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Exhibit 10.3(e)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), by and among COCHRANS
MARINE, INC., a Minnesota corporation (the "Company"), and a wholly-owned
subsidiary of MarineMax, Inc., a Delaware corporation ("MarineMax"), MarineMax,
and Xxxxx X. Xxxxxxx ("Executive") is entered into and effective as of the 7th
day of July, 1998.
RECITALS
A. As of the date of this Agreement, the Company is engaged primarily in
the business of selling, renting and leasing, boating, nautical and other
related lifestyle entertainment products and services, and related activities
(collectively, the "Watercraft Business"), and Executive has experience in such
business.
B. Executive desires to be employed hereunder by the Company in a
confidential relationship wherein Executive, in the course of his employment
with the Company, has and will continue to become familiar with and aware of
information as to the customers of the Company and those of other companies
affiliated with MarineMax, their specific manner of doing business, including,
without limitation, the processes, techniques and trade secrets utilized by the
Company and MarineMax, and their future plans with respect thereto, all of which
has been and will be established and maintained at great expense to the Company
and MarineMax; such information being recognized by Executive to be proprietary
to the Company and MarineMax, and a trade secret and constituting valuable
goodwill of the Company and MarineMax.
C. The Company desires to employ Executive, and Executive desires to
accept such employment, pursuant to the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive, and Executive hereby agrees
to act, as President of the Company, and as Senior Vice President of Company's
parent, MarineMax. As such, Executive shall have responsibilities, duties and
authority reasonably accorded to, expected of, and consistent with Executive's
position as, President of the Company and will report directly to the Board of
Directors of the Company (the "Board"). Executive hereby accepts this employment
upon the terms and conditions herein contained and, subject to paragraph 1(c)
hereof, agrees to devote his best efforts and substantially all of his business
time and attention to promote and further the business of the Company and
MarineMax.
(b) Executive shall faithfully adhere to, execute and fulfill all
lawful policies established by the Company.
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(c) Executive shall not, during the term of his employment hereunder,
be engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes in any material respect with
Executive's duties and responsibilities hereunder. The foregoing limitations
shall not be construed as prohibiting Executive from making personal investments
in such form or manner as will neither require his services in the operation or
affairs of the companies or enterprises in which such investments are made nor
violate the terms of paragraph 3 hereof.
(d) Executive shall not be required by the Company or in the
performance of his duties to relocate his primary residence.
2. COMPENSATION. For all services rendered by Executive, the Company
shall compensate Executive as follows:
(a) BASE SALARY. Effective the date hereof, the base salary payable
to Executive shall be One Hundred Fifty Thousand Dollars ($150,000.00) per year,
payable on a regular basis in accordance with the Company's standard payroll
procedures but not less than monthly. On at least an annual basis, the Board
will review Executive's performance and may make increases to such base salary
if, in its sole discretion, any such increase is warranted. In no event shall
Executive's base salary be reduced to a level below One Hundred Fifty Thousand
Dollars ($150,000.00).
(b) BONUS. Executive shall be eligible to receive an annual bonus in
such an amount, if any, to be determined by a committee of the Board based upon
such factors as may deemed relevant by the Board, in its sole discretion,
including, without limitation, the performance of Executive.
(c) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Payment of all premiums for coverage for Executive and his
dependent family members under health, hospitalization, disability, dental, life
and other insurance plans that the Company may have in effect from time to time,
benefits provided to Executive under this clause (i) to be on terms no less
favorable than the benefits provided to other MarineMax executives at comparable
levels of employment.
(ii) Reimbursement for business travel and other out-of-pocket
expenses reasonably incurred by Executive in the performance of his services
pursuant to this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy.
(iii) Paid vacation in accordance with the applicable policy of
the Company as in effect from time to time, but in no event shall Executive be
entitled to less than four (4) weeks paid vacation per year.
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(iv) The Company shall provide Executive with other executive
perquisites as may be available to or deemed appropriate for Executive by the
Board and participation in all other Company-wide employee benefits as are
available from time to time.
