Exhibit 10.17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, DATED AS OF NOVEMBER 22, 1999, by and between
XXXXX X. XXXXXX, an individual residing at 0000 Xxxx Xxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxxx 00000 (the "EXECUTIVE"), and 800 TRAVEL SYSTEMS, INC., a Florida
corporation maintaining business offices at 0000 Xxxx Xxxxxxx, Xxxxx, Xxxxxxx
00000, and each of its successors in interest (collectively the "COMPANY").
BACKGROUND INFORMATION
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The Company wishes to secure the employment services of the Executive
for a definite period of time and upon the particular terms and conditions
hereinafter set forth. The Executive is willing to be so employed. Accordingly,
for good and valuable consideration, the receipt and adequacy of which is
expressly acknowledged, the parties agree as follows:
OPERATIVE PROVISIONS
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1. EMPLOYMENT AND TERM.
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The Company hereby employs the Executive and the latter hereby accepts
employment by the Company for the four year period commencing as of the date of
this Agreement and continuing through November 30, 2003 (the "INITIAL TERM"),
which employment shall thereafter be automatically extended for unlimited
successive one year periods (each a "SUCCESSOR TERM") unless it is terminated
during the pendency of any such Term, whether Initial or Successor, by the
occurrence of one of the events described in Section 8 hereof, or at the end of
any such Term by one party furnishing the other with notice, at least 60 days
prior to the expiration of such Term, of an intent to terminate this Agreement
upon the expiration of such Term.
2. DUTIES.
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During the Term of this Agreement, whether Initial or Successor, the
Executive shall render to the Company services as its President, and shall
perform such duties normally associated with that position, including but not
limited to the formulation and implementation of business strategies and
initiatives, overseeing and developing marketing plans, and initiating and
reviewing merger and acquisition opportunities, and as may otherwise be
reasonably designated by and subject to the supervision of the Company's Chief
Executive Officer and its Board of Directors, and he shall serve in such
additional capacities appropriate to his responsibilities and skills as shall be
designated by the Company, through action of its Chief Executive Officer and the
Board of Directors. During such Term, the Executive shall devote his primary and
substantial business attention, time and energies to the operations and affairs
of the Corporation, and will use his best efforts to promote the interests and
reputation of the Company, provided that he may pursue such other activities,
both remunerative and non-remunerative, as do not interfere or compete with, to
any material degree, the complete performance of his obligations hereunder. Any
question of interpretation which may arise under the preceding proviso shall be
resolved by majority decision of the Company's Board of Directors, provided that
the Executive's current and any continuing membership on the board of directors
of each of Fast Lane Travel, Inc. ("FAST LANE TRAVEL"), World Airways, Inc.,
IJBI, Inc., Aden Enterprises or Epsilon, Inc. is hereby approved, as are any
operational or administrative activities engaged in by the Executive in
performing services for Xxxx.xxx, within the period ending June 1, 2000,
involving no more than 32 hours per month and which are not competitive to the
interests of the Company. The Company shall cause the Executive, as of the date
of this Agreement, to be appointed to membership on the Company's Board of
Directors and covenants that its best efforts shall be used during the Term to
cause the Executive to be nominated for and, with shareholder approval, elected
to continued and uninterrupted service in that capacity.
The Executive represents and warrants to the Company that, other than
under the terms of the Travel Industries, Inc. Employee Confidentiality
Agreement, dated September 16, 1999, a complete and correct copy of which has
been furnished to the Company, (a) he is not proscribed by any agreement with
any prior employer or other party from using or disclosing any confidential
information, or competing with the business, of such employer or other party,
(b) his performance under this Agreement will not breach any other agreement by
which he is bound, and (c) in the performance of his duties hereunder, he will
not make use of materials or information proprietary to any former employer and
which are not generally available to the public.
3. BASE COMPENSATION; DIRECTOR FEES; CASH BONUS ELIGIBILITY.
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For the services to be rendered by the Executive under this Agreement
the Company shall pay him, while he is rendering such services and performing
his duties hereunder, and the Executive shall accept in exchange for such
service, an annualized base compensation of not less than $174,000 during the
Initial or any Successor Term (inclusive of any amounts subject to federal,
state or local employment related withholding requirements), payable in
substantially equal installments coinciding with the Company's normal employment
compensation payment cycle or pursuant to such other arrangements as the parties
may agree upon (the "BASE COMPENSATION"). Such Base Compensation shall be
increased on each anniversary date of this Agreement to give effect, in the
manner described in SCHEDULE I hereto, to any change in the Consumer Price Index
(as defined in such Schedule) occurring within the preceding annual period; and
it shall also be reviewed by the Company's Board of Directors or any
compensation committee thereof within the 90 day period preceding each
anniversary of the date of this Agreement in the expectation of increasing the
same to award superior performance, with any such increase to be implemented as
of such anniversary by action of the Company's Board of Directors; but under no
condition may the Executive's Base Compensation be decreased below the amount
hereinabove set forth, or below any higher amount then being paid to him,
regardless of any change in or diminution of the Executive's duties owed to the
Company.
