Exhibit
10.4


 


EXECUTION
COPY


 


EMPLOYMENT AGREEMENT


 


This
EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of May 14, 2004 by
and among Lazy Days’ R.V. Center, Inc., a Florida corporation (the “Company”),
RV Acquisition Inc., a Delaware corporation (“Buyer”), Charles L.
Thibault  (the “Executive”),
and Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited
partnership (“BRS”).  Capitalized
terms used but not otherwise defined herein shall have the meaning ascribed to
such terms in Section 7.


 


WHEREAS,
the Company and the Executive desire to enter into an agreement to provide for
the employment of the Executive as Chief Financial Officer  of the Company pursuant to the terms and
conditions set forth herein.


 


WHEREAS,
the execution and delivery of this Agreement by the Company and the Executive
are conditions to the purchase by Buyer of certain securities of LD Holdings,
Inc., a Delaware corporation (“Holdings”), pursuant to the Stock
Purchase Agreement by and among the Company, Buyer, Holdings, the Employee
Stock Ownership Plan and Trust for the Employees of Lazy Days and the other
stockholders of Holdings, dated as of April 27, 2004 (the “Stock
Purchase Agreement”).  Certain
provisions of this Agreement are intended for the benefit of, and will be enforceable
by, Buyer and BRS.


 


WHEREAS,
Buyer intends to grant Executive options (the “Options”) to acquire
common stock of the Buyer, par value $0.01 (the “Common Stock”).


 


WHEREAS,
Buyer owns, directly or indirectly, a majority of the issued and outstanding
shares of the Company.


 


NOW,
THEREFORE, in consideration of the mutual undertaking contained herein, the
parties hereto agree as follows:


 


1.               Employment.


 


(a)          Employment.  The Company agrees to employ
the Executive, and the Executive hereby accepts employment with the Company,
upon the terms and conditions set forth in this Agreement for the period
beginning on the date hereof and ending as provided in Section 1(d)
(the “Employment Period”).


 


(b)         Position and Duties.


 


(i)                                     The Executive agrees to serve as the Chief
Financial Officer of the Company, under the supervision and direction of the
President and Chief Executive Officer.


 


(ii)                                  The Executive shall devote his best efforts
and his full business time and attention (except for permitted vacation periods
and reasonable periods of


 

















 


illness
or other incapacity which does not constitute permanent disability) to the
business and affairs of the Company and its Subsidiaries.  The Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner.


 


(c)          Base Salary and Benefits.


 


(i)                                     During the Employment Period, Executive’s
base salary shall be $575,000  per
annum, as adjusted on each anniversary hereof to the amount that equals $575,000
increased by a percentage, the numerator of which is the Consumer Price Index
for Urban Wage Earners and Clerical Workers, as published by the Bureau of
Labor Statistics of the United States Department of Labor (the “CPI”),
as of such anniversary date, and the denominator of which is the CPI as of the
date hereof, provided, however, that the base salary shall not be
decreased pursuant to the terms of this Section 1(c)(i) (the “Base
Salary”), which Base Salary shall be payable in regular installments in
accordance with the Company’s general payroll practices.


 


(ii)                                  For each fiscal year during the Employment
Period, the Executive shall be eligible to receive a bonus of up to 80% of his
Base Salary (at achieving 115% of the appliable EBITDA performance target),
with the target bonus being 40% of his Base Salary (at achieving 85% of the
applicable EBITDA performance target), subject to the achievement of certain
EBITDA performance targets to be determined annually by the Board; provided, that for fiscal year 2004, the
EBITDA performance target shall be $44,700,000 (without taking into account any
management fees paid to BRS and any non-compete payments paid to Mr. Donald W.
Wallace).  There shall be no minimum
bonus.


 


(iii)                               In addition to the Base Salary and any
bonuses payable to the Executive pursuant to this Section 1(c),
Executive shall be entitled, during the Employment Period, to participate in
such pension, profit sharing, life insurance, disability insurance,
hospitalization, major medical and other employee benefit plans of the Company
(collectively, the “Benefits”). 
The Company shall also provide at its cost, as part of the Benefits,
equivalent hospitalization, major medical and other medical coverage for the
Executive’s wife and minor children to the extent that his wife and children
are eligible.  The Company shall also
reimburse the Executive for the premiums paid on the currently existing (or any
replacement policy(ies) the cost of which does not exceed the cost of the
existing policy(ies)) $2,000,000 face amount term life insurance policy(ies) on
the Executive’s life for the benefit of his designee and on the currently
existing (or any replacement policy(ies) the cost of which does not exceed the
cost of the existing policy(ies)) disability insurance on the Executive for his
benefit of a face amount of up to 70% of the sum that equals the Base Salary
plus the Executive’s most recent annual bonus, such reimbursement to also
include the amount necessary to compensate the Executive for any income taxes
on such reimbursement or additional income taxes.


 


(iv)                              The Company shall reimburse the Executive for
all reasonable expenses incurred by him during the Employment Period in the
course of performing his duties under this Agreement which are consistent with
the Company’s policies in effect


 


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from
time to time with respect to travel, entertainment and other business expenses,
subject to the Company’s requirements with respect to reporting and documentation
of such expenses.


