under paragraph 5 hereof, at Bluegreen's regular and customary
intervals for such payment.
The following events shall, ipso facto, constitute a termination
without cause:
(i) Employee is assigned to any position, duties or
responsibilities that are significantly diminished when compared with the
position, duties or responsibilities of the Employee on the date of this
Agreement, except when such action is taken because of Employee's inability to
perform his duties;
(ii) the Employee is requested to engage in conduct
that is reasonably likely to result in a violation of law;
(iii) the failure by Bluegreen to obtain the
assumption of, and agreement to perform, this Agreement by any successor to its
business;
(iv) repudiation by Bluegreen of any material
obligation of Bluegreen under this Agreement;
(v) the sale of all or substantially all of the
business and/or assets of Bluegreen or the liquidation of Bluegreen.
The payments shall continue for twelve (12) months following
termination.
(c) In the event of a termination of Employee's employment
under the preceding subparagraph, and thereafter Employee obtains other
employment then, to the extent that Employee receives compensation (whether in
the form of salary, bonus or otherwise) from such other employment, the payments
to be made by Bluegreen under any provision of this Agreement shall be
correspondingly reduced, dollar-for-dollar, by such compensation received by
Employee through such other employment.
Upon the termination of employment, Bluegreen shall further promptly
pay to Employee all other amounts to which Employee is entitled (eg. expense
accounts, vacation pay, etc.).
4
(d) Upon termination without cause by Bluegreen, Employee
shall, in addition to the payment of the base salary above provided for, and to
all other amounts due him from Bluegreen, receive at the same time as bonus
payments are made to other executive Employees, a pro rata share of any bonus
payable for the fiscal year during which the termination occurred, determined
upon the same basis that his bonus would have been determined had he continued
in employment for the entire fiscal year of termination, provided that at the
time of payment he is not in breach of any of the continuing obligations imposed
upon him in paragraph 15 hereof.
(e) Upon Employee's termination by Bluegreen without cause,
all options theretofore granted to Employee that are not vested shall
immediately vest.
10. TERMINATION BY EMPLOYEE. If Employee terminates this Agreement, or
gives notice of his intention not to renew, Employee shall be entitled to
receive only those amounts owing to him as of the time of the termination of his
employment, which amounts shall be paid to him promptly on the termination of
employment.
11. DISABILITY. In the event that Employee shall be incapacitated by
reason of mental or physical disability during the term of his employment
hereunder so that he is substantially prevented from performing his duties and
services hereunder for a period of ninety (90) consecutive days, or for shorter
periods aggregating 120 days during any 12-month period, Bluegreen thereafter
shall have the right to terminate Employee's employment under this Agreement by
sending written notice of such termination to Employee or his legal
representative and thereupon Employee's employment hereunder shall immediately
terminate. Upon such termination, Employee shall be entitled to receive and
shall be paid by Bluegreen, all amounts for expenses, etc. properly due to
Employee, and on a bi-weekly basis, his base salary as in effect on the date of
termination for twelve (12) months. Employee shall accept such payments in full
discharge and release of Bluegreen of and from any further obligations under
this Agreement. Such discharge and release shall not affect any rights or
remedies which may be available to Employee otherwise than under this Agreement.
12. DEATH. In the event of Employee's death during the term of his
employment hereunder, Employee's designated beneficiary or, if no such
beneficiary shall have been designated by Employee, the estate of Employee,
shall be entitled to receive and shall be paid by Bluegreen any and all of
Employee's unpaid salary compensation due as of the date of his death, and any
other amounts due to Employee, in each case through the date of death. Employee
shall be entitled to no payments or benefits following the date of death. Such
payments shall be in full discharge and release of Bluegreen of and from any
further obligations under this Agreement. Such discharge and release shall not
affect any rights or remedies which may be available to Employee (or Employee's
estate) otherwise than under this Agreement.
5
13. TERMINATION FOR CAUSE.
(a) Bluegreen shall have the right to terminate the employment
of Employee, or elect not to renew this Agreement, for cause, at any time if:
(i) Employee shall be convicted by a court of
competent and final jurisdiction of any crime (whether or not involving
Bluegreen) which constitutes a felony in the jurisdiction involved or shall be
habitually drunk or intoxicated in public or otherwise commit acts of moral
turpitude in such a manner as to materially and adversely reflect upon the
reputation of Bluegreen or its senior management; or
(ii) Employee shall commit any act of embezzlement,
fraud or similar dishonest and injurious conduct against or with respect to
Bluegreen; or
(iii) Employee shall demonstrate injurious misconduct
in connection with the performance of his duties and responsibilities under this
Agreement (and/or as assigned to him from time to time by the Chief Executive
Officer in accordance with the provisions hereof); or
(iv) Employee shall demonstrate negligent, reckless
or grossly negligent and injurious conduct in connection with the performance
of, or a gross disregard for, his duties and responsibilities under this
Agreement and as assigned to him from time to time by the Chief Executive
Officer in accordance with the provisions hereof.