3. NON-COMPETITION AGREEMENT.
(a) Executive will not, during the period of his employment by or
with the Company, and for a period of two (2) years immediately following the
termination of his employment under this Agreement, for any reason whatsoever,
other than a termination by the Company without Good Cause, or by Executive for
Good Reason (as hereinafter defined), directly or indirectly, for himself or on
behalf of or in conjunction with any other person, company, partnership,
corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales representative, in
any Watercraft Business in direct competition with the Company, MarineMax or any
of the subsidiaries of MarineMax, within one hundred (100) miles of where the
Company, MarineMax or any of MarineMax's subsidiaries conduct business,
including any territory serviced by the Company or MarineMax or any of such
subsidiaries (the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company, MarineMax or any of the subsidiaries of
MarineMax, in a managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company, MarineMax
or the applicable subsidiary thereof;
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of the
Company, MarineMax or any of the subsidiaries of MarineMax, within the Territory
for the purpose of soliciting or selling products or services in direct
competition with the Company, MarineMax or its subsidiaries within the
Territory;
(iv) call upon any prospective acquisition candidate, on
Executive's own behalf or on behalf of any competitor, which candidate was, to
Executive's actual knowledge after due inquiry, either called upon by the
Company or MarineMax, or for which the Company or MarineMax made an acquisition
analysis, for the purpose of acquiring such entity.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from acquiring for investment purposes only not more than
three percent (3%) of the capital stock of a competing business, whose stock is
traded on a national securities exchange or on an over-the-counter or similar
market.
(b) Because of the difficulty of measuring economic losses to the
Company and MarineMax as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be caused to the
Company and MarineMax for which they would have no other adequate remedy,
Executive agrees that the foregoing covenant may be enforced by MarineMax or the
Company in the event of breach by him, by injunctions and restraining orders.
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(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the Company or MarineMax, as the case may be
(including MarineMax's other subsidiaries) on the date of the execution of this
Agreement and the current plans of MarineMax (including MarineMax's other
subsidiaries); but it is also the intent of the Company and Executive that such
covenants be construed and enforced in accordance with the changing activities,
business and locations of the Company and MarineMax, as the case may be
(including MarineMax's other subsidiaries) throughout the term of this covenant,
whether before or after the date of termination of the employment of Executive.
For example, if, during the term of this Agreement, the Company or MarineMax, as
the case may be (including MarineMax's other subsidiaries) engages in new and
different activities, enters a new business or establishes new locations for its
current activities or business in addition to or other than the activities or
business enumerated under the Recitals above or the locations currently
established therefor, then Executive will be precluded from soliciting the
customers or employees of such new activities or business or from such new
location and from directly competing with such new business within one hundred
(100) miles of its then-established operating location(s) through the term of
this covenant.
It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company or MarineMax
(including MarineMax's other subsidiaries), or similar activities or business in
locations the operation of which, under such circumstances, does not violate
clause (i) of this paragraph 3, and in any event such new business, activities
or location are not in violation of this paragraph 3 or of Executive's
obligations under this paragraph 3, if any, Executive shall not be chargeable
with a violation of this paragraph 3 if the Company or MarineMax (including
MarineMax's other subsidiaries) shall thereafter enter the same, similar or a
competitive (i) business, (ii) course of activities or (iii) location, as
applicable.
(d) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company or
MarineMax, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by MarineMax or the Company of such
covenants. It is specifically agreed that the period of two (2) years following
termination of employment stated at the beginning of this paragraph 3, during
which the agreements and covenants of Executive made in this paragraph 3 shall
be effective, shall be computed by excluding from such computation any time
during which Executive is in violation of any provision of this paragraph 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION. The term of this Agreement
shall begin on the date hereof and continue for five (5) years, and, unless
terminated sooner as herein provided, shall continue thereafter on a
year-to-year basis (the "Term") on the same terms and
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conditions contained herein in effect as of the time of renewal. This Agreement
and Executive's employment may be terminated in any one of the followings ways:
(a) DEATH. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(b) DISABILITY. If, as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from his full-time
duties hereunder for six (6) consecutive months, then thirty (30) days after
receiving written notice (which notice may occur before or after the end of such
six (6) month period, but which shall not be effective earlier than the last day
of such six (6) month period), the Company may terminate Executive's employment
hereunder provided Executive is unable to resume his full-time duties at the
conclusion of such notice period. Also, Executive may terminate his employment
hereunder if his health should become impaired to an extent that makes the
continued performance of his duties hereunder hazardous to his physical or
mental health or his life, provided that Executive shall have furnished the
Company with a written statement from a qualified doctor to such effect and
provided, further, that, at the Company's request made within thirty (30) days
of the date of such written statement, Executive shall submit to an examination
by a doctor selected by the Company who is reasonably acceptable to Executive or
Executive's doctor and such doctor shall have concurred in the conclusion of
Executive's doctor. In the event this Agreement is terminated as a result of
Executive's disability, Executive shall receive from the Company, in a lump-sum
payment due within ten (10) days of the effective date of termination, the base
salary at the rate then in effect for the lesser of the time period then
remaining under the Term of this Agreement or for one (1) year.