 


(v)                                 Notwithstanding the provisions of paragraphs
(b)(i) through (iv) of this Section 1(c), upon the termination of
Executive’s employment for any reason other than Executive’s death, the Company
at its sole expense shall provide to Executive and his eligible dependents
continued coverage under the Company’s group health plans (as defined herein)
in the same amounts and on the same terms and conditions that applied while
Executive was employed by the Company. 
Such coverage shall continue until the earlier of Executive’s death or
the date that Executive is eligible to begin coverage under Medicare.  For purposes of this paragraph, the term
“Company’s group health plans” means the hospitalization, major medical, group
health, dental and vision plans in which Executive and his eligible dependents
are participating on the date Executive’s employment terminates and any
successor plans thereto.  The provisions
of this clause (v) of Section 1(c) shall survive the termination of
this Agreement.


 


(vi)                              The Executive shall be entitled to no fewer
than twenty-one (21) days’ vacation per annum, subject to the Company’s policy.


 


(vii)                           All amounts payable to the Executive as
compensation hereunder shall be subject to all required withholding by the Company.


 


(d)         Term.


 


(i)                                     The Employment Period shall end on the fifth
anniversary of the date hereof; provided,
however, that (A) the Employment
Period shall be terminated prior to such date upon (x) the Executive’s death or
Disability or (y) the Executive’s voluntary resignation for any reason and (B)
the Employment Period may be terminated prior to such date by the Company for
any reason.  Except as provided herein,
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to the Executive.


 


(ii)                                  If the Employment Period is terminated by the
Company for Cause or by reason of the Executive’s death or Disability or by the
Executive’s voluntary resignation other than within ninety (90) days of a Good Reason
Event, the Executive shall be entitled to all previously earned and accrued but
unpaid Base Salary and pro-rated bonus through the date of termination, but
shall not be entitled to any further Base Salary, bonus or Benefits for the
remainder of that year or any future year, or to any severance compensation of
any kind, nature or amount.


 


(iii)                               Subject to Section 1(d)(iv), if
the Employment Period is terminated by the Company other than pursuant to Section 1(d)(ii)
or by the Executive within ninety (90) days of a Good Reason Event, the
Executive shall be entitled to (A) all previously earned and accrued but unpaid
Base Salary and pro-rated bonus up to the date of such termination, (B) Base
Salary  for a period of twenty-four
(24) months (the “Severance Period”) and monthly bonus payments during
the Severance Period following the date of


 


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such
termination equal to one twelfth of the bonus that would have been payable to
the Executive for the fiscal year in which the Employment Period is terminated
(using the Board’s good faith estimate prior to such determination with a
mutually agreeable true-up mechanism at the time of such determination) and (C)
Benefits for the Severance Period; provided,
that the Executive shall not be entitled to any Base Salary, bonus or Benefits
after the termination of such Severance Period.


 


(iv)                              The Executive agrees that the Executive shall
be entitled to the payments provided for in Section 1(d)(iii) if
and only if the Executive has not breached, as of the date of termination of
the Employment Period, (A) the provisions of Sections 4, 5 and
6(b)(ii) hereof in any material respect, and (B) Section 6
(other than 6(b)(ii) hereof, and does not breach such provisions at any
time during the period for which such payments are to be made; provided, that with respect to any breach
of Section 5, Executive shall be given the opportunity to cure such
breach within 30 days; provided further,
that the Company’s obligation to make the payments provided for in Section 1(d)(iii)
will terminate upon the occurrence of any such breach or uncured breach, as
applicable, during such severance period.


 


(v)                                 Any payments pursuant to this Section 1(d)
shall be made in regular payroll payment installments in accordance with the
Company’s general payroll practices, and as of the date of the final such
payment, none of the Company or any of its Subsidiaries shall have any further
obligation to Executive pursuant to this Section 1(d) except as
provided by law.


 


(vi)                              The Executive hereby agrees that no severance
compensation of any kind, nature or amount shall be payable to the Executive
except as expressly set forth in this Section 1(d), and except for
such payments, the Executive hereby irrevocably waives any claim for severance
compensation.  The Executive further
agrees that the Executive shall be entitled to the payments provided for in
this Section 1(d), if any, if and only if the Executive has
executed, delivered and effectuated the Release attached to this Agreement as Exhibit
A and complies with its terms and those terms of this Agreement that
survive its expiration and the Company hereby agrees to simultaneously execute
and deliver such Release to the Executive.


 


2.               Repurchase Option.


 


(a)          In the event the Executive’s employment with the Company is terminated
(the “Termination”) for any reason, the Option Shares (whether held by
the Executive or one or more of the Executive’s transferees) will be subject to
repurchase by Buyer and BRS (or its designee) pursuant to the terms and
conditions set forth in this Section 2 (the “Repurchase Option”);
provided, that such repurchase
shall, in the event the Termination is by reason of (i) the Executive deciding
to retire on or after the fifth anniversary of the date hereof, of which
decision the Executive shall have delivered a notice in writing signed by the
Executive to the Company, (ii) the Executive’s death, or (iii) the Executive’s
Disability, be subject to the Executive’s or his estate’s, as applicable,
consent.


