FORM OF CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into this ____
day of _____, 19__, by and between Holiday RV Superstores, Inc., a Florida
Corporation ("Company") and ___________ ("Consultant").
WITNESSETH:
WHEREAS, Company desires to retain consultant to assist the Company in
mergers and acquisitions; and, Consultant desires to be retained by the Company
as an independent contractor to perform such services, all in accordance with
the terms and conditions of this Agreement as hereinafter set forth.
NOW THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the parties hereto agree as follows:
1. EMPLOYMENT. Company does hereby employ Consultant as its Consultant for
purposes of assisting the Company in mergers and acquisitions activities as an
independent contractor; and, Consultant does hereby accept such employment upon
the terms and conditions hereinafter as set forth.
2. TERM. Subject to the provisions for termination as hereinafter provided,
the term of this Agreement shall begin on the above date ( "Effective Date") and
shall end on the 30th day of June, 2001.
3. CONSULTANT'S COMPENSATION. Subject to the terms of this Agreement, as
full compensation for Consultant's services, the Company shall pay the
Consultant as follows:
3.1 Fees. During the term of this Agreement, the Company shall pay
Consultant a total of $_____ in fees payable in monthly installments of
$______, in advance, commencing with the Effective Date.
3.2 Consultant's Cell Telephone Expense. Commencing with the Effective
Date of this Agreement and on the first day of each consecutive month
thereafter during the term of this Agreement, Company shall reimburse
Consultant, in advance and without Consultant's need to comply with the
provisions of Paragraph 3.5, the sum of __________ Dollars ($_____) per
month as an allowance for Consultant's cellular phone usage.
3.3 Medical Insurance Benefits. During the term of this Agreement,
Consultant shall be a participant in the Company's group health insurance
program it has for its employees, Company paying the premium on Consultant
and his dependents; or in lieu thereof, at Consultant's option, the Company
shall pay Consultant, in advance, on the first day of each month after the
Effective Date of this Agreement, as reimbursement of Consultant's expenses
for such health insurance for himself and his dependents an amount equal to
the cost of such health insurance to Consultant. Nothing herein to the
contrary, the Company shall not be obligated under the provisions of this
paragraph 3.3, for any amount in excess of COBRA costs of such health
insurance to Consultant.
3.4 Expenses. During the term of this Agreement, Consultant shall be
entitled to reimbursement by the Company for all actual, reasonable and
direct out-of-pocket travel and entertainment expenses, telephone, fax and
all other expenses directly related to Consultant's performance under this
Agreement incurred including business expenses the deduction of which is
statutorily limited by the Internal Revenue Code by him in the performance
of his duties hereunder, provided such expenses (i) are business expenses
that are properly tax deductible by the Company; and, (ii) were
pre-approved by an appropriate officer of the Company. Consultant shall
provide the Company with written documentation of any expense submitted for
reimbursement as required by Company by the twentieth (20th) day of the
month following the month in which such expenses were incurred and the
Company shall reimburse the Consultant upon the first day of the month
following the month in which the Consultant has submitted claim for
reimbursement hereunder.
3.5 Stock Options. Upon the execution of this Agreement, the Company
will grant to Consultant an option to purchase ______ shares of the
Company's common stock, par value $.01, with an exercise price equal tot
$_____ per share which option to be in the form attached hereto, marked
Exhibit "A", and incorporated by reference herein.
4. CONSULTANT'S INDEMNIFICATION. Consultant shall indemnify and hold
harmless Company from any and all payroll taxes, including but not limited to
withholding taxes, social security taxes, medicare/medical taxes, and federal
and state unemployment taxes and all penalties and interest thereon that the
Company is found to be liable for and/or owing by the Internal Revenue Services
and/or Florida and other states' departments of revenue on any amounts paid to
Consultant by the Company hereunder.
5. DUTIES AND OBLIGATIONS OF CONSULTANT. The Consultant shall have the
following duties and obligations under this Agreement.
5.1 Consultant shall report to, and be subject to the authority of the
Company's Board of Directors and such persons as it shall direct;
5.2 Assist Company in the review, analysis and structuring of
potential mergers and/or acquisitions as well as Company's negotiation of
terms for such acquisitions and due diligence investigations;
5.3 Review Company's future Business Plans and operating budgets; and,
5.4 Assist Company in its corporate long range planning and market
direction.
Nothing herein shall require Consultant without Consultant's prior consent
to provide services to the Company more than twenty (20) hours per week for more
than forty-eight (48) weeks per year.