(c) GOOD CAUSE. The Company may terminate this Agreement ten (10)
days after written notice to Executive for "Good Cause," which shall mean any
one or more of the following: (1) Executive's willful, material and irreparable
breach of this Agreement; (2) Executive's gross negligence in the performance or
intentional nonperformance (continuing for ten (10) days after receipt of
written notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's willful dishonesty, fraud or
misconduct with respect to the business or affairs of the Company or MarineMax
which materially and adversely affects the operations or reputation of the
Company or MarineMax; (4) Executive's conviction of a felony crime; or (5)
confirmed positive illegal drug test result. In the event of a termination for
Good Cause, as enumerated above, Executive shall have no right to any severance
compensation.
(d) WITHOUT GOOD CAUSE; GOOD REASON. At any time after the
commencement of employment, Executive may, without cause, and without Good
Reason terminate this Agreement and Executive's employment, effective thirty
(30) days after written notice is provided to the Company. Executive may only be
terminated without Good Cause by the Company during the Term hereof if such
termination is approved by a majority of the members of the Board of Directors
of MarineMax, excluding Executive if Executive is a member of such Board of
Directors. Should Executive be terminated by the Company without Good Cause or
should Executive terminate with Good Reason during the Term, Executive shall
receive from the Company, on such dates as would otherwise be paid by the
Company, the base salary at the rate then in effect for whatever time period is
remaining under the Term of this Agreement or for one (1) year, whichever amount
is greater. Further, if Executive is terminated without Good
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Cause or terminates his employment hereunder with Good Reason, (a) the Company
shall make the insurance premium payments contemplated by COBRA for a period of
eighteen (18) months after such termination, (b) the Executive shall be entitled
to receive a prorated portion of any annual bonus and other incentive
compensation to which the Executive would have been entitled for the year during
which the termination occurred had the Executive not been terminated, (c) all
options to purchase MarineMax Common Stock shall vest thereupon, and (d) the
Executive shall be entitled to receive all other unpaid benefits due and owing
through Executive's last day of employment. Further, any termination without
Good Cause by the Company shall operate to shorten the period set forth in
paragraph 3(a) hereof and during which the terms of paragraph 3 hereof apply to
one (1) year from the date of termination of employment. If Executive resigns or
otherwise terminates his employment without Good Reason, rather than the Company
terminating his employment pursuant to this paragraph 5(d), Executive shall
receive no severance compensation.
Executive shall have "Good Reason" to terminate this Agreement and his
employment hereunder upon the occurrence of any of the following events: (a)
Executive is demoted by means of a reduction in authority, responsibilities or
duties to a position of less stature or importance within the Company than the
position described in paragraph 1 hereof; or (b) Executive's annual base salary
as determined pursuant to paragraph 2 hereof is reduced to a level that is less
than eighty percent (80%) of the base salary paid to Executive during any prior
contract year under this Agreement, unless Executive has agreed in writing to
that demotion or reduction.
(e) CHANGE IN CONTROL OF MARINEMAX. In the event of a "Change in
Control" (as defined below) of MarineMax during the Term, Executive may
terminate this Agreement as provided in paragraph 11 below.
Upon termination of this Agreement for any reason provided above,
Executive shall be entitled to receive all compensation earned and all benefits
and reimbursements due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Executive only to the extent and in the manner expressly provided above or in
paragraph 11 hereof. All other rights and obligations of the Company and
Executive under this Agreement shall cease as of the effective date of
termination, except that the Company's obligations under paragraph 8 hereof and
Executive's obligations under paragraphs 3, 5, 6, 7 and 9 hereof shall survive
such termination in accordance with their terms.
