EXHIBIT 10.15
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Employment Agreement") is
effective as of January 28, 1997, by and between ECKLER INDUSTRIES, INC., a
Florida corporation ("Company"), and GARY R. SMITH, an individual ("Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that the attraction and retention of key
employees such as the Executive is essential to the Company's growth and
success; and
WHEREAS, the Company desires to employ Executive as its President and
Chief Executive Officer, and Executive is willing and able to render his
services to the Company from and after the date hereof, on the terms and
conditions of this Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
SECTION 1. EMPLOYMENT.
a. Subject to the terms and conditions of this Employment
Agreement, the Company shall retain the Executive as its President and Chief
Executive Officer, and the Executive shall render services to the Company in an
executive capacity. In such capacity, the Executive shall have and exercise
responsibility for managing, supervising, overseeing, and actively participating
in all aspects of the Company's business together with such similar or related
duties as may be assigned to the Executive from time to time by the Board of
Directors of the Company (the "Board"). The Executive may also be given
additional titles, and may be assigned responsibilities on behalf of certain of
the Company's affiliates commensurate with his position with the Company,
without requirement of additional compensation hereunder.
b. Throughout the period of his employment hereunder, the
Executive shall: (i) devote his full business time, attention, knowledge and
skills, faithfully, diligently and to the best of his ability, to the active
performance of his duties and responsibilities hereunder on behalf of the
Company; (ii) observe and carry out such reasonable rules, regulations,
policies, directions and restrictions as may be established from time to time by
the Board, including but not limited to the standard policies and procedures of
the Company as in effect from time to time; and (iii) do such traveling as may
reasonably be required in connection with the performance of such duties and
responsibilities. However,
the Company shall not have the right to transfer the Executive's primary
location from which he is to perform services to a location outside of Central
Florida without Executive's prior consent.
c. Anything contained herein to the contrary notwithstanding,
the Company shall have the right to replace the Executive as president of the
Company at any time, provided that (i) at the time of any such replacement
(unless same is in conjunction with the termination of this Agreement), the
Executive shall be assigned to comparable duties on behalf of First Choice Auto
Finance, Inc. ("First Choice") (which shall thereupon become the "Company" for
all purposes of this Agreement), and (ii) from and after any such replacement,
the Executive shall have the right to require the prepayment in full, on demand,
of all outstanding principal and unpaid accrued interest under any and all
promissory notes issued by the Company and/or First Choice to the Executive
and/or any of his affiliates (collectively, the "Notes").
SECTION 2. INTENTIONALLY OMITTED.
SECTION 3. TERM OF EMPLOYMENT. Subject to prior termination in
accordance with the terms and conditions of this Employment Agreement, the term
of employment of Executive by the Company pursuant to this Employment Agreement
shall be for an initial period of five (5) years (the "Employment Period")
commencing on the date hereof (the "Commencement Date"). The Employment Period
shall automatically renew for additional terms of three years each on the third
anniversary of the Commencement Date and on each anniversary of the Commencement
Date thereafter (an "Anniversary Date"), unless either party gives written
notice of termination to the other party not less than one hundred twenty (120)
days prior to such Anniversary Date, in which case the Employment Period shall
not so renew on such Anniversary Date and shall terminate two years from such
Anniversary Date. The term "Employment Period" shall include the initial
Employment Period and any and all successive renewals thereof.
SECTION 4. COMPANY'S PRINCIPAL PLACE OF BUSINESS. It is anticipated
that the Company's principal place of business will be located in the
Titusville, Florida area, or such other area in Florida as may be designated by
the Company's Board.
SECTION 5. COMPENSATION. During the Employment Period, subject to all
the terms and conditions of this Employment Agreement and as compensation for
all services to be rendered by Executive under this Employment Agreement, the
Company shall pay to Executive the following:
a. BASE SALARY. The Company shall pay to Executive a base
salary of $250,000 during each year of the initial five (5) year Employment
Period payable in equal periodic installments in accordance with the standard
payroll practices of the Company in effect from time to time, but in no case
less than once a month. During each year of the Employment Period (as
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renewed under Section 3 hereof) after the initial five years of the Employment
Period, the Board shall review the base salary amount to determine whether or
not to grant additional increases in the base salary amount.
b. PERFORMANCE BONUS. In addition to the annual base salary
provided hereunder, Executive may be entitled to receive an annual performance
bonus (the "Performance Bonus") as determined and in an amount set by the Board.