 


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(b)         Subject to the following sentence, the purchase price for each of the
Option Shares will be the Fair Value for such share.  In the event the Termination is by the Company for Cause or,
prior to the fifth year anniversary of the date hereof, as a result of the
Executive’s voluntary resignation other than within ninety (90) days of a Good
Reason Event, the purchase price for each of the Option Shares shall be the
lower of (x) the Original Cost of such share and (y) the Fair Value for such
share; provided, that,
notwithstanding anything to the contrary in this Agreement, if BRS (A)
purchases any Option Share pursuant to this Section 2 at the
Original Cost of such share, and (B) continues to hold such share in excess of
365 days, then BRS shall (I) transfer such share to either the Buyer or one or
more employees of the Company, and (II) not receive any consideration in such
transfer that exceeds the Original Cost in such share.


 


(c)          Buyer may elect to purchase all or any of the Option Shares by
delivering written notice (the “Repurchase Notice”) to the holder or
holders of the Option Shares within two hundred forty (240) days after the
Termination.  The Repurchase Notice will
set forth the number of the Option Shares to be acquired from each holder, the
aggregate consideration to be paid for such securities and the time and place
for the closing of such transaction. 
The number of shares to be repurchased by Buyer shall first be satisfied
to the extent possible from the Option Shares held by the Executive at the time
of delivery of the Repurchase Notice. 
If the number of the Option Shares then held by the Executive is less
than the total number of the Option Shares Buyer has elected to purchase, Buyer
shall purchase the remaining Option Shares elected to be purchased from the
other holder(s) of Option Shares under this Agreement, pro rata according to
the number of the Option Shares held by such other holder(s) at the time of
delivery of such Repurchase Notice (determined as nearly as practicable to the
nearest share).


 


(d)         If for any reason Buyer does not elect to purchase all of the Option
Shares pursuant to the Repurchase Option, BRS (or its designee) shall be
entitled to exercise the Repurchase Option for all or any of the Option Shares
that Buyer has not elected to purchase (the “Available Shares”).  As soon as practicable after Buyer has
determined that there will be Available Shares but in any event within one
hundred eighty (180) days after the Termination, the Company shall give written
notice (the “Option Notice”) to BRS (or its designee) setting forth the
number of any Available Shares and the purchase price for such Available
Shares.  BRS (or its designee) may elect
to purchase all or a portion of the Available Shares by giving written notice
to the Company within 30 days after the Option Notice has been given by
Buyer.  As soon as practicable, and in
any event within ten days after the expiration of the 30-day period set forth
above, the Buyer shall notify the Executive as to the number of Available
Shares being purchased from the Executive by BRS (or its designee) (the “Supplemental
Repurchase Notice”).  At the time
Buyer delivers the Supplemental Repurchase Notice to the Executive, Buyer shall
also deliver a written notice to BRS (or its designee) setting forth the number
of Available Shares which BRS (or its designee) is entitled to purchase, the
aggregate purchase price and the time and place of the closing of such
transaction.


 


(e)          The closing of the purchase of the Option Shares pursuant to the
Repurchase Option shall take place on the date designated by Buyer in the
Repurchase Notice or Supplemental Repurchase Notice, which date shall not be
later than the 60th day after the delivery of the later of such notices to be
delivered (or, if later, the 15th day after the Fair Value is finally
determined) nor earlier than the fifth day after such delivery.  Buyer and/or BRS (or its designee) will pay
for the Option Shares to be purchased pursuant to the Repurchase Option by


 


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delivery
of a certified or cashier’s check or wire transfer of funds.  The purchasers of the Option Shares
hereunder will be entitled to receive customary representations and warranties
from the sellers as to title, authority and capacity to sell and to require all
sellers’ signatures to be guaranteed.


 


(f)            Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of the Option Shares by Buyer
and/or BRS shall be subject to applicable restrictions contained in the
Delaware General Corporation Law and in Buyer’s, the Company’s and its
Subsidiaries’ debt and equity financing agreements that are in effect as of the
date of the closing of such repurchases.


 


3.               Restrictions on Transfer.


 


(a)          The certificates representing the Option Shares will bear the following
legend:


 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM REGISTRATION THEREUNDER. 
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN
OTHER AGREEMENTS SET FORTH IN AN EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND
THE SIGNATORY THERETO DATED AS OF MAY 14, 2004 AND A STOCKHOLDERS AGREEMENT
AMONG THE COMPANY AND CERTAIN OTHER PARTIES THERETO DATED AS OF MAY 14, 2004.  A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY
THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.”


 


(b)         The Option Shares are subject to the restrictions on transfer set forth
in the Stockholders Agreement.


