AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") dated as
of October ___, 1994, between CRUISE AMERICA, INC., a Florida corporation (the
"Company"), and [NAME OF EXECUTIVE] (the "Executive").
PRELIMINARY STATEMENTS
The Executive and the Company are parties to that certain Employment
Agreement dated May 1, 1989 (the "Employment Agreement").
The Executive and the Company desire to amend and restate the
Employment Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of the premises, the parties agree
that the Employment Agreement shall be amended and restated in its entirety as
follows:
a. Employment. The Company hereby agrees to continue to employ the
Executive and the Executive hereby agrees to continue to serve the
Company, on the terms and conditions set forth in this Agreement.
b. Term of Agreement. Subject to the terms and conditions hereof, the
term of the Executive's employment pursuant to this Agreement (the
"Term") shall commence on the date of hereof and shall continue in
effect through April 30, 1997; provided, however, that on April 30,
1995 and on the 30th day of each April thereafter, the Term
automatically shall be extended for an additional one-year period
unless, at least ninety (90) days prior to such date, either party
shall have given written notice to the other stating that the Term
shall not be so extended; provided, further, that notwithstanding the
foregoing, if a Change in Control of the Company (as defined in
Section 11 hereof) shall have occurred prior to the end of the Term as
it may be so extended, the Term shall continue in effect for a period
of three years beyond the month in which such Change of Control of the
Company occurred.
c. Position and Duties. The Executive shall serve as [TITLE OF EXECUTIVE]
of the Company and shall have supervision and control over, and
responsibility for, [SPECIFY DUTIES], and shall have such other powers
and duties as may from time to time be delegated to him by the Board,
provided that such duties are consistent with his present duties and
with the Executive's position. The Executive shall report to [the
Board/the Chief Executive Officer]. The Executive shall devote
substantially all of his working time and efforts during normal
business hours to the business and affairs of the Company in
substantially the same manner (both as to working time and effort) as
the Executive has devoted to the Company in the past.
d. Place of Performance. In connection with his employment by the
Company, the Executive shall be based at the Company's principal
executive offices located in Mesa, Arizona and shall not be required
to be absent therefrom on travel status or otherwise more than 45 days
in any calendar year.
e. Compensation and Related Matters.
i. Base Salary. The Executive shall receive a base salary, payable
in substantially equal bi-weekly installments, at the annual rate
of at least $[000,000] during each calendar year during the Term,
or such greater amount as shall be determined by the Compensation
Committee ("Compensation Committee") of the Board of Directors of
the Company (the "Board"), or the entire Board, in its sole
discretion (the "Base Salary"). Any increase in the Base Salary
or other compensation granted by the Compensation Committee or
the Board shall in no way limit or reduce any other obligation of
the Company under this Agreement and, once established at an
increased specified rate, the Base Salary shall not thereafter be
reduced.
ii. Bonuses. In addition to the Base Salary, the Executive shall be
entitled to receive from time to time such annual cash bonus
payments as the Compensation Committee may determine in its
discretion.
iii. Expenses. During the Term, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred
by him in accordance with the policies and procedures of the
Company and its subsidiaries for the reimbursement of business
expenses incurred by its senior executive officers, provided that
the Executive properly accounts therefor in accordance with
Company policy.
iv. Other Benefits. The Company shall not make any changes in any
employee benefit plans or arrangements in effect on the date of
this Agreement in which the Executive participates, (including
without limitation, to the extent in effect, each pension and
retirement plan, supplemental pension and retirement plan,
savings and profit sharing plan, life insurance policies,
officers and directors policies, stock option plan, life
insurance plan, medical and health insurance plan, disability
plan, dental plan, health-and-accident plan or, similar plans or
arrangements) which would adversely affect the Executive's rights
or benefits thereunder, unless such change occurs pursuant to an
amendment applicable to all senior executives and/or employees of
the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Executive as
compared with any other senior executives and/or employees of the
Company. The Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement
made available by the Company in the future to its executives and
key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such
plan or arrangement. Nothing paid to the Executive under any plan
or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the Base Salary or any
other obligation payable to the Executive pursuant to this
Agreement.
v. Vacation. The Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company
from time to time for its senior executive officers, but not less
than one month in any calendar year (prorated in any calendar
year during which the Executive is employed under this Agreement
for less than the entire such year in accordance with the number
of days in such calendar year during which he is so employed).