Executive shall have no right to receive partial payments of any such
Performance Bonus except as provided in Section 9 hereof and at the termination
of the Employment Period.
c. COMPANY CAR/CAR ALLOWANCE. During the Employment Period,
the Company shall provide to Executive, at the option of Executive, either (i)
an automobile for Executive's use, or (ii) an automobile allowance of $700 per
month which the Executive shall apply to leasing an automobile(s) for use by
executive and his immediate family. The Company shall pay all necessary
maintenance fees, insurance payments, gasoline expenses and all other expenses
related to the maintenance, operation and upkeep of the automobile. Upon
termination of the obligation of the Company to provide Benefits pursuant to
Section 6 hereof, the Executive shall have the right and option to purchase the
automobile at its then book value for financial statement purposes (if the
automobile is owned by the Company) or, subject to the terms of the lease, to
assume the lease for said automobile (if the automobile is leased by the
Company).
d. STOCK OPTIONS. During the Employment Period, Executive will
be provided with stock options under the Company's stock option plan(s) as
determined by the Company's Board of Directors (other than those granted on the
date hereof) and/or a committee appointed by the Company's Board of Directors in
accordance with the Company's stock option plan(s). Such awards shall be made on
a basis commensurate with other executives of the Company giving due
consideration to gross compensation levels and overall job performance.
SECTION 6. FRINGE BENEFITS. Executive shall be entitled to vacations,
health care benefits, fringe benefits and reimbursement for reasonable
out-of-pocket expense, including but not limited to those hereinafter detailed
(the "Benefits"), in accordance with the Company's practices covering executive
personnel. Unless Executive consents to a different treatment, his eligibility,
participation and benefits under the Benefits will be, and will continue to be,
not less than the Benefits provided to any other employee of the Company. The
Company shall use its best efforts to obtain waivers of waiting periods, if any,
applicable to particular benefits. The benefits shall, at a minimum, include:
a. coverage for Executive and his family, under any major
medical and dental insurance programs and plans, and under
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any short-term, long-term or permanent disability programs and plans, which are
or may become generally available to management employees of the Company.
Notwithstanding the foregoing, Executive shall be provided at minimum fully-paid
health, major medical, dental and life insurance (equal to $300,000);
b. retirement benefits at such time and on such amounts as are
paid to executives by the Company at such time as the Company institutes a
retirement or 401(k) plan;
c. reimbursement of all properly approved travel and business
related expenses normally paid by the Company for the benefit of its executives,
including, but not limited to, all expenses for the acquisition and use of a
cellular telephone and cellular service of Executive's choice. All expense
reports must conform to the Company's expense reimbursement policies at the time
the expenses were incurred;
d. four (4) weeks paid vacation per calendar year at any time
or times selected by Executive taking into account the convenience of the
Company. Executive shall give the Board reasonable prior notice of selected
vacation times of one week or more. While unused vacation time shall not be
cumulative from year to year, Executive may carry forward not more than four (4)
weeks of unused vacation time into the following calendar year, PROVIDED,
HOWEVER, that under no circumstances shall Executive be entitled to more than
eight (8) weeks of vacation per calendar year;
e. days of annual sick leave as is usual and customary for a
President and Chief Executive Officer of a company similar to Company;
f. a holiday on the following days with full pay: New Year's
Day, Easter, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, and such other holidays as the Company may declare;
g. paid leave and reimbursement of all travel, tuition and
related expenses in attending trade conferences and/or seminars and/or college
or other high level courses acceptable to the Board in its reasonable
discretion;
h. the Company shall purchase director and officer liability
insurance that shall include coverage for Executive, as is normal and customary
for a company of similar size to the Company and, in addition, the Company and
its subsidiaries shall indemnify Executive pursuant to a separate written
agreement for liabilities incurred as an officer to the fullest extent allowed
by Florida law.
i. Executive shall also be provided with a disability income
plan equal to one hundred percent (100%) of his base salary, at least 80% of
which is funded by insurance.
