Exhibit 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
November 1, 1997, by and between RYAN A. COOK ("Employee") and JRJ INVESTMENTS,
INC. ("Employer").
AGREEMENT
IN CONSIDERATION of the mutual covenants hereinafter made by each party
to the other, the Employer and the Employee agree as follows:
1. EMPLOYMENT. Employer agrees to employ Employee, and Employee
agrees to accept employment with Employer, in accordance with the terms and
provisions of this Agreement.
2. TERM OF EMPLOYMENT. The term of this Agreement shall commence on
November 1, 1997, and shall end on October 31, 2000, unless sooner terminated
in accordance with the terms and provisions of this Agreement.
3. SCOPE OF EMPLOYMENT AND COMPENSATION. Employee will be employed by
Employer as the General Sales Manager of the Volkswagen and Audi franchises
and their related used car departments at the dealership located at 2333 S.
Decatur Blvd., Las Vegas, Nevada (the "Dealership"). As the General Sales
Manager of the Volkswagen and Audi franchises at the Dealership, Employee
will perform such duties as are usual and customary for a general sales
manager in the automobile dealership industry.
As compensation for the performance of his duties, Employee shall receive
from Employer base compensation ("Base Compensation") of $30,000.00 per year
($2,500.00 per month), to be paid in equal installments consistent with
Employer's established payroll frequency for all employees during the term of
this Agreement. Additionally, Employee shall receive a monthly commission
(the "Commission") calculated on the monthly gross profit, as reflected in
the respective monthly Manufacturer's dealership statements, from sales, F&I,
manufacturers' sales incentives, and CSI bonuses for the Volkswagen and Audi
franchises and their related used car departments at the Dealership ("Gross
Profit") as follows: (a) if Gross Profit is less than $100,000 a five (5)
percent Commission on Gross Profit, (b) if Gross Profit exceeds $100,000,
but is less than $150,000 a six (6) percent Commission on total Gross Profit,
or (c) if Gross Profit exceeds $150,000 a seven (7) percent Commission on
total Gross Profit; provided that Employee shall be guaranteed compensation
of at least $7,500.00 per month. Employee's monthly Commission shall be paid
within fifteen (15) days after the end of the month for which such Commission
is due.
4. [INTENTIONALLY OMITTED]
5. COMPENSATION PRORATIONS. For purposes of calculating the
compensation set forth in Paragraph 3, all such amounts shall be prorated for
any partial calendar month or year during the term of this Agreement.
1
6. EMPLOYEE BENEFITS. In addition to the compensation set forth in
Paragraph 3, Employer shall:
(a) grant Employee fifteen (15) working days of paid vacation during
each twelve (12) calendar month period of the term of this Agreement.
(b) provide Employee with the use of two (2) new demonstrator vehicles
in accordance with the customary practice of the Employer immediately prior
to the date of this Agreement; and
(c) provide Employee and his spouse and dependent children, either
through direct premium payment or through additional compensation to enable
Employee to pay for such coverage, with hospital, surgical and medical
insurance coverage no less favorable than such coverage provided to Employee
by Employer immediately prior to the date of this Agreement; provided,
however, that if such direct premium payment or additional compensation
exceeds the amount otherwise payable by Employer to provide such benefits to
all employees of Employer, Employee shall recognize and report for federal
income tax purposes such excess, with such excess being subject to all
applicable federal income tax and social security and medicare premium
withholding requirements.
7. REIMBURSEMENT OF BUSINESS EXPENSES. Employee is authorized to
incur reasonable business expenses for promoting the business of Employer,
and for performing the duties contemplated by this Agreement, including, but
not limited to, expenditures for business entertainment and business travel.
Employer shall reimburse Employee for all such reasonable expenditures upon
Employee's presentation of an itemized account of and receipts for the
expenditures. An itemized account will be submitted by Employee to Employer
on a monthly basis.
8. TIME. The Employee agrees to devote his full time, energies,
abilities and attention to the performance of his obligations and
responsibilities under this Agreement.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION AND TRADE SECRETS.