If termination of Executive's employment arises out of the Company's
failure to pay Executive on a timely basis the amounts to which he is entitled
under this Agreement or as a result of any other breach of this Agreement by the
Company, as determined by a court of competent jurisdiction or pursuant to the
provisions of paragraph 15 below, the Company shall pay all amounts and damages
to which Executive may be entitled as a result of such breach, including
interest thereon and all reasonable legal fees and expenses and other costs
incurred by Executive to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 hereof shall apply in the event this Agreement is
terminated as a result of a breach by the Company.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by
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Executive by or on behalf of the Company, MarineMax or their representatives,
vendors or customers which pertain to the business of the Company or MarineMax
shall be and remain the property of the Company or MarineMax, as the case may
be, and be subject at all times to their discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company or MarineMax which is collected by Executive shall be delivered promptly
to the Company without request by it upon termination of Executive's employment.
6. INVENTIONS. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one (1) year thereafter, and which are directly related to the business
or activities of the Company and which Executive conceives as a result of his
employment by the Company. Executive hereby assigns and agrees to assign all his
interests therein to the Company or its nominee. Whenever requested to do so by
the Company, Executive shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
7. TRADE SECRETS. Executive agrees that he will not, during or after the
period of employment under this Agreement, disclose the specific terms of the
Company's or MarineMax's relationships or agreements with their respective
significant vendors or customers, or any other significant and material trade
secret of the Company or MarineMax, whether in existence or proposed, to any
person, firm, partnership, corporation or business for any reason or purpose
whatsoever.
8. INDEMNIFICATION. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
or MarineMax against Executive), by reason of the fact that he is or was
performing services under this Agreement, then the Company shall indemnify
Executive against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Executive in
connection therewith to the maximum extent permitted by applicable law. The
advancement of expenses shall be mandatory. In the event that both Executive and
the Company are made a party to the same third-party action, complaint, suit or
proceeding, the Company agrees to engage competent legal representation, and
Executive agrees to use the same representation, provided that if counsel
selected by the Company shall have a conflict of interest that prevents such
counsel from representing Executive, Executive may engage separate counsel and
the Company shall pay all attorneys' fees of such separate counsel. Further,
while Executive is expected at all times to use his best efforts to faithfully
discharge his duties under this Agreement, Executive cannot be held liable to
the Company or MarineMax for errors or omissions made in good faith where
Executive has not exhibited gross, willful and wanton negligence and misconduct
or performed criminal and fraudulent acts which materially damage the business
of the Company or MarineMax.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any
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agreement with a former employer, client or any other person or entity. Further,
Executive agrees to indemnify the Company for any claim, including, but not
limited to, attorneys' fees and expenses of investigation, by any such third
party that such third party may now have or may hereafter come to have against
the Company based upon or arising out of any non-competition agreement,
invention or secrecy agreement between Executive and such third party which was
in existence as of the date of this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject to
the preceding two (2) sentences and the express provisions of paragraph 12
below, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
11. CHANGE IN CONTROL.
(a) Unless Executive elects to terminate this Agreement pursuant to
subparagraph (c) below, Executive understands and acknowledges that MarineMax
may be merged or consolidated with or into another entity and that such entity
shall automatically succeed to the rights and obligations of MarineMax hereunder
or that MarineMax may undergo another type of Change in Control. In the event
such a merger or consolidation or other Change in Control is initiated prior to
the end of the Term, then the provisions of this paragraph 11 shall be
applicable.
(b) In the event of a pending Change in Control wherein MarineMax
and/or the Company and Executive have not received written notice at least five
(5) business days prior to the anticipated closing date of the transaction
giving rise to the Change in Control from the successor to all or a substantial
portion of MarineMax's and/or the Company's business and/or assets that such
successor is willing as of the closing to assume and agree to perform
MarineMax's and/or the Company's obligations under this Agreement in the same
manner and to the same extent that MarineMax and/or the Company is hereby
required to perform, then such Change in Control shall be deemed to be a
termination of this Agreement by MarineMax and/or the Company without Good Cause
during the Term and the applicable portions of paragraph 4(d) hereof will apply;
however, under such circumstances, the amount of the lump-sum severance payment
due to Executive shall be triple the amount calculated under the terms of
paragraph 4(d) hereof and the non-competition provisions of paragraph 3 hereof
shall not apply whatsoever.