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j. Throughout the period of the Executive's employment
hereunder, the Company shall maintain (or cause to be maintained) and pay (or
cause to be paid) all premiums in respect of the existing William Penn life
insurance policy heretofore maintained by the Executive on his life, and the
Executive shall at all times have the right to designate the beneficiary or
beneficiaries thereof.
k. Florida Finance Group ("FFG") has maintained a policy of
disability insurance and key man life insurance on the life of the Executive
with death benefits of approximately $1 million payable to FFG (the "Policies").
The Company agrees to maintain such Policies at least until the payment of
creditors of FFG and further agrees that in the event of the death of the
Executive prior to payment of creditors of FFG, the proceeds of such Policies
shall be applied to the payment of creditors of FFG.
SECTION 7. TERMINATION.
a. MUTUAL TERMINATION. This Employment Agreement may be
terminated upon mutual written agreement of the Company and the Executive;
b. BY EXECUTIVE. This Employment Agreement may be terminated
at the option of the Executive, upon fourteen (14) days' prior written notice to
the Company, in the event that the Company shall (i) fail to make any payment to
the Executive required to be made under the terms of this Employment Agreement
after payment is due, or (ii) fail to perform any other material covenant or
agreement to be performed by it hereunder or take any action prohibited by this
Employment Agreement, and fail to cure or remedy same within thirty (30) days
after written notice thereof to the Company. In the event that this Employment
Agreement is terminated pursuant to this Section 7b, then at the option of the
Executive on notice to the Company, the full compensation payable to the
Executive for the Employment Period under Section 5a hereof (just as if
Executive had not been so terminated and was continuing to serve as an employee
hereunder for the full Employment Period in effect as of the date of
termination) shall be immediately due and payable by the Company.
c. BY THE COMPANY FOR CAUSE. This Employment Agreement may be
terminated at the option of the Company, upon written notice to the Executive,
"for cause" (as hereinafter defined), or in the event of the "permanent
disability" (as defined and provided for in Section 8) or death of the Executive
as provided for in Section 8. The Company may terminate Executive "without
cause" (as defined in Section 8).
(i) As used herein, the term "for cause" shall mean and be
limited to: (A) any material breach of this Employment Agreement by the
Executive which in any case is not fully corrected
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within thirty (30) days after written notice of same from the Company to the
Executive; (B) any fraud, theft, conversion, criminal misconduct, breach of
fiduciary duty, or gross and willful misconduct by the Executive in connection
with the performance of his duties and responsibilities hereunder; (C) habitual
breach by the Executive of any of the material provisions of this Agreement
(regardless of any prior cure thereof); or (D) gross neglect by the Executive of
his duties and responsibilities hereunder which in any case is not fully
corrected upon written notice of same from the Company to the Executive.
d. EFFECT OF TERMINATION FOR CAUSE. In the event of
termination for any of the reasons set forth in this Section 7 (except as
otherwise provided for hereinafter with respect to "permanent disability", death
or "without cause") Executive shall be entitled to no further compensation, Base
Salary or other Benefits under this Employment Agreement, except as to that
portion of any unpaid Base Salary or other benefits accrued and earned by him
hereunder up to and including the effective date of termination.
e. Upon and after any termination of this Agreement, the
Executive shall have the right to require the prepayment, on demand, of all
outstanding principal and unpaid accrued interest under any or all outstanding
Notes.