During the term of this Agreement, Employee will have access to and become
familiar with various trade secrets, consisting of formulas, compilations of
information, records and other information owned by Employer and regularly
used in the operation of the business of Employer. Employee must not
disclose any such trade secrets , directly or indirectly, nor use them in any
way, either during the term of this Agreement or for a term of one (1) year
from the date this Agreement expires or is terminated, except as required in
the course of his employment with Employer; provided, however, that the
prohibition provided in this clause shall not apply to any such information
or knowledge thereof that is otherwise common knowledge in the new automobile
dealership industry.
10. EMPLOYER'S PROPERTY. All files, records, documents, equipment,
and other property of Employer used by Employee in the performance of his
obligations and responsibilities under this Agreement, whether or not
prepared by Employee, will remain the exclusive property of Employer and must
not be removed from the premises of Employer under any circumstances, other
than in connection with Employee's employment or otherwise contemplated by
this Agreement, without the prior written consent of Employer. Upon the
expiration or termination of this Agreement, Employee must immediately
deliver to Employer all property belonging to Employer in Employee's
possession, or under Employee's control, in good condition, ordinary wear and
tear excepted.
2
11. INDEMNIFICATION OF EMPLOYEE. Employer shall indemnify Employee for
all losses sustained by Employee as a direct result of the discharge of his
duties required by this Agreement, except for losses caused by Employee's
willful misconduct or gross negligence. "Gross Negligence," as used in this
Agreement, shall mean an act or omission that involves an intentional
disregard or failure to perform any job duty or function in reckless
disregard of the consequences whether or not those consequences were
foreseeable.
12. OFFICE AND CLERICAL SERVICES. Employer will provide Employee with
an office and such clerical services as are reasonably necessary for Employee
to perform his obligations and responsibilities under this Agreement.
13. TERMINATION OF EMPLOYEE FOR CAUSE. If Employee is terminated for
cause by Employer, Employee shall be entitled to his Base Compensation and
Commission, prorated to the date of termination, and Employer shall be
relieved of its obligation to pay Employee any remaining Base Compensation or
Commission that would thereafter be due under Paragraph 3 of this Agreement.
In addition, if Employee is terminated for cause by Employer, Employee shall
be bound by the non-compete provisions of Paragraph 19 of this Agreement.
14. DEFINITION OF "FOR CAUSE." The term "for cause," as used in this
Agreement, shall mean (a) a conviction of a felony, (b) commitment of fraud,
(c) theft of any property of Employer or Employer's customers, (d) reporting
to work under the influence of alcohol or controlled substances (other than
prescription medication which is possessed and being taken pursuant to a
current and valid physician's prescription), or (e) repeated failure on the
part of Employee to perform his duties in the usual and customary manner that
such duties are performed in the automobile business.
15. TERMINATION OF EMPLOYEE WITHOUT CAUSE. If Employee is terminated
by Employer without cause or this Agreement is terminated due to the Employer
selling or otherwise ceasing to own and operate the Dealership, Employee
shall be entitled to the greater of (a) an amount equal to his Base
Compensation and his Commission for the period of twelve (12) months prior to
the date of termination, or (b) his guaranteed monthly compensation for a
twelve (12) month period. If Employee is terminated by Employer without
cause, the non-compete provisions of Paragraph 19 of this Agreement shall
immediately be null and void. It is understood and agreed by the parties that
the voiding of Paragraph 19 shall not otherwise affect the validity, legality
or enforceability of the remaining provisions of this Agreement.
16. VOLUNTARY TERMINATION BY EMPLOYEE. If Employee voluntarily
terminates his employment with Employer, Employee shall be entitled to his
Base Compensation and Commission, prorated to the date of termination, and
Employer shall be relieved of its obligation to pay Employee any remaining
Base Compensation or Commission that would thereafter be due under Paragraph
3 of this Agreement. In addition, if Employee voluntarily terminates his
employment with Employer, Employee shall be bound by the non-compete
provisions of Paragraph 19 of this Agreement.
