MUTUAL RELEASE AND NON-DISPARAGEMENT AGREEMENT
I,
Xxxxxx
X. Xxxxxxx (“Executive”),
in
consideration of and subject to the performance by Lazy Days R.V. Center, Inc.,
a Florida corporation (together with its subsidiaries, the “Company”),
of
its obligations under the Retirement Agreement dated as of the date hereof
by
and among Executive, Lazy Days’ R.V. Center Inc., LD Holdings Inc., and RV
Acquisition Inc. (the “Retirement
Agreement”),
do
hereby release and forever discharge as of the date hereof the Company and
all
present and former directors, officers, executives, employees, attorneys,
agents, representatives, executives, successors and assigns of the Company
and
its direct or indirect owners, parents, affiliates and subsidiaries (and their
directors, officers, executives, employees, attorneys, agents, representatives
and executives) (collectively, the “Released
Parties”)
to the
extent provided below.
| (1) |
Except
as provided in paragraph 2 below, I knowingly and voluntarily release
and
forever discharge the Released Parties from any and all claims,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive
or
exemplary damages, other damages, claims for costs and attorneys’ fees, or
liabilities of any nature whatsoever in law and in equity, both past
and
present (through the date hereof) and whether known or unknown, suspected,
or claimed against any of the Released Parties which I, or any of
my
heirs, executors, administrators or assigns, may have, which arise
out of
or are connected with my engagement by, employment with or separation
from
the Company (including, but not limited to, any allegation, claim
or
violation, arising under: Title VII of the Civil Rights Act of 1964,
as
amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act of 1967, as amended (including the Older Workers Benefit
Protection Act); the Equal Pay Act of 1963, as amended; the Americans
with
Disabilities Act of 1990; the Family and Medical Leave Act of 1993;
the
Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining
and
Notification Act; the Employee Retirement Income Security Act of
1974; any
applicable Executive Order Programs; the Fair Labor Standards Act;
or
their state or local counterparts; or under any other federal, state
or
local civil or human rights law, or under any other local, state,
or
federal law, regulation or ordinance; or under any public policy,
contract
or tort, or under common law; or arising under any policies, practices
or
procedures of the Company; or any claim for wrongful discharge, breach
of
contract, infliction of emotional distress, defamation; or any claim
for
costs, fees, or other expenses, including attorneys’ fees incurred in
these matters) (all of the foregoing collectively referred to herein
as
the “Claims”).
|
| (2) |
I
understand and agree that this Mutual Release And Non-Disparagement
Agreement (“Release”)
does not waive or release any rights or claims which arise after
the date
I execute this Release; claims for enforcement of Section C and E
of the
Retirement Agreement; claims for benefits under any employee benefit
plan
maintained by the Company; claims under Section 5(iv) of that certain
Management Agreement dated as of May 14, 2004 among Bruckmann, Xxxxxx,
Xxxxxxxx & Co., L.L.C., RV Acquisition, Inc., LD Holdings, Inc. and
the Company; claims for unemployment or worker’s compensation as provided
by law; or actions or omissions by the Company prior to the date
hereof
that represent willful misconduct or fraud. To the best of my knowledge,
I
am not aware of any claims that I have under any employee benefit
plan
maintained by the Company other than in connection with my participation
in the Company’s 401(K) plan and any claims I may have under the Company’s
group health and disability insurance
plans.
|
| (3) |
I
acknowledge and intend that this Release shall be effective as a
bar and
shall serve as a complete defense to each and every one of the Claims
and
that it shall be given full force and effect according to each and
all of
its express terms and provisions, including those relating to unknown
and
unsuspected Claims (notwithstanding any state statute that expressly
limits the effectiveness of a release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or
implied.
|
| (4) |
I
represent that I have not made any assignment or transfer of any
Claim. I
agree that neither this Release, nor the furnishing of the consideration
for this Release, shall be deemed or construed at any time to be
an
admission by the Company or any Released Party of any improper or
unlawful
conduct. I agree that this Release is confidential and agree not
to
disclose any information regarding the terms of this Release, except
to my
immediate family and any tax, legal or other counsel with whom I
may
consult regarding the meaning or effect hereof or as required by
law, and
I will instruct each of the foregoing not to disclose the same to
anyone.
|
| (5) |
Each
provision of this Release shall be interpreted in such manner as
to be
effective and valid under applicable law and any provision of this
Release
held to be invalid, illegal or unenforceable in any respect shall
be
severable. This Release cannot be amended except in a writing duly
executed by the Company and me.
|
| (6) |
The
Company (meaning, solely for this purpose, the Company’s directors and
executive officers) will not, and will use its commercially reasonable
efforts to cause the other Released Parties to not, disparage Executive
or
Executive’s performance or otherwise take any action which could
reasonably be expected to adversely affect Executive’s personal or
professional reputation. Similarly, Executive will not disparage
the
Released Parties or otherwise take any action which could reasonably
be
expected to adversely affect the personal or professional reputation
of
the Released Parties.
|
| (7) |
The
Company does hereby release and forever discharge as of the date
hereof
the Executive and his personal representatives and heirs, with respect
to
any action or omission by the Executive made in his capacity as employee,
officer and director (and not in any other capacity, including, without
limitation in the capacity as a “Seller” under and as defined in the Stock
Purchase Agreement dated as of April 27, 2004 by and among the Company,
RV
Acquisition Inc. and certain other parties thereto, in the capacity
as
stockholder of RV Acquisition, Inc., in the capacity as beneficial
owner
of I-4 Land Holding Limited Company, and in the capacity as consignor
under certain consignment agreements with the Company) which action
or
omission took place prior to the date hereof; provided
that this release shall not be applicable to (i) such actions or
omissions that represent willful misconduct or fraud other than any
action
or omission that was specifically approved by the board of directors,
(ii) any rights or claims which arise after the date hereof,
(iii) claims for enforcement of the Employment Agreement, and
(iv) claims for enforcement of the Non-compete and Covenant
Agreement.
|
| (8) |
I
acknowledge that I have entered into this Release freely and without
coercion, that I have been advised by the Company to consult with
counsel
of my choice, that I have had adequate opportunity to so consult,
and that
I have been given all time periods required by law to consider this
Agreement, including but not limited to the 21-day period required
by the
Age Discrimination in Employment Act of 1967, as amended. I further
acknowledge that within the 7-day period following my execution of
this
Agreement (the “Revocation
Period”)
I shall have the unilateral right to revoke this Agreement. In order
to be
effective, notice of Executive’s revocation of this Agreement must be
received by the Company on or before the last day of the Revocation
Period.
|
| (9) |
This
Release shall be governed by the internal laws, and not the laws
of
conflicts, of the State of Florida.
|
I
UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL
THE REVOCATION PERIOD HAS EXPIRED.
LAZY
DAYS’ R.V. CENTER, INC.
By: /s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Chief Executive Officer
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X. Xxxxxxx