SECTION 8. TERMINATION BY REASON OF DEATH; PERMANENT DISABILITY; OR
WITHOUT CAUSE.
a. If the Company terminates Executive "without cause" which
shall mean for any reason other than as set forth in Section 7c(i), the
Executive terminates this Agreement under Section 7b, or in the event of
Executive's death or "permanent disability" (as defined below), Executive shall
(i) be entitled to receive an amount equal to the full compensation including
Benefits, to which he would otherwise be entitled under this Employment
Agreement for the remainder of the Employment Period in effect as of the date of
termination (the "Severance Payment") (just as if Executive had not been so
terminated and was continuing to serve as an employee hereunder for the full
Employment Period in effect as of the date of termination) and (ii) be provided,
for the remainder of the Employment Period, with all the insurance and other
benefits set forth in Section 6a hereof (PROVIDED, HOWEVER, to the extent that
the benefits in Section 6a cannot in fact be paid due to the fact that Executive
is not in fact employed by the Company, the Company promptly shall pay Executive
the monetary, after-tax equivalent thereof in U.S. Dollars, without any present
value adjustment). Such Severance Payment shall be payable in a single lump sum
distribution (without any present value adjustment) to Executive or his estate,
as the case may be, no later than ninety (90) days from the effective date of
such termination.
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b. PAYMENT IN THE EVENT OF PERMANENT DISABILITY. For purposes
of this Employment Agreement, Executive's "permanent disability" shall be deemed
to have occurred after one hundred twenty (120) days in the aggregate during any
consecutive twelve (12) month period, or after ninety (90) consecutive days,
during which one hundred twenty (120) or ninety (90) days, as the case may be,
Executive, by reason of his physical or mental disability or illness, shall have
been unable to discharge fully his duties under this Employment Agreement. The
date of permanent disability shall be the one hundred twentieth (120th) or
ninetieth (90th) day, as the case may be. In the event Executive shall dispute
that his permanent disability shall have occurred, he shall promptly submit to a
physical examination by a qualified practicing physician mutually selected by
the Company and the Executive and paid for by the Company (and reasonably
acceptable to the Executive). Unless such physician shall issue a written
statement to the effect that in his opinion, based on his diagnosis, Executive
is capable of resuming his employment and devoting his full time and energy to
discharging his duties within ten (10) days after the date of such statement,
such permanent disability shall be deemed to have occurred without further
dispute by Executive or Company. Notwithstanding the foregoing, the time periods
set forth in this Subsection b shall be modified as necessary so that they match
the time periods set forth in the appropriate disability insurance policy such
that there is no gap in payment of disability insurance benefits and Executive's
compensation hereunder.
SECTION 9. CHANGE OF CONTROL.
a. Notwithstanding anything herein to the contrary,
specifically including Section 7 hereof, in the event that within one (1) year
following a "Change of Control" of the Company (as defined below), Executive's
employment with the Company is either: (i) terminated by the Company, or (ii)
terminated by Executive because his regular duties hereunder are materially
reduced or diminished (the position and duties of President and Chief Executive
Officer of the Company being material to such employment), then (subject to
Section 9c that provides for a lump sum cash payment) the Company shall pay to
Executive for a period of thirty-six (36) full calendar months from the date of
termination, (A) the Base Salary in effect at the time of the termination of
employment (in the same installments as prior to termination), (B) the Benefits
to which he is entitled hereunder, and (C) when and as due, any other amounts to
which the Executive is entitled under any compensation plan of the Company,
including any Performance Bonuses (PROVIDED, HOWEVER, that to the extent that
the Benefits cannot in fact be provided or paid due to the fact that Executive
is not in fact employed by the Company, the Company shall pay to Executive the
monetary, after tax equivalent thereof, in U.S. dollars without any present
value adjustment. During the period that the Company is required to make
payments to the Executive pursuant to this Section 9a, or for a period of twelve
(12) months after termination of employment in the event
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the Executive elects a lump sum cash payment hereunder, the Company shall
maintain in full force and effect for the continued benefit of the Executive,
all employee benefit plans and programs in which the Executive was entitled to
participate immediately prior to the date of termination, including without
limitation, all Benefits provided pursuant to Section 6 hereof; provided that
the Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Executive's
participation and any such plan or program is barred, the Company shall arrange
to provide the Executive with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under such plans and
programs from which his continued participation is barred.
