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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into
as of March 27, 1998 by and between Xxxxxxx Xxxxxx ("EXECUTIVE") and GLOBAL
VACATION GROUP, INC., d/b/a Allied Tours, a New York corporation (formerly
Allied Bus Corp.) ("EMPLOYER"), with reference to the following facts:
A. Employer, Xxxxxx Equity Investors III, L.P. ("XXXXXX"), Allied
Tours Holdings Corp. ("ALLIED PARENT") and the existing shareholders of Allied
Parent (collectively, the "SELLERS"), have entered into a Recapitalization
Agreement dated as of March 18, 1998 (the "ACQUISITION AGREEMENT") pursuant to
which Xxxxxx will acquire from Allied Parent a majority of the capital stock of
Employer (the "ACQUISITION").
B. Prior to and following the consummation of the Acquisition,
Executive is a shareholder of Employer.
X. Xxxxxx recognizes that Executive's management services have
contributed to the goodwill inherent in Employer's business, which goodwill
constitutes a substantial asset of Employer.
X. Xxxxxx has required Executive to enter into this Employment
Agreement as a condition precedent to Xxxxxx'x consummation of the Acquisition.
E. Executive and Employer desire to enter into an agreement to set
forth the terms and conditions of Executive's employment with Employer.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.. For purposes of this Agreement, the following
terms, including both the singular and the plural and whether or not
capitalized, shall have the meanings assigned to them below, as follows:
(a) "AFFILIATE" means with respect to any Person, any other
Person which directly or indirectly controls, is controlled or is under common
control with such Person.
(b) "BUSINESS" means the business of Employer including,
without limitation, the business of engaging in the wholesale travel services
business.
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(c) "CLOSING DATE". has the meaning ascribed to such term in
the Acquisition Agreement.
(d) "COMPETITIVE ACTIVITY" means any business or activity of
Executive or any third party. that is the same as the Business or competitive
with the Business.
(e) "CONFIDENTIAL INFORMATION" means all confidential
information and trade secrets of Employer and its Affiliates including, without
limitation, the following: the identity, written lists, or descriptions of any
customers, referral sources or Organizations; financial statements, cost
reports, or other financial information; contract proposals or bidding
information; business plans; training and operations methods and manuals;
personnel records; fee structures; and management systems, policies or
procedures, including related forms and manuals. "Confidential Information"
shall not include any information or knowledge which: (a) is in the public
domain other than by Executive's breach of this Agreement; (b) is disclosed to
Executive lawfully by a third party who is not under any obligation of
confidentiality; or (c) is now or hereafter becomes generally known in the
industry of Employer.
(f) "NONCOMPETE PERIOD" means the period beginning on the
Closing Date and ending on the later of (i) the first anniversary of the date of
the termination of Executive's employment under any provision of Section 7 or
(ii) the fourth anniversary of the Closing Date of the Acquisition Agreement.
(g) "ORGANIZATION" means any organization that has contracted
with Employer for the performance of services in connection with the Business.
(h) "PERSON" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government body..
(i) "PURCHASER" means any individual or entity that purchases
all or substantially all the shares of capital stock or assets of Employer, or
any entity with which Employer merges.
(j) "TRADE AREA" means the United States of America.
2. EMPLOYMENT. Employer hereby employs Executive and Executive
hereby accepts such employment by Employer on the terms and conditions set forth
in this Agreement.
3. TERM. The term of this Agreement (the "TERM") shall commence on
the Closing Date of the Acquisition Agreement and shall continue until the
fourth anniversary of the date hereof, unless sooner terminated as provided for
herein; provided, however, that this Agreement shall automatically renew for
additional one year periods (each a "RENEWAL TERM") on the fourth anniversary of
the date hereof and on each additional anniversary thereafter unless either
Employer or Executive provides the other with written notice of termination at
least sixty
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(60) days prior to the expiration of the Term or any Renewal Term. Either
Executive or Employer may terminate this Agreement with or without Cause as
provided in Section 7 below. Upon termination of Executive's employment with
Employer pursuant to the terms contained in this Agreement, Employer shall have
no further liability to Executive with respect to this Agreement except for
compensation, fringe benefits and perquisites accrued and unpaid on the date of
such termination and except as otherwise specifically set forth herein. Upon
termination of this Agreement by Executive pursuant to the terms contained in
this Agreement, Executive shall have no further liability to Employer with
respect to this Agreement except for the covenants of the Executive contained in
Sections 8 and 9 herein which survive the term of this Agreement and except as
specifically set forth herein.