(c) In any Change in Control situation, Executive may, at his sole
discretion, elect to terminate this Agreement by providing written notice to the
Company and MarineMax at least five (5) business days prior to the anticipated
closing of the transaction giving rise to the Change in Control. In such case,
the applicable provisions of paragraph 4(d) hereof will apply as though the
Company had terminated the Agreement without Good Cause during the Term;
however, under such circumstances, the amount of the lump-sum severance payment
due to Executive shall be double the amount calculated under the terms of
paragraph 4(d) hereof and the non-competition provisions of paragraph 3 hereof
shall all apply for a period of one (1) year from the effective date of
termination.
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(d) For purposes of applying paragraph 4 hereof under the
circumstances described in (b) and (c) above, the effective date of termination
will be the closing date of the transaction giving rise to the Change in Control
and all compensation, reimbursements and lump-sum payments due Executive must be
paid in full by the Company at or prior to such closing. Further, Executive will
be given sufficient time and opportunity to elect whether to exercise all or any
of his options to purchase MarineMax Common Stock, such that he may convert the
options to shares of MarineMax Common Stock at or prior to the closing of the
transaction giving rise to the Change in Control, if he so desires.
(e) A "Change in Control" 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
amended, as in effect on the date of this Agreement, or if Item 6(e) is no
longer in effect, any regulations issued by the United States Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
which serve similar purposes; provided further that, without limitation, a
Change in Control shall be deemed to have occurred if and when:
(i) the following individuals no longer constitute a majority
of the members of the Board of Directors of MarineMax: (A) the individuals who,
as of the closing date of MarineMax's initial public offering, constitute the
Board of Directors of MarineMax (the "Original Directors"); (B) the individuals
who thereafter are elected to the Board of Directors of MarineMax and whose
election, or nomination for election, to the Board of Directors of MarineMax was
approved by a vote of at least two-thirds (2/3) of the Original Directors then
still in office (such directors becoming "Additional Original Directors"
immediately following their election); and (C) the individuals who are elected
to the Board of Directors of MarineMax and whose election, or nomination for
election, to the Board of Directors of MarineMax was approved by a vote of at
least two-thirds (2/3) of the Original Directors and Additional Original
Directors then still in office (such directors also becoming "Additional
Original Directors" immediately following their election);
(ii) a tender offer or exchange offer is made whereby the effect
of such offer is to take over and control MarineMax, and such offer is
consummated for the equity securities of MarineMax representing twenty percent
(20%) or more of the combined voting power of MarineMax's then outstanding
voting securities;
(iii) the stockholders of MarineMax shall approve a merger,
consolidation, recapitalization, or reorganization of MarineMax, a reverse stock
split of outstanding voting securities, or consummation of any such transaction
if stockholder approval is not obtained, other than any such transaction which
would result in at least seventy-five percent (75%) of the total voting power
represented by the voting securities of the surviving entity outstanding
immediately after such transaction being beneficially owned by at least
seventy-five percent (75%) of the holders of outstanding voting securities of
MarineMax immediately prior to the transaction, with the voting power of each
such continuing holder relative to other such continuing holders not
substantially altered in the transaction; or
(iv) the stockholders of MarineMax shall approve a plan of
complete liquidation of MarineMax or an agreement for the sale or disposition by
MarineMax of all or a
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substantial portion of MarineMax's assets to another person or entity which is
not a wholly-owned subsidiary of MarineMax (i.e., fifty percent (50%) or more of
the total assets of MarineMax).
(f) Sales of MarineMax's Common Stock beneficially owned or
controlled by MarineMax shall not be considered in determining whether a Change
in Control has occurred. Notwithstanding the foregoing, none of MarineMax's
initial public offering or the concurrent mergers involving MarineMax and its
various wholly-owned subsidiaries and affiliates shall be deemed to be a Change
in Control.
(g) Executive shall be notified in writing by MarineMax at any time
that MarineMax or any member of its Board anticipates that a Change in Control
may take place.
(h) In the event that a Change in Control occurs and the aggregate
amount of any payments made to Executive hereunder, or pursuant to any plan,
program or policy of the Company in connection with, on account of, or as a
result of, such Change in Control constitutes "excess parachute payments" as
defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), subject to the excise tax imposed by Section 4999 of the Code, or any
successor sections thereof, Executive shall receive from the Company, in
addition to any other amounts payable under this Agreement, a lump sum payment
equal to the amount of (i) such excise tax, and (ii) the federal and state
income taxes payable by the Executive with respect to any payments made to
Executive under this subparagraph (h). Such amount will be due and payable by
the Company or its successor within ten (10) days after Executive delivers a
written request for reimbursement accompanied by a copy of his tax return(s)
showing the excise tax actually incurred by Executive.