(b) Any determination to terminate Employee for Cause pursuant
to paragraph 13(a) hereof shall be made in the good faith judgment of the Chief
Executive Officer.
(c) In the event that the employment of Employee shall be
terminated by Bluegreen for cause pursuant to this paragraph, Employee shall be
entitled to receive his salary, and any other amounts properly due from
Bluegreen to Employee, through the date of such termination. Employee shall
accept payment pursuant to this subparagraph in full discharge and release of
Bluegreen of and from any further obligations under this Agreement. Nothing
contained in this paragraph shall constitute a waiver or release by Bluegreen of
any rights or claims it may have against Employee.
14. TERMINATION BY EMPLOYEE. Employee may, by written notice to
Bluegreen, terminate Employee's employment hereunder, provided that he delivers
to Bluegreen not less than ninety (90) days advance written notice of such
termination (the ninety (90) day period between such notice and termination
being referred to herein as the "Termination Period"). During the Termination
Period, so long as Employee performs his duties and responsibilities as required
in accordance with this Agreement (and so long as Bluegreen is not entitled to
terminate Employee for cause pursuant to paragraph 13 hereof, in which case the
provisions of paragraph 13, and not this paragraph 14, shall apply), Employee
shall be entitled to the salary, bonus and benefits (to the extent earned,
accrued and payable) described in this Agreement, in
6
each case, payable at Bluegreen's regular and customary intervals for such
payment or benefit, through the date of termination. Employee shall be entitled
to no payments or benefits following the date of any termination under this
paragraph 14. Employee shall accept such payments and benefits in full discharge
and release of Bluegreen of and from any further obligations under this
Agreement. Such discharge and release shall not affect any rights or remedies
which may be available to Employee otherwise than under this Agreement.
15. RESTRICTION ON EMPLOYEE'S ACTIVITIES FOLLOWING TERMINATION.
Employee agrees that following termination of his employment for any reason, and
for a period of twelve (12) months thereafter:
(a) NON-COMPETITION. Employee shall not, directly or
indirectly, for himself or any other person or entity, engage in or have any
interest in any sole proprietorship, partnership, corporation, association or
business or any other person or entity (whether as an employee, officer,
director, partner, agent, security holder, creditor, consultant or otherwise)
that, directly or indirectly, engages in competition (as defined herein) with
Bluegreen and/or any subsidiary; provided, however, that Employee may acquire,
solely as an investment, shares of capital stock or other equity securities of
any company which are traded on any national securities exchange or are
regularly quoted in the over-the-counter market, so long as the Employee does
not control, acquire a controlling interest in or become a member of a group
which exercises direct or indirect control of, more than five percent (5%) of
any class of capital stock of such corporation. The Employee acknowledges that
Bluegreen would be severely and adversely affected if the Employee engages in
competition with Bluegreen.
(b) NONDISCLOSURE. Employee will not divulge, communicate,
utilize or exploit in any way other than in performing his duties hereunder, any
material confidential information (as hereinafter defined) pertaining to the
business of Bluegreen. Any material confidential information or data now or
hereafter acquired by the Employee with respect to the business of Bluegreen
(which shall include material information concerning Bluegreen's financial
condition, prospects, customers, methods of doing business, including purchasing
and sourcing information and marketing and promotion of Bluegreen's products and
services) shall be deemed a valuable, special and unique asset of Bluegreen that
is received by the Employee in confidence and as a fiduciary, and Employee shall
remain a fiduciary to Bluegreen with respect to all of such information during
the Employee's employment hereunder and for a period of twelve (12) months
thereafter. In addition, with respect to specific contractual relationships of
Bluegreen, Employee shall not divulge, communicate or utilize or exploit in any
way other than in performing his duties hereunder and shall remain a fiduciary
with respect to confidential information relating to such contractual
relationships of Bluegreen for the longer of (a) the term of such contract, or
(b) twelve (12) months after the end of the Employee's employment hereunder. For
purposes of this Agreement "confidential information" means information
disclosed to the Employee or known by the Employee as a consequence of or
through his employment by Bluegreen (including information conceived,
originated, discovered or developed by the Employee) prior to or after the date
hereof, and not generally known, about Bluegreen's products and services.