4. POSITION, DUTIES AND PLACE OF PERFORMANCE.. Executive agrees to
serve as a Senior Vice President of Employer and as Co-President and Co-Chief
Operating Officer at the Allied Tours division of Employer or in such other
capacities on behalf of Employer or its Affiliates of reasonably similar levels
and duties as designated by Employer's Board of Directors ("BOARD") or
Employer's Chief Executive Officer or Chief Operating Officer. Subject to
periodic travel, Executive's principal location for business shall be New York
City, New York. Executive shall perform those duties, if so requested, which are
consistent with such positions.
5. TIME AND EFFORTS DEVOTED.. Executive shall devote all of his
business time, energy, best efforts and attention to the business and affairs of
Employer and shall not engage, directly or indirectly, in any other business or
businesses without the consent of Employer. Notwithstanding the foregoing,
Executive shall have the right to engage in passive investment activities
subject to the limitations of Section 9 hereof.
6. COMPENSATION; BENEFITS AND PERQUISITES..
(a) COMPENSATION. For all services rendered by Executive
during the Term, Employer shall pay Executive a base salary of $250,000 per
annum ($20,833.33 per month), payable in equal installments and regular
intervals at least monthly; provided, however, that such base salary shall be
increased as may be mutually agreed by Employer and Executive in writing from
time to time during the Term (the "BASE SALARY").
(b) BENEFITS AND PERQUISITES. Executive shall be entitled to
the following benefits and perquisites and such other benefits as may be
mutually agreed by Employer and Executive in writing from time to time during
the Term: (i) payment of Executive's reasonable travel and other business
expenses in accordance with Employer's policies applicable to all senior
executives of Employer, provided that Executive properly accounts therefor in
accordance with such policies and provided that any expenses or series of
related expenses in excess of $5,000 shall be approved in advance by the
Employer; (ii) paid 4-weeks vacation, holidays and sick leave in accordance with
Employer's policies applicable to all senior executives of Employer; and (iii)
all other applicable employee benefits, including without limitation, group
medical, dental and long-term disability insurance applicable to all senior
executives of Employer and, at the sole discretion of Employer, participation in
pension, profit
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sharing and other benefits plans of Employer or its Affiliates, in accordance
with Employer's policies applicable to all senior executives of Employer. At the
Employer's expense, Executive shall also be entitled to a monthly allowance for
the lease of an automobile and related expenses (e.g., parking, insurance,
etc.); provided, however, that the amount of the monthly allowance for the lease
of an automobile shall not exceed Executive's current monthly lease payments.
(c) ANNUAL BONUS.
(i) For the fiscal year ending December 31, 1998 (the
"98 FISCAL YEAR"), Executive shall be eligible for an annual bonus (the "1998
BONUS") equal to the sum of (a) $50,000 in the event that the earnings before
interest and taxes of the Allied Tours division of the Employer (the "ALLIED
EARNINGS") for the 98 Fiscal Year exceed the Allied Earnings for December 31,
1997 fiscal year (the "97 FISCAL YEAR") by at least five percent (5%); (b) in
the event that clause (a) above is attained, an additional $25,000 in the event
that the revenues of the Allied Tours division of the Employer (the "ALLIED
REVENUES") for the 98 Fiscal Year exceed the 97 Fiscal Year's Allied Revenues by
at least five percent (5%); (c) in the event that clauses (a) and (b) above are
attained, an additional $25,000 in the event that the Allied Earnings for the 98
Fiscal Year exceed the 97 Fiscal Year's Allied Earnings by at least ten percent
(10%); and (d) in the event that clauses (a), (b) and (c) above have all been
attained, an additional $50,000 (or a maximum total of $150,000) in the event
that the Allied Earnings for the 98 Fiscal Year exceed the 97 Fiscal Year's
Allied Earnings by at least thirteen percent (13%). Notwithstanding the
foregoing, Executive shall be entitled to a pro rata portion of any unattained
1998 Bonus target based on the percentage of such target that has been achieved
(such pro rata amount to be paid only to the extent that (i) with respect to a
pro rata portion of clauses (a) and (b) above, both Allied Earnings and Allied
Revenues for the 98 Fiscal Year exceed those attained in the 97 Fiscal Year and
(ii) with respect to a pro rata portion of clauses (c) or (d) above, the targets
in both (a) and (b) above have been attained). For example, if the Allied
Earnings for the 98 Fiscal Year exceed those for the 97 Fiscal Year by eight
percent (8%) (and assuming clauses (a) and (b) above have both been attained),
then Executive will be entitled to a 1998 Bonus of $90,000 ($75,000 plus $15,000
(60% (i.e., the percentage 8% is between 5% and 10%) multiplied by $25,000). The
1998 Bonus, if any, shall be determined based on generally accepted accounting
principles for any fiscal year; provided, however, that the Board shall in good
faith make adjustments that are necessary or appropriate to account for Force
Majeure (as defined in the Acquisition Agreement) or other extraordinary or
nonrecurring events or other circumstances that should be included or
disregarded in order to fairly determine whether the applicable levels of Allied
Earnings and Allied Revenues have been met, including the exclusion of all
restructuring costs or any costs associated with an IPO. The 1998 Bonus shall be
payable to Executive promptly after its determination.