b. "Change of Control" shall be deemed to have occurred when:
(i) securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding voting securities
are acquired by a person or entity which is not a wholly-owned subsidiary of the
Company or any of its affiliates;
(ii) a merger or consolidation is consummated in which the
Company is a constituent corporation and which results in less than 50% of the
outstanding voting securities of the surviving or resulting entity being owned
by the then existing stockholders of the Company;
(iii) a sale or other disposition or transaction is
consummated by the Company of more than 50% of the Company's assets to a person
or entity which is not a wholly-owned subsidiary of the Company or any of its
affiliates; or
(iv) during any period of two consecutive years,
individuals who, at the beginning of such period, constituted the Board cease,
for any reason, to constitute at least a majority thereof.
c. In lieu of payments in installments hereunder, within
thirty (30) days of termination of employment, the Executive or Company may, at
his or its sole option, elect to have all amounts to which he is entitled
hereunder, be paid in a lump sum cash payment. The lump sum cash payment
provided herein shall be due within five (5) days of notice from the Executive
of the election to receive a lump sum cash payment pursuant to this subsection.
d. It is the intention of the Company and the Executive that
no portion of any payment or benefit paid or provided under this Section or any
other payment or benefit under this Agreement, or payments to or for the
Executive under any other agreement or plan shall be deemed to be an excess
parachute
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payment as defined in Section 280G of the Internal Revenue Code of 1986 as
amended (the "Code") or any successor provision. However, it is understood that,
depending upon elections hereunder made by the Executive, the present value of
all payments made under this Section and any other payment to or for the benefit
of the Executive in the nature of compensation, the receipt of which is
contingent on a Change of Control of the Company and to which Section 280G of
the Code or any successor provision thereto may apply, might exceed the maximum
amounts which the Executive may receive without becoming subject to the tax
imposed by Section 4999 of the Code or any successor provision. In the event
that the Executive becomes subject to a tax imposed by Section 4999 of the Code
or any successor provision as a result of the election of the Executive to
receive a lump sum cash payment hereunder or otherwise, the Company shall pay to
the Executive an amount equal to any excise tax imposed upon the Executive as a
result of such payment (in addition to any other payment or benefit hereunder).
SECTION 10. CONFIDENTIAL INFORMATION. Executive recognizes and
acknowledges that the Company has, through the expenditure of substantial time,
effort and money, developed and acquired certain confidential information and
trade secrets which have become of great value to the Company in its creation,
development and operations. Executive further acknowledges and understands that
in the course of performing his duties for the Company, Executive has had and
will have access to the trade secrets and confidential information of the
Company. Executive agrees that during the course of his employment and at any
time after the termination or expiration thereof he will not make any
independent use of, publish or disclose, or authorize anyone to publish or
disclose, to any other person or organization, any of the Company's trade
secrets and the Executive agrees that during the course of his employment and
for a period of one (1) year after the termination or expiration thereof, he
will not make any independent use of, publish or disclose, or authorize anyone
to publish or disclose to any other person or organization, any of the Company's
confidential information, except as required in the course of his employment
with the Company or by law. Upon request of the Company and, in any event upon
the cessation of Executive's employment with the Company, whether with or
without cause, Executive will promptly return all tangible expressions of trade
secrets and confidential information in his possession and control and all
copies thereof. As used herein, the term "trade secrets and confidential
information" shall mean client lists, and other related client and applicant
data, computerized compilation of such data, training materials and information,
policy and procedure manuals, video and audio recordings of training and
operation methods, sales, services, support and marketing practices and
operations, advertising themes, information concerning possible acquisition
candidates, formats of advertising and other business methods, and techniques,
processes and financial information of any subsidiary, affiliate or the Company,
all of which are not publicly available
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information and/or generally known to the trade or industry and which will be of
competitive use by them. "Trade secrets and confidential information" shall not
include (A) intangible information which is generally known and used by persons
with training and experience comparable to Executive as of the date of this
Employment Agreement; (B) any information that was already known to the
recipient thereof other than by reason of any breach of any confidentiality or
non-disclosure agreement; and (C) all intangible information which is common
knowledge in the industry or otherwise legally in the public domain.