7
(c) NON-SOLICITATION OF EMPLOYEES. Employee will not, directly
or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity, attempt to employ or enter into any
contractual arrangement with any employee or former employee of Bluegreen,
unless such employee or former employee has not been employed by Bluegreen for a
period in excess of six (6) months.
(d) BOOKS AND RECORDS. All books, records, accounts and
similar tangible repositories of confidential information of Bluegreen, whether
prepared by Employee or otherwise coming into Employee's possession, shall be
the exclusive property of Bluegreen and shall be returned immediately to
Bluegreen on termination of this Agreement, or at the request of the Chief
Executive Officer at any time.
(e) Competition, as used herein, shall mean any organizations
or persons who are in the business of land development or time sharing within
any state or jurisdiction in which Bluegreen is, at the time of termination of
employment, itself engaged in land development or time sharing.
16. INJUNCTION. Employee acknowledges that the services to be rendered
by him are of a special, unique and extraordinary character, that, in connection
with such services, he will have access to confidential, proprietary and/or
sensitive competitive information vital to Bluegreen's business operations and
prospects and that therefore the restrictive covenants set forth in paragraph 15
are fair and reasonable, are material to this Agreement and have materially
induced Bluegreen to enter into this Agreement and provide the benefits to
Employee provided hereunder. Accordingly, Employee consents and agrees that if
he violates or breaches any of the provisions of paragraph 15, Bluegreen would
sustain irreparable harm and, therefore, in addition to any other remedies which
may be available to it, Bluegreen shall be entitled to apply to any court of
competent jurisdiction, for an injunction restraining Employee from committing
or continuing any such violation of this Agreement, or for such other equitable
or special relief that Bluegreen shall deem appropriate in view of such
violation. Nothing in this Agreement shall be construed as prohibiting Bluegreen
from pursuing any other remedy or remedies including, without limitation,
recovery of damages, permitted at law or in equity.
17. MODIFICATION OF RESTRICTIONS. In the event that any of the
provisions contained in this Agreement shall be held to be in any way an
unreasonable restriction on Employee or otherwise void or unenforceable, then
the court so holding may reduce the territory and/or period of time in which
such restriction operates, or modify or eliminate any such restriction, to the
extent necessary to render such paragraph enforceable to the maximum extent
permitted by law.
18. ARBITRATION. Save for the provisions of paragraph 16 with respect
to injunctive relief, all disputes arising under this Agreement shall be subject
to arbitration, and neither party shall bring any action in any court with
reference thereto except to obtain enforcement of any arbitration award.
Arbitration shall be in accordance with and under the rules of the
8
American Arbitration Association as in effect at the time of the dispute unless
the parties shall agree to some different alternative dispute resolution method.
All costs, expenses and awards under the arbitration or alternative
dispute resolution method shall be divided between the parties as the arbitrator
may determine.
The arbitrator's decision shall be final.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
20. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Bluegreen:
Bluegreen Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
If to Employee:
Xxxxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
21. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement of any
part thereof all of which are inserted conditioned on their being valid in law,
and, in the event that any one or more of the words, phases, sentences, clauses
or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses or section or sections had not
been inserted. If such invalidity is caused by length of time or size of area,
or both the otherwise invalid provisions will be considered to be reduced to a
period or area which would cure such invalidity.
22. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate as nor be construed
as a waiver of any subsequent breach or violation.
9
23. DAMAGES. Subject to the provisions of paragraph 18, nothing
contained herein shall be construed to prevent Bluegreen or the Employee from
seeking and recovering from the other damages sustained by either or both of
them as a result of its or his breach of any term or provision of this
Agreement.
24. NO THIRD-PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of the Employee, his heirs,
personal representative(s) and/or legal representative) any rights or remedies
under or by reason of this Agreement.
25. SUCCESSORS. This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Bluegreen and the Employee with respect to its subject matter and
supersedes all prior negotiations, agreements, understandings and arrangements,
both oral and written, between Bluegreen and the Employee with respect to his
employment.
27. COUNSEL. Bluegreen and the Employee represent and agree that each
of them have thoroughly discussed all aspects of this Agreement with their
respective attorneys, and that they have carefully read and fully understand all
of the provisions of this Agreement and have voluntarily entered into it.
28. MISCELLANEOUS. The captions and headings herein are for convenience
of reference only and shall not be deemed to be a par of the substance of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
BLUEGREEN CORPORATION
/s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- -----------------------------
Chairman Xxxxxxx X. Xxxxxxx
--------------------------
Board of Directors
Bluegreen Corporation