The Executive shall also be entitled to all paid holidays given
by the Company to its senior executive officers.
vi. Perquisites and Fringe Benefits. The Executive shall be entitled
to continue to receive all perquisites and fringe benefits
provided or available to senior executive officers of the Company
in accordance with present practice and as may be changed from
time to time with respect to all senior executive officers of the
Company.
f. Offices. The Executive agrees to serve without additional compensation
as a director of the Company and any of its subsidiaries and as an
officer of any of the Company's present or future subsidiaries;
provided, that the Executive shall be indemnified for serving in any
and all such capacities on a basis no less favorable than may be from
time to time provided to other senior executives of the Company under
its Bylaws or any agreements between any other senior executives and
the Company, and the Company shall use its best efforts consistent
with sound business practices obtain and maintain appropriate coverage
under officers and directors policies.
g. Noncompetition; Unauthorized Disclosure; Injunctive Relief; Other
Activities of Executive.
i. No Material Competition. The Executive agrees that at no time
during the Term or, for a period of one year immediately
following any termination of this Agreement, other than a
termination by the Executive for Good Reason (as hereinafter
defined) or a termination by the Company without Cause (as
hereinafter defined), will he, for himself or on behalf of any
other person, persons, firm, partnership, corporation or company,
engage, directly or indirectly, in any business if, within 30
days of the Executive advising the Company in writing of his
proposed business activity, the Board determines in good faith
that such proposed business activity is directly competitive with
a material part of the business of the Company and its
subsidiaries (in the aggregate) and such competitive business
activity is likely to materially affect in an adverse manner the
consolidated sales, profits or financial condition of the
Company.
ii. Unauthorized Disclosure. During the period of his employment
under this Agreement, the Executive shall not, without the
written consent of the Board or a person authorized thereby,
disclose to any person, other than an employee of the Company (or
its subsidiaries) or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by
the Executive of his duties as an executive of the Company, any
material confidential information obtained by him while in the
employ of the Company with respect to any of the Company's
customers, suppliers, creditors, lenders, investment bankers,
methods of distribution or methods of marketing, the disclosure
of which he knows will be materially damaging to the Company;
provided, however, that confidential information shall not
include any information known generally to the public (other than
as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to
that conducted by the Company. For the period ending one year
following any termination of this Agreement, other than a
termination by the Executive for Good Reason or a termination by
the Company without Cause, the Executive shall not disclose any
confidential information of the type described above.
iii. Injunction. It is recognized and hereby acknowledged by the
Company and the Executive that a breach by the Executive of any
of the agreements contained in this Section 7 may cause
irreparable harm or damage to the Company, or its subsidiaries,
the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive and the Company agree that
the Company and any of its subsidiaries shall be entitled to an
injunction issued by any court of competent jurisdiction
enjoining and restraining any and all violations of such
agreements by the Executive or his associates, affiliates,
partners or agents, and that such right to an injunction shall be
cumulative and in addition to whatever other remedies the Company
may possess.
iv. Certain Provisions. The limitations of Section 7(a) shall
terminate if upon termination of this Agreement for any reason
the Company does not fulfill its obligations as required by
Section 9 hereof; however, such termination shall not affect the
rights of the Executive to receive all payments, undiminished in
any way, provided by such Section 9. The provisions of Section 7
shall apply during the time the Executive is receiving any
payments from the Company as a result of a termination resulting
from Disability.
h. Termination. The Executive's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
i. Death. The Executive's employment under this Agreement shall
terminate automatically upon his death.
ii. Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent
from the performance of his duties under this Agreement for six
consecutive months during any calendar year, and within 30 days
after written notice of termination is given (which notice may
only be given after the end of such six-month period), the
Executive shall not have returned to the performance of his
duties under this Agreement, the Company may terminate the
Executive's employment under this Agreement for "Disability."
iii. Cause. The Company may terminate the Executive's employment under
this Agreement for Cause. For purposes of this Agreement, the
term "Cause" shall mean (i) the willful and continued failure by
the Executive to substantially perform his duties under this
Agreement (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or from
the termination of this Agreement by the Executive for Good
Reason), after a demand for substantial performance is delivered
to the Executive by the Company specifically identifying the
manner in which the Company believes the Executive has not
substantially performed his duties, and the Executive shall have
failed to resume substantial performance of such duties within
fourteen (14) days of receiving such demand, (ii) the willful
engaging by the Executive in criminal conduct (including
embezzlement and criminal fraud) which is demonstrably and
materially injurious to the Company, monetarily or otherwise, or
(iii) the conviction of the Executive of a felony or the
conviction of the Executive of a misdemeanor which impairs the
Executive's ability substantially to perform his duties with the
Company. For purposes of this paragraph, no act, or failure to
act, on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding anything herein to the
contrary, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to the Executive a copy of a resolution, duly adopted
by the affirmative vote of not less than a majority of the
members of the Board then in office (other than the Executive) at
a meeting of the Board called and held for such purpose (after
reasonable notice to the Executive and an opportunity for him,
together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was
guilty of conduct set forth in clause (i), (ii) or (iii), above,
and specifying the particulars thereon in detail.