12. COMPLETE AGREEMENT. This Agreement is not a promise of future
employment. Executive has no oral representations, understandings or agreements
with the Company or any of its officers, directors or representatives covering
the same subject matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement between the
Company and Executive and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of the Company
and Executive, and no term of this Agreement may be waived except by writing
signed by the party waiving the benefit of such term. This Agreement hereby
supersedes any other employment agreements or understandings, written or oral,
between the Company and/or MarineMax and Executive.
13. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company:
COCHRANS MARINE, INC.
c/o MarineMax, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
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Attention: President
To Executive:
Xxxxx X. Xxxxxxx
X.X. Xxx 000
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Xxxxxx, XX 00000
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Notice shall be deemed given and effective on the earlier of three (3) days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually
received. Either party may change the address for notice by notifying the other
party of such change in accordance with this paragraph 13.
14. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of the
Agreement or of any part hereof.
15. MEDIATION; ARBITRATION. All disputes arising out of this Agreement
shall be resolved as set forth in this paragraph 15. If any party hereto desires
to make any claim arising out of this Agreement ("Claimant"), then such party
shall first deliver to the other party ("Respondent") written notice ("Claim
Notice") of Claimant's intent to make such claim explaining Claimant's reasons
for such claim in sufficient detail for Respondent to respond. Respondent shall
have ten (10) business days from the date the Claim Notice was given to
Respondent to object in writing to the claim ("Notice of Objection"), or
otherwise cure any breach hereof alleged in the Claim Notice. Any Notice of
Objection shall specify with particularity the reasons for such objection.
Following receipt of the Notice of Objection, if any, Claimant and Respondent
shall immediately seek to resolve by good faith negotiations the dispute alleged
in the Claim Notice, and may at the request of either party, utilize the
services of an independent mediator. If Claimant and Respondent are unable to
resolve the dispute in writing within ten (10) business days from the date
negotiations began, then without the necessity of further agreement of Claimant
or Respondent, the dispute set forth in the Claim Notice shall be submitted to
binding arbitration (except for claims arising out of paragraphs 3 or 7 hereof),
initiated by either Claimant or Respondent pursuant to this paragraph. Such
arbitration shall be conducted before a panel of three (3) arbitrators in Tampa,
Florida, in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association ("AAA") then in effect provided
that the parties may agree to use arbitrators other than those provided by the
AAA. The arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured party.
The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement, and interest thereon in the event the arbitrators determine that
Executive was terminated without disability or without Good Cause, as defined in
paragraphs 4(b) and 4(c) hereof, respectively, or that the Company has otherwise
materially breached this Agreement. A decision by a majority of the arbitration
panel shall be final and
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binding. Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any mediation or arbitration proceeding
shall be borne by the Company.
16. JOINDER OF MARINEMAX. MarineMax joins in this Agreement for the
purpose of guaranteeing, and does hereby guarantee, the performance by the
Company of its obligations to Executive hereunder.
17. NO PARTICIPATION IN SEVERANCE PLANS. Executive acknowledges and
agrees that the compensation and other benefits set forth in this Agreement are
and shall be in lieu of any compensation or other benefits that may otherwise be
payable to or on behalf of Executive pursuant to the terms of any severance pay
arrangement of the Company, MarineMax or any affiliate thereof, or any other
similar arrangement of the Company, MarineMax or any affiliates thereof
providing for benefits upon involuntary termination of employment.
18. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Delaware, notwithstanding the conflict of
laws provisions of such state.
19. COUNTERPARTS; FACSIMILE. This Agreement may be executed by facsimile
and in two (2) or more counterparts, each of which shall be deemed an original
and all of which together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
COCHRANS MARINE, INC.
By: /s/ Xxxxx X Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Its: Chief Executive Officer
-------------------------------------
MARINEMAX:
MARINEMAX, INC.
By: /s/ Xxxxxxx XxXxxx
--------------------------------------
Name: Xxxxxxx XxXxxx
------------------------------------
Its: Vice President
-------------------------------------
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
XXXXX X. XXXXXXX
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