(ii) The Executive shall also be eligible for an annual
bonus of up to $150,000 commencing with the fiscal year ending December 31, 1999
in the event that the Executive achieves certain performance criteria determined
by the Board for such fiscal year (the "ANNUAL BONUS"). The methodology utilized
for determining whether the performance criteria for the Annual Bonus has been
achieved shall be substantially similar to that utilized in
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determining the 1998 Bonus, including the need to make adjustments for an event
of Force Majeure or other extraordinary or nonrecurring events.
(d) COMPENSATION. In addition, the Employer agrees that
effective upon the closing of any initial public offering of the Employer's
equity securities ("IPO"), the Employer shall grant to Executive an option (the
"OPTION") to purchase up to $1,000,000 worth of the Employer's common stock at
an exercise price per share equal to the initial offering price per share of
such IPO. The Option shall vest in four equal annual installments on the first,
second, third and fourth anniversaries of the date of grant, subject to all
other terms of the Option as set forth in the Employer's stock option plan
applicable to all senior executives of the Employer to be adopted prior to the
IPO and an option agreement to be entered into as of the date of grant. In the
event that Executive's employment is terminated pursuant to either Sections
7(a)(ii), (iv) or (v) hereof or upon the occurrence of any change of control (as
customarily defined in the Employer's stock option plan), then the Option will
be deemed to be fully vested as of such date. Notwithstanding the foregoing, in
the event that Executive resigns prior to the expiration of the Term, then the
Option will immediately terminate and the Option will provide that Executive
shall forfeit to the Employer all profits deemed to have been made by Executive
upon the exercise of the Option during the Term (i.e., the difference, if any,
between the option exercise price and the fair market value of the Employer's
common stock at the time of exercise).
7. TERMINATION OF EMPLOYMENT.
(a) TERMINATION EVENTS. Executive's employment under this
Agreement, and the Term, shall terminate and neither party shall have any
further rights or obligations under this Agreement (except for the rights and
obligations under those sections of this Agreement which are continuing and
shall survive such termination), on the earliest to occur of the following
events:
(i) The sixtieth (60th) day following Employer's receipt
of written notice of resignation from Executive.
(ii) The thirtieth (30th) day following Employer's
notice of termination without Cause to Executive.
(iii) On the expiration date of the Term or any Renewal
Term provided that sixty (60) days' prior written notice of
termination has been given by either Employer or Executive.
(iv) The death of Executive.
(v) Upon written notice to Executive by Employer,
effective as of the date of such notice, if Executive shall have
become permanently disabled. For purposes of this Agreement, the
term "PERMANENTLY DISABLED" shall mean a
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condition as determined by the Board in good faith rendering
Executive unable to perform his responsibilities under this
Agreement for a period of at least six (6) consecutive months.