iv. Termination by the Executive. The Executive may terminate his
employment under this Agreement (i) for Good Reason, or (ii) if
his health should become impaired to any extent that makes the
continued performance of his duties under this Agreement
hazardous to his physical or mental health or his life, provided
that the 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 and expense the
Executive shall submit to an examination by a doctor selected by
the Company and such doctor shall have concurred in the
conclusion of the Executive's doctor.
For purposes of this Agreement the term "Good Reason" shall mean, without
the Executive's express written consent, the occurrence of any one or more of
the following: (i) the assignment to the Executive of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Executive in any respect not contemplated by, Section 3 hereof, or any other
action by the Company which results in a diminution in the nature or status
Executive's position, authority, duties or responsibilities; (ii) a reduction by
the Company in the Executive's Base Salary as the same shall be increased from
time to time; (iii) the Company's requiring the Executive to be based at a
location in excess of forty-five miles from the location where he is currently
based; (iv) a failure by the Company to comply with its material obligations and
agreements contained herein, including but not limited to any failure by the
Company to comply with any of the provisions of Section 5 hereof; (v) a failure
of the Company to obtain a satisfactory agreement from any successor to the
Company to assume and agree to perform this Agreement, as contemplated in
Section 10(c) hereof; or (vi) any purported termination by the Company of the
Executive's employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of subsection 8(e) hereof, and for purposes of this
Agreement, no such termination shall be effective.
The Executive's right to terminate his employment for Good Reason shall not
be affected by his incapacity due to physical or mental illness, nor shall the
Executive's continued employment constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. With
respect to the matters set forth in clauses (i), (ii) and (iii), above, the
Executive must give the Company thirty (30) days prior written notice of his
intent to terminate this Agreement as a result of any breach or alleged breach
of the applicable provision and the Company shall have the right to cure any
such breach or alleged breach within such 30-day period; provided, that no such
prior written notice or opportunity to cure shall be required following a Change
in Control of the Company.
v. Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than
termination pursuant to Section 8(a), above) shall be
communicated by written Notice of Termination to the other party
hereto given in accordance with Section 13. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice
which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated. The failure by the Executive to set forth in any
Notice of Termination any fact or circumstance which contributes
to a showing of Good Reason shall not waive any right of the
Executive hereunder or preclude the Executive from asserting such
fact or circumstance in enforcing his rights hereunder.
vi. Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of
his death, (ii) if the Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the
performance of his duties during such thirty (30) day period),
(iii) if the Executive's employment is terminated by the Company
for Cause, the date specified in the Notice of Termination after
the expiration of any cure periods, and (iv) if the Executive's
employment is terminated for any other reason, the date on which
a Notice of Termination is given after the expiration of any cure
periods; provided, that if within thirty (30) days after any
Notice of Termination one party notifies the other party that a
dispute exists concerning the termination, the Date of
Termination shall be the date finally determined to be the Date
of Termination, either by mutual written agreement of the parties
or by a binding and final arbitration award or an adjudication by
a court of competent jurisdiction.
i. Compensation Upon Termination or During Disability.
i. Death. If the Executive's employment shall be terminated by
reason of his death, the Company shall pay to such person as the
Executive shall have designated in a notice filed with the
Company, or, if no such person shall have been designated, to his
estate as a lump sum death benefit, his full Base Salary to the
date of his death in addition to any payments the Executive's
spouse, beneficiaries or estate may be entitled to receive
pursuant to any pension or employee benefit plan, life insurance
policy or other plan, program or policy then maintained or
provided by the Company, or any other agreement between the
Executive and the Company, and such payments shall, assuming the
Company is in compliance with the provisions of this Agreement,
fully discharge the Company's obligations hereunder.
ii. Disability. During any period that the Executive fails to perform
his duties hereunder as a result of incapacity due to physical or
mental illness, the Executive shall continue to receive his full
Base Salary until the Executive's employment is terminated
pursuant to Section 8(b) hereof, or until the Executive
terminates his employment pursuant to Section 8(d)(ii) hereof,
whichever first occurs. After termination, the Executive shall be
paid in equal monthly installments for one year 50% of his Base
Salary at the rate in effect at the time Notice of Termination is
given, plus any disability payments otherwise payable by or
pursuant to plans provided by the Company.