6. WORKING FACILITIES. Consultant shall furnish its own office and office
staff and such other facilitates, services and personnel, which, in the opinion
of the Company and the Consultant are adequate for the performance of
Consultant's duties hereunder; provided, Company shall provide at all times
during this Agreement an executive office at its home office and office staff
for use by Consultant's personnel.
7. EXPENSES. Subject to the provisions of Paragraph 3.4, Consultant shall
pay all expenses incurred by him in carrying out his duties and obligations
pursuant to the provisions of this Agreement; including but not limited to,
automobile expenses, insurance, entertainment and travel expenses, and the like.
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8. CONFIDENTIALITY.
8.1 Consultant agrees that, both during the term of its employment and
after the termination of its employment for any reason, Consultant shall
not directly or indirectly use or disclose, except as authorized by the
Company in connection with the performance of Consultant's duties, any
Confidential Information, as defined hereinafter, that Consultant may have
or acquire (whether or not developed or complied by Consultant and whether
or not Consultant has been authorized to have access to such Confidential
Information) during the term of this Agreement. The term "Confidential
Information" as used in this Agreement shall mean and include any
information, data and known-how relating to the Company's business that is
disclosed to Consultant by the Company or known by him as a result of his
relationship with the Company and not within the public domain (whether
constituting a trade secret or not), including without limitation, the
following information:
8.1.1 financial information, such as Company's earnings, assets,
debts, prices, fee structure, volumes of purchases or sales or other
financial data, whether relating to Company generally, or to
particular productions, service, geographic areas, or time periods;
8.1.2 marketing information, such as details about ongoing or
proposed marketing programs or agreements by or on behalf of Company,
marketing forecasts or results of marketing efforts or information
about impending transactions;
8.1.3 intellectual property information, such as formulas, design
details or parameters, software source codes, proprietary programs,
devises, techniques and processes, ongoing or planned joint venture
activities, and licensing terms or conditions;
8.1.4 personnel information, such as employees' personal or
medical histories, compensation or other terms of employment, actual
or proposed promotions, hiring, resignations, disciplinary actions,
terminations or reasons therefor, training methods, performance or
other employee information;
8.1.5 customer information, such as any compilation of past,
existing or prospective customers, customer proposals or agreements
between customers and Company, status of customer accounts or credit,
or related information about actual or prospective customers; or
8.1.6 information with respect to any customer affairs that the
Company agreed to treat as confidential.
8.1.7 information with respect to possible or actual acquisition
candidates and the Company's parameters for acquiring other entities.
The term "Confidential Information" does not include information (I) which is in
or comes into the public domain other then through Consultant, (ii) which was in
the possession of Consultant before the Effective Date, (iii) which at any time
lawfully comes into the Consultant's possession from third parties who have a
right to disclose the same.
8.2. The covenant contained in this Section 8 shall survive the termination
of Consultant's employment by the Company for any reason for a period of two (2)
years; provided, however, that with respect to those items of Confidential
Information which constitute trade secrets under applicable law, Consultant's
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obligations of confidentiality and non-disclosure as set forth in this Section 8
shall continue to survive after such two (2) year period for as long as such
items remain trade secrets under applicable law. These rights of the Company are
in addition to those rights the Company has under the common law, applicable
statutes for the protection of trade secrets or any other agreement between the
Company and Consultant respecting the subject matter hereof.
9. COVENANT NOT TO COMPETE. Consultant agrees that, both during the term of
this Agreement and for a period of two (2) years after its termination for any
reason, it shall not directly or indirectly operate, manage, own, control,
provide consulting services to, or in any way be connected with or concerned
with or be interested fin a business competitive in nature to Company's and its
affiliates' businesses; nor shall he engage or participate in any effort or act
to induce any of the customers, suppliers, associates, employees, or independent
contractors of Company and its affiliates to take any action or refrain from
taking any such action or inaction which might be disadvantageous to Company and
its affiliates, including, but not limited to the solicitation of Company and
its affiliates' customers, suppliers, associates, employees or independent
contractors to cease doing business, or to discontinue their association or
employment with Company and its affiliates; no shall it engage in casting
disparagement upon the Company.