17. NOTICE OF TERMINATION. The Employee and the Employer understand
and agree that (a) each has the right, upon thirty (30) days written notice
(hereinafter referred to as the "Notice Period"), to terminate the employment
relationship, and (b) Employer may terminate the employment relationship
immediately for cause.
18. NOTICE PERIOD. The Employer agrees to continue in effect during
the Notice Period the compensation and benefits to which the Employee may be
otherwise entitled under this Agreement. The Employee agrees that during the
Notice Period, he will cooperate fully
3
with the Employer in all matters relating to the winding up of any pending
work and the orderly transfer to other employees of Employer of the work for
which he has most recently been responsible. The Employee understands and
agrees that, at or about the expiration of the Notice Period, or upon the
immediate termination of Employee, the Employer may convene an exit interview
to review the status of work for which the Employee has most recently been
responsible; to review the status of Employee's compensation, benefits, and
obligations under this Agreement; and to confirm that the Employee clearly
understands the nature and scope of his post-employment rights and
obligations.
19. COVENANT NOT TO COMPETE. Employee agrees that he will not, either
directly or indirectly, alone or with others, either as an employee, owner,
partner, agent, stockholder, member, director, officer or otherwise enter
into or engage in the business of operating a new vehicle dealership,
warranty repair business, or other related new automobile business with
respect to any of the Audi, BMW, Land Rover, Rolls-Royce, Bentley, or
Volkswagen franchises within the Las Vegas or Henderson, Nevada metropolitan
areas (the "Restricted Area") for a term of three (3) years from the date of
this Agreement (the "Restrictive Period").
20. NON-SOLICITATION. Employee will not individually, collectively,
or in conjunction with others, directly or indirectly, within the Restrictive
Period and Restricted Area, directly or indirectly solicit or hire any
employee of Employer or encourage any such employee to leave such employment
unless such employee has already terminated such employment with Employer, or
Employer and the Employee have mutually agreed in advance to the solicitation
or employment.
21. REMEDIES. The breach of or failure to perform any term of this
Agreement may be enforced by an action for injunctive relief, which may be
brought in any court of competent jurisdiction in Clark County, Nevada. None
of the remedies provided for in this Agreement shall be the exclusive remedy
of either party for a breach of this Agreement. The parties hereto shall
have the right to seek any other remedy at law or in equity in lieu of or in
addition to any remedies provided for in this Agreement.
22. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
23. INVALID PROVISIONS. If any provision contained in this Agreement
shall for any reason be held to be invalid, illegal, void, or unenforceable
in any respect, such provision shall be deemed modified so as to constitute a
provision conforming as nearly as possible to such invalid, illegal, void or
unenforceable provision while still remaining valid and enforceable; and the
remaining terms or provisions contained herein shall not be affected thereby.
24. AMENDMENT. This Agreement may not be amended or modified except
by a written instrument executed by both Employer and Employee.
25. ATTORNEYS' FEES. In the event of the breach of this Agreement by
either party, the prevailing party shall be entitled to reimbursement by the
non-prevailing party of any attorneys' fees and costs incurred in enforcing
the party's rights hereunder.
26. INCONSISTENCY. To the extent that this Agreement is inconsistent
with any Employer policies or any agreements between the parties, this
Agreement shall prevail.
4
27. PARAGRAPH HEADINGS. The paragraph headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or
any provision contained in this Agreement.
28. ENTIRE AGREEMENT. This Agreement contains and constitutes the
entire agreement between the parties regarding the subject matter hereof and
supersedes all prior agreements and understandings between the parties
relating to the subject matter of this Agreement.
DATED AND EFFECTIVE as of November 1, 1997.
EMPLOYER: JRJ INVESTMENTS, INC.
By:
------------------------------
Its:
------------------------------
EMPLOYEE:
----------------------------------
RYAN A. COOK
5