Executive further agrees that the restrictions set forth in
this Section 10 are in addition to, and not in lieu of, any other restrictions
or obligations placed upon him, and/or any rights or remedies available to the
Company, by any statute or at common law.
SECTION 11. COVENANT NOT TO COMPETE. If, and only if this Agreement is
terminated by the Company for cause, by the Executive when the Company is not in
breach of this Agreement, or by Executive in accordance with Section 7 herein,
Executive covenants and agrees that, in order to protect the Company's
legitimate business interest in its trade secrets and confidential information,
special training, goodwill, and substantial relationships with prospective or
existing customers or suppliers during the Employment Period and for a period of
six (6) consecutive months (the "Non-Compete Period") following the expiration
or termination of this Employment Agreement or any renewal of the Employment
Agreement, Executive will not, without the prior written consent of the Company,
directly or indirectly,
a. engage, whether by virtue of stock ownership, management
responsibilities or otherwise, in companies, businesses, organizations and/or
ventures that compete with the business of the Company or any of its
subsidiaries, affiliates or its parent company. For the purposes hereof, the
Company shall be deemed to be in the business of operating automobile
dealerships locally in the United States of America that engage in the retailing
of new and used automobiles, light duty trucks and businesses ancillary or
related thereto, PROVIDED, HOWEVER, that with regard to any post-termination
employment during the Non-Compete Period, for any business of Executive to be
deemed competitive for the purposes hereof, it must be located within a 50-mile
radius of any location where the Company is: (i) currently conducting business,
(ii) has an ownership interest of 20% or more in an enterprise that, at the time
the competing activities commence, competes with the Company's business, or
(iii) within a 50 mile radius of any location where the Company has conducted,
or has definitive plans to conduct business twelve (12) months before or after
the termination or expiration of this Employment Agreement; or
b. become interested, directly or indirectly, whether as
principal, owner, stockholder, partner, agent, officer,
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director, employee, salesman, joint venturer, consultant, advisor, independent
contractor or otherwise, in any person, firm, partnership, association, venture,
corporation or entity engaging directly or indirectly in any of the activities
described in Subsection 11a above; or
c. knowingly solicit the employment of any of the Company's
Personnel (as hereinafter defined) customers, suppliers or distributors.
d. For purposes of this Employment Agreement:
(i) the term "Company" shall include any subsidiary, any
affiliates, any successor in interest whether by sale, merger, liquidation or
the like, and any of the Company's other subsidiaries and affiliates;
(ii) the term "Company Personnel" shall mean any person
employed by the Company, any subsidiary or any of its affiliates at any time
through the end of the term of this Employment Agreement, but excluding any
person who has left such employment for a continuous period exceeding one (1)
year;
e. None of the foregoing shall prevent Executive from holding,
or having the right to acquire, up to three percent (3%) in the aggregate of any
class of securities of any entity engaged in the prohibited activities described
above.
SECTION 12. REMEDIES IN EVENT OF BREACH.
a. INJUNCTIVE RELIEF. The parties acknowledge that each would
be irreparably harmed by any breach of the covenants contained in Sections 10
and 11 of this Employment Agreement, and that either party's remedy at law for
any breach by the other party of their obligations under Sections 10 and 11 of
this Employment Agreement would be inadequate, and would be impossible to
ascertain and therefore, in the event of the breach or threatened breach of any
obligations under Sections 10 and 11 of this Employment Agreement, either party,
in addition to any and all other remedies at law or in equity, shall have the
right to enjoin the other party from any threatened or actual activities in
violation thereof; and the parties hereby consent and agree that temporary and
permanent injunctive relief may be granted in any proceedings which might be
brought to enforce any such covenants without the necessity of proof of actual
damages and without the necessity of posting bond. In the event either party
does apply for such injunction, the other party shall not raise as a defense
thereto that such applying party has an adequate remedy at law.