10. RIGHTS TO MATERIALS. All records, files, memoranda, reports, price
lists, customer lists, drawings, plans sketches, documents, product formulas and
components and the like (together with all copies thereof) relating to the
business of the Company and its affiliates, which Consultant shall use or
prepare or come in contact with in the course of, or as a result of, its
employment shall as between the parties hereto, remain the sole property of the
Company and its affiliates. Upon the termination of its employment or upon the
prior demand of the Company, Consultant shall immediately return all such
materials and shall not hereafter cause removal thereof from the premises of the
Company.
11. WORKS MADE FOR HIRE. The Company's and Consultant acknowledge that in
the course of Consultant's engagement by the Company, Consultant may from time
to time create for the Company copyrightable works. Such works may consist of
manuals, pamphlets, instruction materials, computer programs, films, tapes or
other copyrightable material, or portions thereof, and may be created within or
without the Company's facilitates and before, during or after Consultant's
normal business hours. All such works related to or useful in the business of
the Company are specifically intended to be works made for hire and shall be the
property of the Company, and Consultant shall cooperate with the Company in the
protection of the Company's copyrights therein, and to the extent deemed
desirable by the Company, the registration of such copyrights.
12. DISCOVERIES. Consultant agrees that any inventions, discoveries or
improvements that Consultant may develop or conceive during the course of
Consultant's employment shall be the sole property of the Company. Consultant
agrees to promptly disclose to the Company in writing all such inventions,
discoveries and improvements, whether directly or indirectly related to the
business or Products of the Company or whether made solely by the Consultant or
in conjunction with others. At the Company's request and expense, both during
and after Consultant's employment, Consultant will promptly execute a specific
assignment of title to the Company (or any specified member thereof) of each
invention, discovery or improvement described in this Section and perform all
other acts reasonable necessary to enable the Company to secure a patent
therefor in the United States and in foreign countries and to maintain, defend
and assert such patents. This obligation shall survive the termination or
expiration of this Agreement.
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13. TERMINATION.
13.1 Death. This Agreement shall terminate in the event of the Consultant's
death. Except for any compensation under Section 3, accrued, vested and unpaid
as of the date of any such termination, the Company shall be under no further
obligation hereunder to the Consultant or to Consultant's heirs or personal
representatives, and the Consultant or Consultant's heirs or personal
representatives no longer shall be entitled to receive any payments or any other
rights or benefits under this Agreement.
13.2 Disability. The Company may terminate this Agreement because of
Consultant's disability if an independent physician mutually selected by the
Consultant (or Consultant's legal representative) and the Company's Board of
Directors or its designee (or, upon a good faith inability of such parties to
effect the selecting within a period of ten (10) days, then by an independent
physician selected by the independent certified public accounting firm then
serving the Company) shall have determined that the Consultant has been
substantially unable to render to the Company services of the character
contemplated by Section 1 of this Agreement, by reason of a physical or mental
illness or other condition, for more than 60 consecutive days or for shorter
periods aggregating more than 90 days in any period of 12 consecutive months
(excluding in each case days on which the Consultant shall be on vacation). In
the event of such disability, the Consultant shall be entitled to receive any
compensation under Section 3, accrued, vested and unpaid as of the date of any
such termination and upon the Consultant's receipt of such compensation the
Company shall be under no further obligation hereunder to the Consultant and the
Consultant no longer shall entitled to receive any payments or any other rights
or benefits under this Agreement.
13.3 Termination by the Company for Cause. The Company may terminate this
Agreement hereunder for "Cause." For purposes of this Agreement, "Cause" shall
mean any of the following:
(i) The Consultant's repeated willful misconduct or gross
negligence;
(ii) The Consultant's repeated conscious disregard of
Consultant's obligations hereunder;
(iii)The Consultant's commission of any act involving fraud
or moral turpitude; or,
(iv) A determination that the Consultant has demonstrated a
dependence upon any addictive substance, including
alcohol, controlled substances, narcotics or
barbiturates;
provided, however, that if the Company desires to terminate the
Consultant for any of the reasons set forth in: (1) clause i or ii of
this Section 13.3, the Company must be able to demonstrate that, within
the 60 day period immediately following the alleged occurrence of each
proscribed act or omission preceding the act or omission upon which it
is basing its right to effect a termination for Cause, it furnished to
the Consultant a written description of the allegedly proscribed act or
omission and a statement advising Consultant that the Company view such
conduct as being of the type which could lead to a termination of this
Agreement for Cause; or, (2) clause iii or iv of this Section 13.3, the
Company shall first be required to obtain an opinion from Company
counsel to the effect that there is an adequate basis upon which either
such determination may be made. Except for any compensation under
Section 3 accrued, vested and unpaid as of the date of any such
termination, the Company shall be under no further obligation hereunder
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to Consultant and Consultant no longer shall be entitled to receive any
payments or any other rights or benefits under this Agreement.