 


4.               Confidential Information.  The
Executive acknowledges that the information obtained by the Executive while
employed by the Company, its Subsidiaries or any other affiliated entity
concerning the business or affairs of the Company, its Subsidiaries or other
affiliated entity (“Confidential Information”) are the property of the
Company or such Subsidiary.  Therefore,
the Executive agrees that he shall not use for or disclose to any unauthorized
person or use for his own purpose any Confidential Information unless (i) such
Confidential Information becomes generally  known
to and available for use by the public other than as a result of the
Executive’s acts or omissions to act; (ii) such Confidential Information is
rightfully received by the Executive from a party who was not subject to any
obligations of confidentiality; or (iii) the Executive is required by order of
a court of competent jurisdiction (by


 


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subpoena
or similar process) to disclose or discuss any Confidential Information; provided, that in such case, the Executive
shall promptly inform the Company of such order, shall cooperate with any
reasonable effort by the Company to obtain a protective order or to otherwise
restrict such disclosure, and shall only disclose Confidential Information to
the minimum extent necessary to comply with any such court order.  If in the absence of a protective order or
the receipt of a waiver hereunder, the Executive, on the advice of counsel, is
compelled to disclose any Confidential Information to any tribunal or else
stand liable for contempt, the Executive shall promptly inform the Company of
such obligation, shall cooperate with any reasonable effort by the Company to
obtain a protective order or to otherwise restrict such disclosure, and shall
only disclose Confidential Information to the minimum extent necessary to
comply with any such obligation.  The
Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) relating to the Confidential Information, Work
Product (as defined below) and the business of the Company or any Subsidiary
which he may then possess or have under his control.


 


5.               Inventions and Patents.  The
Executive agrees that all inventions, innovations, improvements, developments,
methods, designs, analyses, drawings, reports, and all similar or related
information which relates to the Company’s or any of its Subsidiaries’ actual
or anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by the
Executive while employed by the Company or any of its Subsidiaries (“Work
Product”) belong to the Company or such Subsidiary.  The Executive will promptly disclose such
Work Product to the Board and perform all actions reasonably requested by the
Board (whether during or after the Employment Period) to establish and confirm
such ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).


 


6.               Noncompete, Nonsolicitation.


 


(a)          The Executive acknowledges that in the course of his employment with
the Company and its Subsidiaries he has become familiar, and he will become
familiar, with the Company’s and its Subsidiaries’ trade secrets and with other
Confidential Information and that his services have been and will be of
special, unique and extraordinary value to the Company and its
Subsidiaries.  Therefore, the Executive
agrees that, from the date hereof until the second anniversary of the
termination of the Executive’s employment with the Company for any reason, (the
“Noncompete Period”), he shall not shall not directly or indirectly own,
manage, control, participate in, consult with, render services for, or in any
manner engage in any business (including by himself or through any other
entity) competing with the businesses of the Company or its Subsidiaries in The
United States of America, Canada or The United States of Mexico (the “Territory”)
as such businesses exist or are in process on the date of the termination of
the Executive’s employment with the Company. 
Nothing herein shall prohibit the Executive from being a passive owner
of not more than 5% of the outstanding stock of a corporation which is publicly
traded, so long as the Executive has no active participation in the business of
such corporation.


 


(b)         During the Noncompete Period, the Executive shall not directly or indirectly
through another entity (i) influence or attempt to influence any of the
customers of the Company


 


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or
its Subsidiaries to divert their business or patronage from the Company or its
Subsidiaries to any other person or company engaged in a similar business, (ii)
disclose to any person or entity the names, addresses, or requirements of, or
other confidential information or trade secrets relating to any customers of
the Company or its Subsidiaries, the prices charged to such customers or the
practices used in servicing such customers (other than in the course of the
Executive’s employment and consistent with his duties as the Chief Financial
Officer), (iii) make any statement or do any act intended to cause existing or
potential customers of the Company or its Subsidiaries to make use of the
services or purchase the products of any competitive business, (iv) hire or
attempt to hire any person who was employed by the Company or its Subsidiaries
for any type of employment one hundred eighty days prior to the date of
Termination, (v) induce or attempt to induce any employee of the Company or its
Subsidiaries to leave his or her employ or in any way interfere with the
relationship between the Company or its Subsidiaries and any of their
employees, or (vi) in any way interfere with relationship between the Company
or any of its Subsidiaries with any of their suppliers.


 


(c)          The parties hereto acknowledge and agree that the Company will suffer
irreparable harm from a breach by the Executive of any of the covenants or
agreements contained in Sections 4, 5 and 6.  The
Executive further acknowledges that the restrictive covenants set forth in Sections
4, 5 and 6 are of a special, unique, unusual and
extraordinary character, the loss of which cannot be adequately compensated by
damages.  The Executive agrees that the
periods of restriction and geographic area of restriction imposed by the
provisions of Sections 4, 5 and 6 are fair and reasonable
and are reasonably required for the protection of the Company in whose favor
such restrictions operate.  The Company
acknowledges that, but for the Executive’s agreements to be bound the
restrictive covenants set forth in Sections 4, 5 and 6,
the Company would not have entered into this Agreement.  The restrictive covenants set forth herein
supersede any restrictive covenants with respect to the subject matters
addressed by the restrictive covenants set forth in Sections 4, 5
and 6 set forth in any current agreement between the Executive and the
Company.  The Executive agrees that the
Company has a legitimate business interest to protect justifying the
restrictive covenants set forth in Sections 4, 5 and 6.  Such legitimate business interests
include:  (i) trade secrets, as defined
in Florida Statute 688.002(4), (ii) valuable confidential business
information that does not otherwise qualify as a trade secret, (iii)
substantial relationships with prospective or existing customers, and (iv)
customer goodwill.  In the event of an
alleged or threatened breach by the Executive of any of the provisions of this Sections
4, 5 and 6, the Company or its successor or assign may, in
addition to all other rights and remedies existing in its or their favor, apply
to any court of competent jurisdiction for specific performance and/or
injunctive or other equitable relief (without posting a bond or other security)
in order to enforce or prevent any violations of the provisions hereof
(including, without limitation, the extension of the Noncompete Period by a
period equal to the duration of the violation of Sections 4, 5
and 6).  In the event of an
alleged breach or violation by the Executive of any of the provisions of Sections
4, 5 and 6, the Noncompete Period shall be tolled until such
alleged breach or violation is resolved.