b. DAMAGES; ACCOUNTING FOR PROFITS. In addition to any
injunctive relief that may be granted to the Company or Executive for breach of
this Employment Agreement, the Company and Executive shall be entitled to
recover all damages, including
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reasonable attorneys' fees and costs (including paralegals' fees), sustained or
incurred by the Company or Executive by reason of a violation or threatened
violation of the terms of this Employment Agreement, and to receive such other
remedy or remedies as the court determines is appropriate. Executive covenants
and agrees that, if he violates any of his covenants or agreements under
Sections 10 and 11 hereof, the Company shall be entitled to an accounting and
repayment of all profits, compensations, commissions, remunerations or benefits
which Executive directly has realized as a result of, growing out of, in
connection with, any such violation; such remedy shall be in addition to and not
in limitation of any injunctive relief or any other rights or remedies to which
the Company is or may be entitled at law or in equity or under this Employment
Agreement.
c. In the event that the Company terminates or seeks to
terminate this Agreement or the employment of the Executive hereunder and
disputes its obligation to pay or fails or refuses to pay or provide when due to
the Executive any portion of the amounts or benefits due to the Executive
hereunder and the Executive prevails in any amount, the Company shall pay or
reimburse to the Executive all costs incurred by him in such dispute or
collection effort, including reasonable attorneys' fees and expenses (whether or
not suit is filed) and costs of litigation. The Executive shall not be required
to mitigate the amount of any payment or benefit provided herein by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided herein be reduced by any compensation earned by the Executive as a
result of employment by another employer or by retirement benefits after the
date of termination of employment or otherwise. The payments and benefits
hereunder are in addition to any and all payments and benefits to which the
Executive is entitled under the terms of this Agreement or otherwise.
SECTION 13. RELOCATION REIMBURSEMENT.
a. The Company shall relocate Executive and his spouse from
his current residence at 8022 Bayhaven Drive, Seminole, Florida 33776 (the
"Residence") to the area of the Company's principal place of business, in
accordance with the following terms:
(i) The Company shall reimburse Executive for the
reasonable cost of travel and hotel accommodations for Executive and his spouse
during each relocation trip;
(ii) The Company shall, at its sole expense, have
Executive's personal property relocated from his Residence to either a new
residence in the central Florida area or to such storage area reasonably
designated by the Executive;
(iii) At such time as the Board of Directors determines
the location of the principal place of business of the
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Company, Executive shall cause his Residence to be placed for sale at a price
consistent and competitive with other comparable properties located nearby (the
"Sales Price"). Executive shall accept any offer to purchase the Residence for
any amount equal to or greater than the fair market value of the Residence as
determined by an independent appraiser (the "Acceptance Price"). If, after
ninety (90) consecutive days (the "Sale Period"), Executive has not identified a
ready, willing and able buyer for the Residence who has offered not less than
the Acceptance Price, then the Company shall execute an agreement requiring it
to purchase the Residence from Executive, provided such purchase is not
prohibited by any zoning, regulations, laws or restrictions applicable to such
Residence, for an amount equal to the Acceptance Price. Executive shall notify
the Company of any offers he receives during the Sale Period. The Company shall
have ninety (90) days following its execution of the agreement to close such
transaction. The Company may, at its option, instruct the Executive to accept an
offer for the purchase of the Residence that is below the Acceptance Price,
provided that the Company pays to Executive at the time of the closing of such
sale of the Residence, the difference between the amount actually paid by the
buyer and the Acceptance Price. Additionally, the Company shall pay, on behalf
of Executive, all closing costs, realtor commissions, escrow charges and home
warranty premiums;
(iv) If Executive has not secured a new residence in the
central Florida area within a reasonable proximity to the Company's principal
place of business, then the Company, for a period not to exceed six (6) months
from the Commencement Date hereof, shall provide housing for Executive and his
spouse, at no cost to Executive; PROVIDED, HOWEVER, that the Company shall not
be obligated to pay for such expenses as local and long distance telephone
service, utilities and such other expenses that Executive would be obligated to
pay himself if Executive and his spouse were still living in the Residence. The
Company shall also pay any storage costs for Executive's personal property
during the aforementioned six (6) month period; and
(v) the Company shall extend substantially the same
benefits as provided for in this Section 13 to Executive should it decide to
relocate those of its offices which reasonably require Executive's day to day
presence to a location more than 50 miles from the current intended offices in
central Florida.