iii. Cause; Other than for Good Reason. If the Executive's employment
shall be terminated by the Company for Cause, or by the Executive
for other than Good Reason, the Company shall pay the Executive
his full Base Salary and accrued vacation pay through the Date of
Termination at the rate in effect at the time Notice of
Termination is given (or on the Date of Termination if no Notice
of Termination is required hereunder) plus all other amounts to
which the Executive is entitled under any plan, program, policy
or practice of the Company or otherwise at the time such payments
are due and such payments shall, assuming the Company is in
compliance with the provisions of this Agreement, fully discharge
the Company's obligations hereunder.
iv. Good Reason; Other than Cause or Disability.
(i) Prior to Change in Control. If, prior to the occurrence of a
Change in Control of the Company, the Company shall terminate the Executive's
employment other than for Cause or Disability (it being understood that a
purported termination for Cause or Disability which is disputed and finally
determined not to have been proper shall be a termination by the Company in
breach of this Agreement), or the Executive shall terminate his employment for
Good Reason, then the Company shall pay the Executive, not later than the fifth
day following the Date of Termination, the aggregate of the following amounts:
(A) his full Base Salary and accrued vacation pay through the Date of
Termination at the rate in effect at the time Notice of Termination is given, or
the Date of Termination where no Notice of Termination is required hereunder,
and any other amounts to which the Executive is entitled under any plan, policy,
practice or program of the Company or otherwise at the time such payments are
due;
(B) the product of (x) the Executive's most recent annual bonus,
whether payable pursuant to a plan of the Company or otherwise (the "Recent
Bonus"), times (y) a fraction, the numerator of which is the number of days in
the current fiscal year through the Date of Termination and the denominator of
which is 365; and
(C) in lieu of any further salary or bonus payments to the Executive
for periods subsequent to the Date of Termination, and as a severance benefit to
the Executive, a lump sum amount equal to the product of (x) the sum of (1) the
Executive's annual Base Salary in effect immediately prior to the occurrence of
the circumstances giving rise to such termination, plus (2) an amount equal to
the Recent Bonus, times (y) a fraction, the numerator of which is the number of
days remaining until the end of the Term as of the Date of Termination and the
denominator of which is 365.
(ii) Following Change in Control. If, following a Change in
Control of the Company, the Company shall terminate the Executive's employment
other than for Cause or Disability (it being understood that a purported
termination for Cause or Disability which is disputed and finally determined not
to have been proper shall be a termination by the Company in breach of this
Agreement), or the Executive shall terminate his employment for Good Reason,
then the Company shall pay the Executive, not later than the fifth day following
the Date of Termination, the aggregate of the following amounts:
(A) his full Base Salary and accrued vacation pay through the Date of
Termination at the rate in effect at the time Notice of Termination is given, or
the Date of Termination where no Notice of Termination is required hereunder,
and any other amounts which the Executive is entitled under any plan, policy,
practice or program of the Company or otherwise at the time such payment is due;
(B) the product of (x) the Recent Bonus, times (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the
Date of Termination and the denominator of which is 365;
(C) in lieu of any further salary or bonus payments to the Executive
for periods subsequent to the Date of Termination, and as a severance benefit to
the Executive, a lump sum amount equal to three times the Executive's annual
Base Salary in effect immediately prior to the occurrence of the circumstances
giving rise to such termination or, if greater, at the time of the Change in
Control, plus three times the Recent Bonus; and
(D) the Company will pay the Executive's reasonable costs of using a
qualified outplacement service. The Executive must initiate the use of such
outplacement counseling within sixty (60) days following Date of Termination.
The assumption of these costs by the Corporation also includes incidental
expenses which are customarily paid by other employers for a terminated employee
occupying a position similar to the Executive's position on Date of Termination.
v. Maintenance of Benefit. Unless the Executive is terminated for
Cause, the Company shall maintain in full force and effect, for
the continued benefit of the Executive and/or his family for two
(2) years after termination for any reason, all employee medical,
health and hospitalization plans and programs in which the
Executive and/or his family was entitled to participate in
immediately prior to the Date of Termination provided that the
continued participation of the Executive and/or his family is
possible under the general terms and provisions of such plans and
programs. In the event that the participation of the Executive
and/or his family in any such plan or program is barred, the
Company shall arrange to provide the Executive and/or his family
with benefits substantially similar to those which the Executive
and/or his family would otherwise have been entitled to receive
under such plans and programs from which his or their continued
participation is barred.
vi. Full Settlement. The Company's obligation to make the payments
provided for herein and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the
Company may have against the Executive or others. The Executive
shall not be required to mitigate the amount of any payment
provided for in Section 9 hereof by seeking other employment or
otherwise, nor shall the amount of any payment provided for in
Section 9 hereof be reduced by any compensation earned by the
Executive as the result of employment by another employer or
business, by profits earned by the Executive from any source at
any time before or after the Date of Termination, or otherwise.