(vi) The termination of Executive by Employer for
"Cause" (as hereinafter defined). For purposes of this Agreement,
"CAUSE" shall mean, subject to the limitations described below, any
wrongful act or omission which constitutes: (A) Executive's
material neglect, refusal or failure to diligently discharge his
duties and abide by the Employer's written policies or other
material obligations under this Agreement, as determined in good
faith by the Board; (B) Executive's conviction of any crime
involving moral turpitude or any felony; (C) Executive's commission
of an act of theft or fraud in connection with his duties hereunder
or Executive engaging in any discrimination or sexual harassment
with respect to employees, customers or vendors of the Employer; (D)
Executive's gross negligence or willful misconduct in connection
with the performance of his duties hereunder; or (E) any material
violation of Sections 8 or 9 hereof by Executive. Notwithstanding
the foregoing, unless Executive has been given written notice of any
act or omission covered by Section 7(a)(vi)(A) or (D) and fails to
cure the same within fifteen (15) days from such notice, such act or
omission shall not constitute Cause.
(b) PAYMENTS AFTER TERMINATION. In the event Employer
terminates Executive's employment during the Term without Cause pursuant to
Section 7(a)(ii) above, Executive shall have no further rights or claims against
the Employer or its Affiliates except for the right to (i) continue to receive
the monthly portion of the Base Salary during a severance period (the "SEVERANCE
PERIOD") ending on the earlier of (x) the expiration date of the Term or any
Renewal Term and (y) the later of (1) December 31, 2000 or (2) 24 months from
the Termination Date (such monthly portion of the Base Salary to be paid out
ratably over the Severance Period in accordance with the Employer's normal
payroll practices); (ii) receive a monthly payment during the Severance Period
equal to the quotient obtained by dividing (A) the prior year's annual bonus
(for any termination during 1998 such annual bonus shall be deemed to be
$150,000) by (B) twelve (12) (such amount to be payable in accordance with the
Employer's normal payroll practices); (iii) reimbursement of all business
expenses properly incurred by the Executive prior to the date of termination;
and (iv) continue to receive during the Severance Period all medical, dental or
other health and welfare benefits provided to Executive prior to his
termination; provided, however, that such benefits shall cease to the extent
Executive receives similar benefits from any business with which he obtains
employment during the Severance Period. In the event of Executive's death or his
permanent disability as determined pursuant to Section 7(a)(v) above, Executive
shall have no further rights or claims against the Employer or its Affiliates
except for (i) the right to receive a monthly portion of his base salary under
Section 6(a) above for a period of six (6) months following the date of
Executive's termination (the "DEATH/DISABILITY PERIOD") payable ratably over the
Death/Disability Period in accordance with the Employer's normal payroll
practices; (ii) reimbursement of all business expenses properly incurred by the
Executive prior to the date of termination; and (iii) in the event of
termination
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due to permanent disability pursuant to Section 7(a)(v) above, the right to
continue to receive during the Death/Disability Period all medical, dental or
other health and welfare benefits provided to Executive prior to his
termination. In the event of termination of the Executive's employment for any
reason other than by Employer without Cause pursuant to Section 7(a)(ii) above,
Executive's death or by Executive's permanent disability pursuant to Section
7(a)(v) above, neither Executive nor his beneficiary or estate will have any
further rights or claims against the Employer or its Affiliates except for (i)
the unpaid portion of his base salary through the date of termination and (ii)
reimbursement of all business expenses incurred by the Executive prior to such
date.
(c) RETURN OF EMPLOYER'S PROPERTY. Executive agrees that,
upon the termination of this Agreement, Executive will immediately surrender to
the Employer all of the Employer's property, including, without limitation,
equipment, funds, lists, manuals, books, records or other Confidential
Information (including all copies of the foregoing) in the possession of, or
provided to, Executive.
8. CONFIDENTIAL INFORMATION AND GOODWILL; INVENTIONS. Executive
acknowledges and agrees as follows:
(a) As a necessary function of Executive's employment
hereunder, Executive will have access to and utilize Confidential Information
which constitutes a valuable and essential asset of Employer's business;
(b) Employer's relationship with its employees and the
recognition of Employer as a provider of efficient and effective services in the
Business are valuable and essential elements of the goodwill of Employer; and
(c) All inventions, innovations, developments, improvements,
methods, designs, analyses, drawings, software, reports and all similar or
related information (whether or not patented or patentable) developed by
Executive which (i) directly or indirectly relate to the Employer or its
Affiliates or the Business, or (ii) result from any work performed by Executive
while employed by Employer or its Affiliates shall belong to the Employer and
its Affiliates. Executive shall promptly disclose all such inventions to the
Board and perform all actions reasonably requested by the Board (whether during
or after the Term or any Renewal Term) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
9. NONCOMPETITION, NONSOLICITATION AND PROTECTION OF CONFIDENTIAL
INFORMATION. Executive covenants and agrees as follows:
(a) NONCOMPETITION. At any time during the Noncompete Period,
he will not, as an officer, director, employee, shareholder, owner, consultant,
principal, agent, trustee or through the agency of any corporation, partnership,
association or agent or agency, except in his capacity as an employee of
Employer, participate or engage in the Business or any
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Competitive Activity in the Trade Area, and shall not, directly or indirectly,
be the owner of more than five percent (5%) of the outstanding capital stock of
any corporation, partnership or other business engaged in any Competitive
Activity in the Trade Area.