SECTION 14. REASONABLENESS. Executive has carefully read and considered
the provisions of Sections 10 and 11 hereof and, having done so, agrees that the
restrictions set forth in such sections, including, but not limited to, the time
period of restriction, the geographical areas of restriction, and the definition
of Company Products set forth therein, are fair and reasonable and are
reasonably required for the protection of the legitimate business interests of
the Company, and further that the geographical areas of restriction set forth
therein
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accurately reflect the area in which he will be actively engaged in the
performance of services.
SECTION 15. NO INCONSISTENT OBLIGATIONS. Executive represents and
warrants that no action required of his under this Employment Agreement or any
other agreements or understandings, written or oral, entered into with the
Company will conflict with, breach or otherwise impair any previously existing
agreements or understandings, whether written or oral, into which Executive has
entered with other persons or entities, including agreements with respect to
proprietary information or non-competition.
SECTION 16. NOTICES. Any notice to be given hereunder shall be deemed
to be given when delivered by hand or by overnight courier to the party for whom
the notice is intended, or three (3) days after notice is placed in the U.S.
mail properly addressed to the party for whom notice is intended, at the
following address:
If to the Company: Eckler Industries, Inc.
5200 S. Washington Avenue
Titusville, Florida 32780
If to Executive: Gary R. Smith
5200 S. Washington Avenue
Titusville, Florida 32780
SECTION 17. BINDING EFFECT AND GOVERNING LAW. This Employment Agreement
supersedes all prior understandings and agreements between the parties with
respect to the subject matter hereof. This Employment Agreement shall be binding
upon the legal representatives, heirs, distributees, successors and assigns of
the parties. The Employment Agreement contains the entire agreement of the
parties, and may not be changed orally but only in writing signed by the party
against whom enforcement of any such change is sought. It is agreed that a
waiver by either party of a breach of any provision of this Employment Agreement
shall not be operated or be construed as a waiver of any subsequent breach by
that same party. This Employment Agreement shall be governed by the laws of the
State of Florida.
SECTION 18. SEVERABILITY. In the event that any terms or provisions of
this Employment Agreement shall be held to be invalid or unenforceable by a
court of competent jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remaining terms and provisions
hereof.
SECTION 19. ASSIGNABILITY. The rights or obligations contained in this
Employment Agreement shall not be assigned, transferred, or divided in any
manner by Executive or Company, without the prior written consent of the other;
PROVIDED, HOWEVER, that nothing in this Section 19 shall preclude: (i)
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Executive from designating a beneficiary to receive any benefits hereunder upon
his death, or the executors, administrator or other legal representatives of
Executive or his estate from assigning any rights hereunder to the person(s)
entitled thereto; or (ii) the Company's right to assign this Employment
Agreement to a related entity subsequent to any merger, stock for stock
exchange, reorganization, or otherwise. Notwithstanding the foregoing, this
Employment Agreement shall be binding on any entity which by purchase of assets,
merger, or otherwise, becomes a successor to the business of the Company.
SECTION 20. DIRECTOR & OFFICER LIABILITY INSURANCE. The Company shall
obtain Director & Officer Liability Insurance of a type that is usual and
customary for businesses similar to Company.
SECTION 21. HEADINGS. The headings of paragraph herein are included
solely for convenience of reference and shall not control the meaning or
interpretation and performance of any of the provisions of this Employment
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed the day and year first above written.
COMPANY:
ECKLER INDUSTRIES, INC.
By:
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EXECUTIVE:
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Gary R. Smith