 


(d)         The Executive and the Company intends that the covenants of Section 6(a)
shall be deemed to be a series of separate covenants, one for each month of
the Noncompete Period.  Additionally,
the Executive and the Company intend that the covenants of Section 6(a)
shall be deemed to be a series of separate covenants, are for each county or
province of each and every state, territory or jurisdiction within the
Territory and one for each month of the 


 


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Noncompete
Period.  If, at the time enforcement is
sought of any of the provisions of Sections 4, 5 and 6, a
court of competent jurisdiction holds that the restrictions stated herein are
unreasonable under the circumstances then existing, the parties hereto agree  that the maximum  period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area.


 


(e)          The existence of any claims or cause of action of the Executive against
the Company, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the restrictive
covenants set forth in Sections 4, 5, and 6.  The refusal or failure of the Company to
enforce any of the restrictive covenants set forth in Sections 4, 5,
and 6 against the Executive, for any reason, shall not constitute an act
of precedent or a defense to the enforcement by the Company of the restrictive
covenants set forth herein, nor shall it give rise to any claim or cause of
action by the Executive against the Company. 
If any action should have to be brought by the Company against the
Executive to enforce the provisions of Sections 4, 5, and 6,
the Executive recognizes, acknowledges and agrees that the Company is entitled
to all of the civil remedies provided Sections 542.335, 688.003, and 812.035, Florida
Statutes, including without limitation (i) preliminary and permanent
injunctive relief restraining the Executive from unauthorized disclosure or use
of any trade secret or confidential information, in whole or in part, or
otherwise violating any of the restrictive covenants set forth in Sections 4,
5, and 6, (ii) actual damages, (iii) attorney’s fees in trial and
appellate courts, and (iv) costs and expenses of investigation and litigation,
including expert fees and other costs and expenses.  Nothing in this Agreement shall be construed as prohibiting the
Company from pursuing any other legal or equity remedies available for breach
or threatened breach to the provisions of Sections 4, 5, and 6,
which may otherwise be available.  The
Executive expressly acknowledges that the restrictive covenants set forth in Sections
4, 5, and 6 apply to any successor or permitted assign of the
Company as direct third-party beneficiary and that such restrictive covenants
are expressly intended for the benefit of such successor and assign.


 


(f)            Each of the Executive and the Company agrees
that the covenants made in Sections 6(a) and 6(b) shall be
construed as an agreement independent of any other provision of this Agreement
and shall survive any order of a court of competent jurisdiction terminating
any other provision of this Agreement.


 


7.               Definitions.  As
used herein, the following terms shall have the following meanings:


 


“Board”
means the board of directors of the Company.


 


“Cause”
means that by action of a majority of the members of the Board at a meeting
duly called and held upon 30 days’ prior written notice (provided that less
than 30 days’ notice may be given with respect to the occurrence of an event
set forth in clause (v) below), or with respect to the occurrence of any event
the nature of which makes it impossible for the Executive to cure) to the
Executive specifying the particulars of the action or inaction alleged to
constitute “Cause” (and at which meeting the Executive and his counsel are
entitled to be present and given reasonable opportunity to be heard), the Board
has terminated Executive’s employment because of: (i) The Executive’s gross and
continued inattention to, gross and continued neglect of, gross and continued
inability to materially perform, or gross and continued 


 


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failure
to materially perform (other than any such inability or failure resulting from
incapacity due to mental or physical illness) the duties to be performed by him
under this Agreement as reasonably directed by the President and Chief
Executive Officer, or material and continued breach of this Agreement, and the
Executive’s failure prior to the expiration of the notice period to have
effected or taken reasonable steps to effect a cure thereof in all material
respects, it being understood that a breach of Section 6 (other
than 6(b)(ii) shall be deemed to be a material breach; (ii) the appropriation
(or attempted appropriation) of a business opportunity of the Company or any of
its Subsidiaries, including securing any personal profit in connection with any
transaction entered into on behalf of the Company or any of its Subsidiaries
(other than the benefits or profits provided for in the Stock Purchase
Agreement (including, without limitation, agreements referred to in
Schedule 3.24 to the Stock Purchase Agreement) or executed in connection
with the closing under the Stock Purchase Agreement; (iii) the Executive’s
willful misconduct (including, without limitation, dishonesty or disloyalty),
unless such misconduct is not seriously injurious to the business of the
Company or any of its Subsidiaries, or BRS or Buyer; (iv) fraud with respect to
BRS, Buyer, the Company, any of its Subsidiaries or any of their respective
customers or suppliers (including, without limitation, the intentional
misappropriation (or attempted intentional misappropriation) of any material
amount of BRS’, Buyer’s, the Company’s, any of its Subsidiaries’ or any of
their respective customers’ or suppliers’ funds or property); or (v) the
conviction of or the entering of a guilty plea or plea of no contest with
respect to any non-traffic related offense that is a felony.