(b) NONSOLICITATION. At any time during the period Executive
is employed by Employer or its Affiliates and for a period of two years
thereafter (the "NONSOLICIT PERIOD"), Executive will not, except in his capacity
as an employee of Employer, (i) directly or indirectly induce any customer of
Employer or its Affiliates to patronize any other individual or entity engaged
in any Competitive Activity; (ii) service, canvass, solicit or accept any
business from any customer of Employer or its Affiliates for the purpose of
competing with Employer or its Affiliates; (iii) directly or indirectly request
or advise any customer of Employer or its Affiliates to withdraw, curtail or
cancel such customer's business with Employer or its Affiliates; or (iv)
directly or indirectly disclose to any other Person the name or address of any
customer of Employer or its Affiliates for the purpose of competing with
Employer or its Affiliates. At any time during the Nonsolicit Period, Executive
further agrees that he will not, either directly or indirectly, through any
Person with which he is now or may hereafter become associated, solicit for
employment or employ any person who is or was employed by Employer or its
Affiliates at any time within the one (1) year period immediately preceding such
solicitation or employment.
(c) DISCLOSURE. During the Noncompete Period and the
Nonsolicit Period, Executive will use good faith reasonable efforts to preserve
as confidential and not to, either directly or indirectly, publish, release,
disseminate, disclose or otherwise make available to any third party or use or
otherwise exploit for Executive's own benefit or for the benefit of anyone other
than Employer, any Confidential Information, except as (i) may be expressly
authorized by Employer in its sole discretion, (ii) required during and in the
course of Executive's employment, or (iii) required by a judicial order or
decree of governmental law or regulation.
(d) The restrictive covenants and agreements contained in this
Section 9 are reasonable with respect to subject matter, length of time and
geographic area, for the protection of the legitimate business interests of
Employer, including, without limitation, Employer's Confidential Information,
goodwill and expectation of conducting its business without competition from
Executive in the Trade Area during the Noncompete Period.. Executive further
acknowledges and agrees that the restrictive covenants contained in this Section
9 constitute a material inducement to Employer to enter into this Agreement.
10. ARBITRATION WITH RESPECT TO CERTAIN MATTERS. EXCEPT WITH RESPECT
TO SECTION 9 ABOVE, WHICH IS EXPRESSLY EXCLUDED HEREFROM, THE PARTIES AGREE TO
SUBMIT TO ARBITRATION, IN ACCORDANCE WITH THESE PROVISIONS, ANY CLAIM OR
CONTROVERSY ARISING FROM OR RELATED TO THE ALLEGED BREACH OF THIS AGREEMENT. THE
PARTIES FURTHER AGREE THAT THE ARBITRATION PROCESS AGREED UPON HEREIN SHALL BE
THE EXCLUSIVE MEANS FOR RESOLVING ALL DISPUTES MADE SUBJECT TO ARBITRATION
HEREIN, BUT THAT NO ARBITRATOR SHALL HAVE AUTHORITY TO EXPAND THE SCOPE OF THESE
ARBITRATION PROVISIONS. ANY ARBITRATION HEREUNDER SHALL BE CONDUCTED UNDER THE
MODEL EMPLOYMENT PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA).