13.4 Termination by the Company Other Than for Cause. The Company may
terminate this Agreement hereunder upon the expiration of the initial term,
provided that notice of termination is furnished at least 30 days prior to its
effectiveness and subject, to the right of Consultant, within such notification
period, to effect his own Good Reason termination as described in Paragraph
13.5, below. In the event of such termination, as well as, in the event that
Consultant shall have timely effected a Good Reason termination, the
compensation authorized under the provisions of Paragraph 13.5, and following
Consultant's receipt of such compensation the Company shall be under no further
obligation hereunder to Consultant and Consultant no longer shall be entitled to
receive any compensation or any other rights or benefits under this Agreement.
13.5 Termination by Consultant for Good Reason. Notwithstanding anything
herein to the contrary, Consultant shall be entitled to terminate this for "Good
Reason" without breach of this Agreement. For purposes of this Agreement, "Good
Reason" shall exist upon the occurrence of any of the following, in each case
without the Company first being in receipt of Consultant's written consent:
i. A directed change in Consultant's principal place of
providing services hereunder to a location other than
Central Florida area:
ii. A material adverse change in, or a substantial
elimination of, the duties and responsibilities of
Consultant;
iii. A material breach by the Company of its obligations
hereunder;
iv. A change in control of the Company;
v. Receipt by Consultant of the Company's notice that it
intends to terminate Consultant other than for cause
either at the end of the term of this Agreement, or
prior thereto; or,
vi. Impairment of Consultant's health to an extent that
makes Consultant's continued performance of duties
under this Agreement hazardous to Consultant's physical
or mental health, provided that consultant shall have
furnished the Company with a written statement from a
qualified physician to that effect, and, provided
further, that, at the company's request, made within
ten (10) days after its being furnished with a copy of
such statement, Consultant shall submit to an
examination by a physician selected by the Company and
such physician shall have concurred in writing with the
conclusion of Consultant's physician.
for purposes of clause iv, above, a "change in control of the Company" shall
mean (A) the acquisition, directly or indirectly, after the date hereof, by any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as if effect on the date hereof), of voting power over
voting shares of the Company that would entitle the holder(s) thereof to cast at
least 25% of the votes that all shareholders would be entitled to cast in the
election of directors of the Company, provided that such term shall not be
deemed to apply to an acquisition by one or more institutional underwriters
directly from the Company in accordance with the conditions of a registration
statement theretofore filed with and declared effective by the United States
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Securities and Exchange Commission; or, (B) the failure, at any time during any
period of one year occurring within the term of this Agreement, of the
individuals who at the beginning of such period shall constitute the Company's
Board of Directors to constitute at least a majority of such membership, unless
the election of each director who is not a director at the beginning of such
period shall have been approved in advance by directors representing at least
75% of the directors then in office who are directors at the beginning of the
period.
In the event of a Good Reason termination by Consultant within the term of
this Agreement, consultant shall be entitled to receive from the Company, on the
first day of each succeeding month within such term, the compensation set forth
in Paragraph 3.1 to 3.3, inclusive, on the first day of each of the succeeding
12 months, ("Post-Termination Compensation"); provided that the Company shall
have the right at any time during such deferred payment period to pay the
balance of any Post-Termination Compensation then owing Consultant in one lump
sum; and provided further that Consultant's entitlement to Post-Termination
Compensation shall cease upon (a) Consultant's death, or (b) the date of
occurrence of any material breach by Consultant of Consultant's post-employment
covenants described in Section 8 and 9, above, but, in either event, only to the
extent such breach results in material damage, cost or expense to the Company.
Except for such continuing entitlement to compensation under Section 3, accrued,
vested and unpaid as of the date of any such termination, Consultant no longer
shall be entitled to receive compensation under this Agreement, and the Company
shall have no further obligation hereunder to Consultant following any such
termination.
13.6 Termination by Consultant for Other Than Good Reason. Consultant may
terminate Consultant's engagement hereunder upon the expiration of the term, by
providing notice of such termination at least 30 days in advance of such
expiration date. In the event of such termination, Consultant shall be entitled
to receive any compensation under Section 3, accrued, vested and unpaid as of
the date of any such termination; and following Consultant's receipt of such
compensation the Company shall be under no further obligations hereunder to
Consultant and consultant no longer shall be entitled to receive any
compensation under this Agreement.