 


“Disability”
means the inability, by reason of bodily injury or physical or mental disease,
or any combination thereof, of Executive to perform his customary or other
comparable duties with the Company for a period of at least one hundred twenty
(120) consecutive days, or one hundred eighty (180) days in any three hundred
sixty-five (365) day period, as determined in accordance with the Company’s
Long-Term Disability Plan.


 


“Fair
Value” means for each share of Common Stock, the average of the closing
prices of the sales of the Common Stock on all securities exchanges on which
the Common Stock may at the time be listed, or, if there have been no sales on
any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day the
Common Stock is not so listed, the average of the representative bid and asked
prices quoted in the Nasdaq National Market System (“Nasdaq NMS”) as of
4:00 P.M., New York City time, or, if on any day the Common Stock is not quoted
in the Nasdaq NMS, the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
the Fair Value is being determined and the 20 consecutive business days prior
to such day.  If at any time the Common
Stock is not listed on any securities exchange or quoted in the Nasdaq NMS or
the over-the-counter market, the Fair Value of each share of Common Stock shall
be determined by the board of directors of Buyer in its good faith judgment
without the application of any minority stockholder discount or discount for
marketability of such share.


 


“Good
Reason Event” means, during the Employment Period, (i) the assignment to
the Executive without his consent of any duties substantially inconsistent with
Executive’s position, duties, responsibilities or status with the Company or, without
cause, the removal without Executive’s consent of Executive’s authority or
position at the Company in


 


10

















 


Section 1(b)(i), which action is not cured within 30 days
from the date of delivery of a written notice by Executive to the Company,
specifying the grounds for Executive’s termination of this Agreement; (ii) the
Company changes the Executive’s place of employment by more than 10 miles;
(iii) any transaction involving the Company, including in one or more series of
related transactions, as a result of which (A) any Unaffiliated Third Party or
group of Unaffiliated Third Parties acquires more than 50% of the voting
securities outstanding on a fully diluted basis at the time of such transaction
(whether by merger, consolidation, sale or transfer of any or all of the
Company’s outstanding capital stock), and (B) the sum of (I) the value of the
equity securities owned by BRS and its affiliates immediately following such
transaction, plus (II) the amounts of proceeds received by BRS and its
affiliates in such transaction is at least $40 million; (iv) the failure of any
successor to the Company not otherwise bound by this Agreement to expressly
assume and agree to perform the obligations of the Company under this
Agreement; or (v) a material breach by the Company, Buyer or BRS of the terms
for the benefit of the Executive of this Agreement that is not cured by the
Company, Buyer or BRS within 60 days of written notice from the Executive to
the Company, Buyer and BRS that expressly refers to this Agreement and this
definition of Good Reason Event.


 


“Option
Shares” means (i) any Common Stock issued or issuable directly or
indirectly upon exercise of any Option and (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.


 


“Original
Cost” with respect to one of the Option Shares means the amount for which
the Executive acquired such share or any capital stock exchanged for/converted
into such share.


 


“Person”
means an individual, a partnership, a corporation, an association, a joint
stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.


 


“Securities
Act” means the Securities Act of 1933, as amended from time to time.


 


“Stockholders
Agreement” means the Stockholders Agreement, dated as of the date hereof,
by and among Buyer, BRS, the Executive and others, as in effect from time to
time.


 


“Subsidiary”
means, with respect to any Person, any corporation, partnership, association or
other business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, limited liability company, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination
thereof.  For purposes hereof, a Person
or Persons shall be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons shall be allocated a majority of partnership,


 


11

















 


limited
liability company, association or other business entity gains or losses or
shall be or control the managing director or general partner of such
partnership, limited liability company, association or other business entity.


 


“Unaffiliated
Third Party” means any Person who, immediately prior to a contemplated
transaction, does not own in excess of 5% of the Company’s voting securities on
a fully diluted basis (a “5% Owner”), who is not controlling, controlled
by or under common control with any such 5% Owner and who is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust of the
benefit of such 5% Owner and/or such other Persons.


 


8.               Notices.  All notices, demands or other
communications to be given or delivered under or by reason of the provisions of
this Agreement will be in writing and will be deemed to have been given when
delivered personally, mailed by certified or registered mail, return receipt
requested and postage prepaid, or sent via a nationally recognized overnight
courier, or sent via facsimile to the recipient (followed by telephone
confirmation to the receiving party). 
Such notices, demands and other communications will be sent to the
address indicated below:


 


To the Company:


 


Lazy
Days’ R.V. Center, Inc.

6130 Lazy Days Boulevard

Seffner, Florida 33584

Attention:  Chief Operating Officer

Facsimile:  (813) 246-5240


 


With a copy, which shall not constitute notice to the Company, to:


 


Kirkland
& Ellis LLP

Citigroup Center

153 East 53rd Street

New York, NY 10022-4675

Attention:  Kimberly P. Taylor, Esq.

Facsimile:  (212) 446-4900


 


To the Executive:


 


Charles
L. Thibault


c/o
Lazy Days' R.V. Center, Inc.