EITHER PARTY MAY INVOKE ARBITRATION PROCEDURES
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HEREIN BY WRITTEN NOTICE FOR ARBITRATION CONTAINING A STATEMENT OF THE MATTER TO
BE ARBITRATED. THE PARTIES SHALL THEN HAVE FOURTEEN (14) DAYS IN WHICH THEY MAY
IDENTIFY A MUTUALLY AGREEABLE, NEUTRAL ARBITRATOR. AFTER THE FOURTEEN (14) DAY
PERIOD HAS EXPIRED, THE PARTIES SHALL PREPARE AND SUBMIT TO THE AAA A JOINT
SUBMISSION, WITH EACH PARTY TO CONTRIBUTE HALF OF THE APPROPRIATE ADMINISTRATIVE
FEE. IN THE EVENT THE PARTIES CANNOT AGREE UPON A NEUTRAL ARBITRATOR WITHIN
FOURTEEN (14) DAYS AFTER WRITTEN NOTICE FOR ARBITRATION IS RECEIVED, THEIR JOINT
SUBMISSION TO THE AAA SHALL REQUEST A PANEL OF THREE ARBITRATORS WHO ARE
PRACTICING ATTORNEYS WITH PROFESSIONAL EXPERIENCE IN THE FIELD OF LABOR AND/OR
EMPLOYMENT LAW, AND THE PARTIES SHALL ATTEMPT TO SELECT AN ARBITRATOR FROM THE
PANEL ACCORDING TO AAA PROCEDURES. UNLESS OTHERWISE AGREED BY THE PARTIES, THE
ARBITRATION HEARING SHALL TAKE PLACE IN NEW YORK, NEW YORK, AT A PLACE
DESIGNATED BY THE AAA. ALL ARBITRATION PROCEDURES HEREUNDER SHALL BE
CONFIDENTIAL. EACH PARTY SHALL BE RESPONSIBLE FOR ITS COSTS INCURRED IN ANY
ARBITRATION, AND THE ARBITRATOR SHALL NOT HAVE AUTHORITY TO INCLUDE ALL OR ANY
PORTION OF SAID COSTS IN AN AWARD, REGARDLESS OF WHICH PARTY PREVAILS. ANY
ARBITRATION AWARDED SHALL BE ACCOMPANIED BY A WRITTEN STATEMENT CONTAINING A
SUMMARY OF THE ISSUES IN CONTROVERSY, A DESCRIPTION OF THE AWARD, AND AN
EXPLANATION OF THE REASONS FOR THE AWARD. IT IS UNDERSTOOD AND AGREED BY THE
PARTIES THAT THEIR AGREEMENTS HEREIN CONCERNING ARBITRATION DO NOT OTHERWISE
ALTER THE TERMS AND CONDITIONS OF EXECUTIVE'S EMPLOYMENT AS PROVIDED BY THIS
AGREEMENT.
11. REMEDIES-COURT ACTION. With respect to each breach or threatened
breach of Section 9 of this Agreement and without waiver of any right or remedy
which the Employer may elect to pursue with respect thereto, all remedies
available at law or in equity, including specific performance and injunctive
relief, may be pursued by the Employer at any time. The agreements and covenants
contained in Section 9 shall not be held invalid or unenforceable because of the
scope of the geographic area or actions subject thereto or restrictions imposed
thereby, or the period of time within which such agreement or covenant is
operative, but any judgment of a court of competent jurisdiction may reform or
define the maximum geographic area and actions subject to and restricted by
Section 9 and the period of time during which such agreement or covenant is
enforceable.
12. CAPTIONS AND NUMBER. The captions of the sections of this
Agreement have been inserted for convenience of reference only and shall not
affect the interpretation of this Agreement. Whenever it appears appropriate
from the context, each term stated in either the singular or plural shall
include both the singular and the plural.
13. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned, transferred or delegated by either party without the
prior written consent of the other party in his or its sole discretion, and any
attempt to do so shall be void; provided, however, that Employer shall have the
right to assign this Agreement or any of its rights or obligations hereunder to
any Affiliate of Employer or to any Purchaser without the consent of Executive.
14. SEPARATE AGREEMENTS. This Agreement shall be deemed to consist
of a series of separate covenants. Should a determination be made by a court of
competent
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jurisdiction that the character, duration, or geographical scope of any
provision of this Agreement is unreasonable in light of the circumstances as
they then exist, then it is the intention and the agreement of the Employer and
Executive that this Agreement shall be construed by the court in such a manner
as to impose only those restrictions on the conduct of Executive which are
reasonable in light of the circumstances as they then exist and as are necessary
to assure the Employer of the intended benefit of this Agreement. If, in any
judicial proceeding, a court shall refuse to enforce all of the separate
covenants deemed included herein because, taken together, they are more
extensive than necessary to assure the Employer of the intended benefit of this
Agreement, then it is expressly understood and agreed by the Employer and
Executive that those covenants which, if eliminated, would permit the remaining
separate covenants to be enforced in such proceeding, shall, for the purpose of
such proceeding, be deemed eliminated from the provisions hereof.