The Company agrees to pay, to the fullest extent permitted by
law, all legal fees and expenses incurred by the Executive as a
result of any contest or dispute (regardless of the outcome
thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this
Agreement, or by the Executive in seeking to obtain or enforce
any right or benefit provided by this Agreement (including the
amount of any payment pursuant to Section 9 hereof or the
validity of any purported termination by the Company hereunder).
vii. Limitation on Certain Payments. Notwithstanding anything herein
to the contrary, in the event that the Executive shall become
entitled to payments pursuant to Section 9(d)(ii) hereof ("Change
of Control Payments"), if the value of the Change of Control
Payments plus any other amount that is paid or distributed or
distributable to the Executive would constitute an excess
parachute payment under Section 280G of the Code, the amount
payable or distributable to or for the benefit of the Executive
hereunder shall be reduced to the Alternate Payment. The
"Alternate Payment" shall be an amount expressed in present value
which maximizes the aggregate present value of the amounts
payable or distributable to the Executive hereunder without
causing any such amounts to be nondeductible by the Company
pursuant to Section 280G of the Code. The value of the Change of
Control Payments shall be determined in accordance with temporary
or final regulations, if any, promulgated under Section 280G of
the Code and based upon the advice of counsel selected by the
Company's independent auditors. The value of any noncash benefit
or any deferred payment or benefit shall be determined in
accordance with the principles of Sections 280G(d)(3) and (4) of
the Code.
j. Successors.
i. This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the
Executive other than by will or the laws of descent and
distribution. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforce able by
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises and
legatees. If the Executive should die while any amounts would
still be payable to him hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's personal or legal
representatives or, if there be no such persons, the Executive's
estate.
ii. This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
iii. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the
Executive, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his
employment for Good Reason, except for purposes of implementing
the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which executes and delivers an assumption and agreement
provided for in this Section 10(c) or which otherwise becomes
bound by all the terms and provisions of this Agreement by
operation of law, or otherwise.
k. Change in Control of the Company. For purposes of this Agreement, a
"Change in Control of the Company" shall mean and be deemed to have
occurred if:
(1) any person, entity or "group", within the meaning of Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), other than (A) the Company, its
subsidiaries or any employee benefit plan established and maintained
by the Company or its subsidiaries, or (B) Robert A. Smalley, Randall
S. Smalley, Robert A. Smalley, Jr., or any affiliate of any of the
foregoing individuals, becomes the "beneficial owner" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing twenty percent
(20%) or more of the combined voting power of the Company's then
outstanding securities; or
(2) individuals who, as of the date hereof constitute the Board (as of
the date hereof, the "Incumbent Board") cease for any reason to
constitute a majority of the Board, provided that any person becoming
a director subsequent to the date hereof whose election, or nomination
for election by the Company's stockholders was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board (other than the election or nomination of an individual whose
initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors
of the Company, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes of this
Agreement, considered as though such person were a member of the
Incumbent Board.
l. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices
provided by the Company or any of its subsidiaries and for which the
Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any stock option or
other agreements with the Company or any of its subsidiaries. Except
as herein specifically provided, amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of the Company or any of its subsidiaries
at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice or program.
m. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
----------------------------
----------------------------
If to the Company: Cruise America, Inc.
11 West Hampton Avenue
Mesa, Arizona 85210
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
n. Miscellaneous.
i. This Agreement has been approved the Compensation Committee of
the Board. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or
discharge is agreed to in a writing signed by the Executive and
such officer as may be specifically designed by the Board.
ii. The failure by either party hereto to insist upon compliance with
any condition or provision of this Agreement shall not be deemed
a waiver of such condition or provision or any other provision
hereof.
iii. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party which are not set forth expressly in this
Agreement and this Agreement supersedes any other employment
agreement between the Company and the Executive.
iv. The Company may withhold from any accounts payable under this
Agreement all Federal, State or other taxes as legally shall be
required.
v. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of
Florida, without reference to principles of conflicts of laws.
vi. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in
full force and effect.
vii. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement as of the date and year first above written.
CRUISE AMERICA, INC.
By:
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Title:
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Executive
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