6130
Lazy Days Blvd.


Seffner,
FL 33584


To BRS:


 


c/o
Bruckmann, Rosser, Sherrill & Co., Inc.


126
East 56th Street


New
York, NY 10022


Facsimile:
(212) 521-3799


Attention:  Thomas J. Baldwin


 


12

















 


With a copy, which shall not constitute notice to BRS, to:


 


Kirkland
& Ellis LLP

Citigroup Center

153 East 53rd Street

New York, NY 10022-4675

Attention:  Kimberly P. Taylor, Esq.

Facsimile:  (212) 446-4900


 


or
such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.


 


9.               Miscellaneous.


 


(a)          Survival.  Sections 4, 5
and 6 of this Agreement survive and continue in full force in accordance
with its terms notwithstanding the expiration or termination of the Employment
Period.


 


(b)         Severability. 
Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


(c)          Complete Agreement. 
This Agreement embodies the complete agreement and understanding among
the parties and supersedes and preempts any and all prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way, including without
limitation the Employment Agreement between the Company and the Executive dated
July 15, 1999, and all amendments thereto.  The Executive agrees that the Executive has no remaining rights,
obligations or entitlements under any previous agreement with the Company with
respect to the subject matter hereof.


 


(d)         Counterparts. 
This Agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.


 


(e)          Successors and Assigns. 
Except as otherwise provided herein, this Agreement shall bind and inure
to the benefit of and be enforceable by the Executive, the Company, Buyer, BRS
and their respective successors and assigns (including subsequent holders of
the Option Shares); provided,
that the rights and obligations of the Executive under this Agreement shall not
be assignable except in connection with a permitted transfer of the Option
Shares hereunder; provided further,
that the rights and obligations of the Company under this Agreement shall not
be assignable except to a purchaser of all or substantially all of the assets
of the Company (provided, that
such purchaser explicitly assumes all of the Company’s obligations under this
Agreement); provided further,
that the rights and obligations of Buyer and BRS under this Agreement shall not
be assignable except (i) to affiliates of Buyer or BRS, or (ii) to any


 


13

















 


purchaser,
directly or indirectly, of (A) more than 50% of the voting securities of Buyer
or the Company (whether by merger, consolidation, sale or transfer of any or
all of Buyer’s or the Company’s outstanding capital stock), or (B) all or
substantially all of the assets of the Company.


 


(f)            Governing Law.  The
corporate law of the State of Delaware will govern all questions concerning the
relative rights of Buyer and its stockholders. 
All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibit hereto will be governed by and
construed in accordance with the domestic laws of the State of Florida, without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Florida or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Florida.


 


(g)         Remedies.  Each of the parties to this
Agreement (including Executive, Buyer and BRS) will be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs
(including reasonable attorneys’ fees) caused by any breach of any provision of
this Agreement and to exercise all other rights existing in its favor.  The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.


 


(h)         Executive’s Cooperation. 
During the Employment Period and thereafter, Executive shall cooperate
with the Company and its Subsidiaries in any internal investigation or
administrative, regulatory or judicial proceeding as reasonably requested by
the Company (including, without limitation, Executive being available to the
Company upon reasonable notice for interviews and factual investigations,
appearing at the Company’s request to give testimony without requiring service
of a subpoena or other legal process, volunteering to the Company all pertinent
information and turning over to the Company all relevant documents which are or
may come into Executive’s possession, all at times and on schedules that are
reasonably consistent with Executive’s other permitted activities and
commitments); provided, that the
Company shall reimburse Executive for all of his reasonable costs and expenses
incurred, in connection herewith, plus, after the Employment Period, pay
Executive $2,500 per day for  his
time spent.


 


(i)             Amendment and Waiver.  The
provisions of this Agreement may be amended and waived only with the prior
written consent of the Company, the Executive, Buyer and BRS.


 


*   *   *  
*   *


 


14

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the date first written above.


 


	
   

  	
  LAZY
  DAYS’ R.V. CENTER, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald W. Wallace

  	
   

  
	
   

  	
   

  	
  Name:
  Donald W. Wallace

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Charles L. Thibault

  	
   

  
	
   

  	
   

  	
  Charles
  L. Thibault

  



 


 


	
  Agreed
  and Accepted

  	
   

  
	
  as
  of the date first above written:

  	
   

  
	
   

  	
   

  
	
  RV
  ACQUISITION INC. a Delaware corporation

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  John Horton

  	
   

  	
   

  
	
   

  	
  Name:
  John Horton

  	
   

  
	
   

  	
  Title:
  Chief Operating Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BRUCKMANN,
  ROSSER, SHERRILL & CO. II, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  BRSE,
  L.L.C.

  	
   

  
	
  Its:

  	
  General
  Partner

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Tom Baldwin

  	
   

  	
   

  
	
   

  	
  Name:
  Tom Baldwin

  	
   

  
	
   

  	
  Title:
  Managing Director

  	
   

  



 


 


[Signature Page to Charles L. Thibault’s
Employment Agreement]


 

















 


Exhibit A


 


RELEASE AND NON-DISPARAGEMENT AGREEMENT


 


I,
Charles L. Thibault (“Executive”); in consideration of and subject to the
performance by Lazy Days R.V. Center, Inc., a Florida corporation (together
with its subsidiaries, the “Company”), of its material obligations under
the Employment Agreement, dated as of May 14, 2004 (the “Employment
Agreement”), do hereby release and forever discharge as of the date hereof
the Company and all present and former directors, officers, executives,
employees, attorneys, agents, representatives, executives, successors and
assigns of the Company and its direct or indirect owners, parents, affiliates
and subsidiaries (and their directors, officers, executives, employees,
attorneys, agents, representatives and executives) (collectively, the “Released
Parties”) to the extent provided below.