13.7 "Bankruptcy of Company". The Company's use of any provisions of the
Federal Bankruptcy Act, comparable state statutory law, receivership, insolvency
of dissolution of the Company.
13.8 "Revocation." The written revocation of this Agreement by all parties.
14. SEVERABILITY. Except as noted below, should any provisions of this
Agreement be declared or determined by any court of competent jurisdiction to be
unenforceable or invalid for any reason, the validity of the remaining parts,
terms or provisions of this Agreement shall not be affected thereby and the
invalid or unenforceable part, term or provision shall be deemed not to be a
part of this Agreement. The covenants set forth in this Agreement are to be
reformed pursuant to Section 15 if held to be unreasonable or enforceable, in
whole or in part, as written and as reformed, shall be deemed to be part of this
Agreement.
15. REFORMATION. If any of the covenants or promises of this Agreement are
determined by any court of law or equity, with jurisdiction over this matter, to
be overly broad and therefore unenforceable, in whole or in part, as written,
Consultant hereby consents or promises so as to be reasonably and enforceable
and that said court enforce the covenant or promise as so reformed.
16. INJUNCTIVE RELIEF. Consultant understands, acknowledges and agrees that
in the vent of a breach or threatened breach of any of the covenants and
promises contained in Section 8 to 12, inclusive, the Company will suffer
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irreparable injury for which there is no adequate remedy at law and the Company
for Consultant's breach or threatened breach as aforesaid, shall be entitled, as
a matter of right, and without notice to Consultant, to temporary injunctive
relief, without posting a bond or other security, and upon final hearing to have
a permanent injunction entered against Consultant by a court of competent
jurisdiction. Consultant further acknowledges, however, that the Company shall
have the right to seek a remedy at law as well as or in lieu of equitable relief
in the event of any such breach. In any such proceedings, the Company shall be
entitled to specific performance and to recover damages plus court costs and
reasonable attorney fees, including the same on appeal.
17. ASSIGNMENT. This Agreement is a contract for personal services and
shall not be assigned by the Company or Consultant in any manner or by operation
of law except by mutual written consent of the parties hereto; provided,
however, that this restriction against assignment shall not preclude assignment
by the Company without the consent of Consultant as a result of a merger into,
consolidation with, or sale of substantially all of the assets of the Company to
another entity. The terms and provisions of this Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns, and
upon Consultant and its heirs, personal representatives, successors and assigns.
The term "Company" as used in this Agreement shall be deemed to include the
successors and assigns of the original or any subsequent entity constituting the
Company as well as any and all divisions, subsidiaries, or affiliates, thereof.
18. WAIVER. The waiver by any party to this Agreement of a breach of any of
the provisions of this Agreement shall not operate or be construed as a waiver
of any subsequent or simultaneous breach.
19. APPLICABLE LAW. This Agreement shall be governed by, interpreted and
construed under the internal laws of the State of Florida without reference to
its conflict of laws principles.
20. HEADINGS AND CAPTIONS. The headings and captions use din this Agreement
are for convenience of reference only, and shall in no way define, limited
expand or otherwise affect the meaning or construction of any provisions of this
Agreement.
21. NOTICE. Any notice required or permitted to be given when delivered in
person or when deposited, properly addressed, in the United States mail, first
class, postage prepaid, return receipt requested.
22. GENDER. All pronouns or any variations thereof contained in this
Agreement refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and Consultant with respect to the subject mater of this
Agreement and supersedes any prior agreements by and between Company and
Consultant, or understandings between the Company and Consultant with respect to
such subject matter. No amendment or waiver of this Agreement or any provision
hereof shall be effective unless in writing signed by both of the parties.
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IN WITNESS WHEREOF, the Company and Consultant have caused this Agreement
to be executed, under seal, as of the date and year first above written.
COMPANY:
HOLIDAY RV SUPERSTORES, INC.,
a Florida corporation
By:
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Name: , President
[CORPORATE SEAL]
CONSULTANT:
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Witness: Name:
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Witness Printed Name
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Witness Printed Name
SCHEDULE OF OMITTED CONSULTING AGREEMENTS
Consulting Agreement dated June 22, 1999 by and among Xxxxxx X. Xxxxxxxx and
Holiday RV Superstores, Inc.
Consulting Agreement dated June 22, 1999 by and among Xxxxxx Xxxxxxxx and
Holiday RV Superstores, Inc.