15. POLICIES, REGULATIONS AND GUIDELINES FOR EMPLOYEES. The Employer
might issue policies, rules, regulations, guidelines, procedures, or other
informational material, whether in the form of handbooks, memoranda, or
otherwise, relating to Employer's employees. The parties acknowledge and agree
that such materials are general guidelines for Executive's information and shall
not be construed to alter, modify or amend this Agreement for any purpose
whatsoever.
16. AMENDMENT. No amendment of this Agreement shall be valid unless
made in writing and signed by Employer and Executive.
17. ENTIRE AGREEMENT; AGREEMENT CONFIDENTIAL. This Agreement
contains the entire agreement and understanding between Employer and Executive
with respect to Executive's employment and supersedes all prior agreements,
whether written or oral, relating to Executive's employment with Employer. No
representations, inducements, or agreements have been made to induce either
Executive or Employer to enter into this Agreement which are not expressly set
forth herein. This Agreement is the sole source of rights and duties as between
Employer and employee relating to Executive's employment by Employer. Except as
required by law, Executive and Employer agree to use their respective best
efforts to maintain as confidential the terms of this Agreement.
18. CONDITIONAL AGREEMENT. This Agreement and all of the rights,
duties and obligations of Employer and Executive contained herein are expressly
conditioned upon the consummation of the Acquisition (the "Closing"). In the
event of Closing, the Closing Date shall be the effective date of this
Agreement.
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19. NOTICE. All notices, consents, requests, approvals or other
communications in connection with this Agreement shall be in writing and shall
be delivered personally or sent by certified, registered or express mail,
postage prepaid, or by facsimile transmission (with confirmation of
transmission), and shall be deemed delivered on the date received. Unless
changed by written notice pursuant hereto, the address of each party for the
purposes hereof is as follows:
If to Executive:
c/o Allied Bus Corp.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to Employer:
c/o Global Vacation Group, Inc.
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Xxxxx Xxxxxx
With a copy to:
Xxxxx & Xxxxxxx, LLP
000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Telephone: 202/000-0000
Facsimile: 202/637-5910
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
X. Xxxxx Xxxx, Esq.
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Notice given by mail as set out above shall be deemed delivered only when
actually received.
20. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THAT STATE'S CHOICE OF LAW RULES.
21. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but together they shall
constitute one and the same instrument.
22. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES. Executive represents
and warrants that he has full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with Employer, and that his past, present
and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, which would conflict with
his obligation to use his best efforts to promote the interests of Employer or
which would conflict with Employer's business as conducted or proposed to be
conducted. Neither the execution nor delivery of this Agreement, nor the
carrying on of Employer's business as an officer, director or employee by
Executive will conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any contract, covenant or
instrument under which Executive is now obligated.
IMPORTANT: THIS AGREEMENT CONTAINS VERY IMPORTANT TERMS GOVERNING
YOUR EMPLOYMENT WITH EMPLOYER. SECTION 9 CONTAINS PROVISIONS WHICH AFFECT YOUR
ABILITY TO TAKE CERTAIN ACTIONS FOLLOWING THE TERMINATION OF THIS AGREEMENT. YOU
SHOULD FEEL FREE TO SEEK ADVICE FROM YOUR ATTORNEY REGARDING ANY MATTER RELATING
TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT, YOU ARE AFFIRMING THAT YOU HAVE
HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND TO CONSULT WITH YOUR ATTORNEY
IF YOU SO DESIRED, THAT YOU UNDERSTAND THE MEANING AND SIGNIFICANCE OF ALL OF
ITS PROVISIONS, THAT NO REPRESENTATIONS OR PROMISES HAVE BEEN MADE TO YOU
REGARDING YOUR EMPLOYMENT WHICH ARE NOT SET FORTH IN THIS AGREEMENT, AND THAT
YOU ARE FREELY SIGNING THIS AGREEMENT TO OBTAIN EMPLOYMENT WITH EMPLOYER.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
"EXECUTIVE"
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx
"EMPLOYER"
GLOBAL VACATION GROUP, INC.
By: /s/ J. Xxxxxxx Xxxxx
----------------------------------
J. Xxxxxxx Xxxxx
President and Chief Operating Officer
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