 


(1)                                                                                                                                Except as provided in paragraph 2 below, I
knowingly and voluntarily release and forever discharge the Released Parties
from any and all claims, controversies, actions, causes of action,
cross-claims, counter-claims, demands, debts, compensatory damages, liquidated
damages, punitive or exemplary damages, other damages, claims for costs and
attorneys’ fees, or liabilities of any nature whatsoever in law and in equity,
both past and present (through the date hereof) and whether known or unknown,
suspected, or claimed against any of the Released Parties which I, or any of my
heirs, executors, administrators or assigns, may have, which arise out of or
are connected with my engagement by, employment with or separation from the
Company (including, but not limited to, any allegation, claim or violation,
arising under:  Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the
Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993;
the Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of 1974; any
applicable Executive Order Programs; the Fair Labor Standards Act; or their
state or local counterparts; or under any other federal, state or local civil
or human rights law, or under any other local, state, or federal law,
regulation or ordinance; or under any public policy, contract or tort, or under
common law; or arising under any policies, practices or procedures of the
Company; or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys’ fees incurred in these matters) (all of the
foregoing collectively referred to herein as the “Claims”).


 


(2)                                                                                                                                I understand and agree that this Release does
not waive or release any rights or claims which arise after the date I execute
this Release; claims for enforcement of Section 1(d) of the
Employment Agreement; claims for benefits under any employee benefit plan
maintained by the Company; or claims for unemployment or worker’s compensation
as provided by law.


 

















 


(3)                                                                                                                                I acknowledge and intend that this Release
shall be effective as a bar and shall serve as a complete defense to each and
every one of the Claims and that it shall be given full force and effect
according to each and all of its express terms and provisions, including those
relating to unknown and unsuspected Claims (notwithstanding any state statute
that expressly limits the effectiveness of a release of unknown, unsuspected
and unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied.


 


(4)                                                                                                                                I represent that I have not made any assignment
or transfer of any Claim.  I agree that
neither this Release, nor the furnishing of the consideration for this Release,
shall be deemed or construed at any time to be an admission by the Company or
any Released Party of any improper or unlawful conduct.  I agree that this Release is confidential
and agree not to disclose any information regarding the terms of this Release,
except to my immediate family and any tax, legal or other counsel with whom I
may consult regarding the meaning or effect hereof or as required by law, and I
will instruct each of the foregoing not to disclose the same to anyone.


 


(5)                                                                                                                                Each provision of this Release shall be
interpreted in such manner as to be effective and valid under applicable law
and any provision of this Release held to be invalid, illegal or unenforceable
in any respect shall be severable.  This
Release cannot be amended except in a writing duly executed by the Company and
me.


 


(6)                                                                                                                                The Company (meaning, solely for this
purpose, the Company’s directors and executive officers) will not, and will use
its commercially reasonable efforts to cause the other Released Parties to not,
disparage Executive or Executive’s performance or otherwise take any action
which could reasonably be expected to adversely affect Executive’s personal or
professional reputation.  Similarly,
Executive will not disparage the Released Parties or otherwise take any action
which could reasonably be expected to adversely affect the personal or
professional reputation of the Released Parties.


 


(7)                                                                                                                                The Company does hereby release and forever
discharge as of the date hereof the Executive and his personal representatives
and heirs, with respect to any action or omission by the Executive made in his
capacity as employee and officer (and not in any other capacity) which action
or omission took place prior to the date hereof; provided that this release shall not be applicable to (i)
such actions or omissions that represent willful misconduct or fraud other than
any action or omission that was specifically approved by the applicable board
of directors, (ii) any rights or claims which arise after the date hereof, and
(iii) claims for enforcement of the Employment Agreement.


 


(8)                                                                                                                                I acknowledge that I have entered into this
Agreement freely and without coercion, that I have been advised by the Company
to consult with counsel of my choice, that I have had adequate opportunity to
so consult,


 

















 


and
that I have been given all time periods required by law to consider this
Agreement, including but not limited to the 21-day period required by the Age
Discrimination in Employment Act of 1967, as amended.  I further acknowledge that within the 7-day period following my
execution of this Agreement (the “Revocation Period”) I shall have the
unilateral right to revoke this Agreement. 
In order to be effective, notice of Executive’s revocation of this
Agreement must be received by the Company on or before the last day of the
Revocation Period.


 


I
UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL
THE REVOCATION PERIOD HAS EXPIRED;


 


	
   

  	
  LAZY
  DAYS’ R.V. CENTER, INC. a Florida corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald W. Wallace

  	
   

  
	
   

  	
   

  	
  Name:
  Donald W. Wallace

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  /s/ Charles L. Thibault

  	
   

  
	
   

  	
  Charles
  L. Thibault