The Executive shall also be eligible to receive an annual cash bonus,
to be paid within the 90 day period succeeding the expiration of each fiscal
year of the Company within the Term of this Agreement, with the actual amount,
if any, to be determined by the Company's Board of Directors upon the
recommendation of any compensation committee thereof and in accordance with an
executive performance bonus plan to be established by the Company's Board of
Directors on or before June 1, 2000 and then to be attached as an exhibit to
this Agreement.
4. FRINGE BENEFITS; REIMBURSEMENT OF EXPENSES.
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During his period of employment hereunder, the Executive shall be
entitled to:
a. the most favorable leave by reason of physical or mental
disability or incapacity and to the most favorable participation in
medical, dental and group insurance, pension and other retirement
benefits and disability and other fringe benefit plans as the Company
may make available to any of its most senior executive employees or
directors from time to time; subject, however, as to such plans, to
such budgetary constraints or other limitations as may be imposed by
the Board of Directors of the Company from time to time;
b. reimbursement for all normal and reasonable expenses,
legal, accounting, financial or otherwise, (i) appropriately incurred
by him in the negotiation and preparation of this Agreement, in an
amount not to exceed $5,000; (ii) in the relocation of his business
office from Colorado to Florida, in an amount not to exceed $10,000;
and (iii) in the performance of his duties hereunder, but subject in
each case to such reasonable substantiation requirements as may be
imposed by the Company and to the deductibility by the Company of all
such amounts for federal income tax purposes;
c. the full time use of a private office at the principal
location of the Company's activities, with all ordinary and customary
office equipment appropriate to his position and to the duties which he
is to undertake on behalf of the Company.
In addition, subject to any limitations as may be imposed by applicable law, the
Company shall:
a. indemnify the Executive against, and shall hold him
harmless from, all expenses (including all attorney and other
professional fees), judgments or fines incurred or paid in connection
with, or any amount incurred or paid in settlement of, any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in
the right of the Company) by reason of his being or having been an
officer, director, employee or agent of the Company or any affiliated
entity;
b. advance all expenses (including attorneys' fees) incurred
by the Executive in investigating or defending any such action, suit or
proceeding;
c. maintain directors' and officers' liability insurance
coverage (including coverage with respect to any claim made under or in
connection with any federal or state securities law, regulation or
rule) in a principal amount reasonably sufficient to provide the
Executive with economic protection against any claim that might be
expected to be brought against an individual by reason of his service
as a Company officer, director, employee or agent, which coverage shall
remain in force (or be supplemented by the acquisition of a separate
policy) for the three year period following the Executive's termination
of service with the Company for any reason; and
d. during the Term of this Agreement, employ an executive
assistant of the Executive's selection who shall serve both the
Executive and the Company's Chief Executive Officer; compensate her for
such services at an annual rate of no less than $40,000, payable in
substantially equal installments coinciding with the Company's normal
employment compensation payment cycle or pursuant to such other
arrangements as the parties may agree upon; and provide her with leave
by reason of physical or mental disability or incapacity and to
participation in medical, dental and group insurance, pension and other
retirement benefits, and disability, vacation and other fringe benefits
as the Company may make available from time to time to any of its
employees who are performing similar services for other Company
executives or are being compensated at approximately the same level as
such executive assistant; it being agreed, however, that any such
employee shall be deemed an employee at will and shall be subject to
all of the Company's employment policies and procedures.
5. STOCK OPTIONS.
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Subject to all terms and conditions of this Agreement, the Executive is
hereby granted a non-qualified option (the "OPTION"), exercisable by or on
behalf of the Executive commencing as of the earlier of the Applicable Exercise
Commencement Date or Full Vesting Date, each as defined below, to acquire from
the Company up to 700,000 shares of its single class of authorized common voting
stock, $.01 par value (the "COMMON STOCK"), with such number of shares and the
prices at which they may be acquired upon exercise of the Option to be subject
to adjustment from time to time in accordance with the provisions of Section 9k
below (with or without any such adjustment, the "SHARES"), and it being agreed
that the Option is not being granted under or to be subject to the terms of any
pre-existing stock option plan presently being administered by the Company for
the benefit of any of its employees. For purposes of determining the Option
exercise prices and the time as of which and manner in which the Executive shall
be entitled to exercise the Option the Shares shall be divided into four
separate groups, herein designated as Group A, Group B, Group C and Group D,
with Group A to be comprised of 100,000 Shares and each of Groups B, C and D
200,000 Shares. As to the Shares comprising each Group, the Option may be
exercised in one or more separate transactions, in each case consummated at a
date, time and place of the parties' reasonable choice, within the three
business day period succeeding the date upon which a notice of exercise is
furnished to the Company, but in each case subject to the following additional
provisions and limitations:
a. Following the third monthly anniversary of this Agreement,
the Option may be exercised as to a maximum of 50,000 Group A Shares at
an exercise price of $3.00 per Share, 25,000 Group B Shares at an
exercise price of $5.00 per Share, and 25,000 Group B Shares at an
exercise price of $7.00 per Share;
b. Following the later of the (i) sixth monthly anniversary of
this Agreement, or (ii) attainment by the Common Stock of a Closing
Price of $4.00, the Option may be exercised as to a maximum of 50,000
Group A Shares at an exercise price of $3.00 per Share;
c. Following the later of the (i) sixth monthly anniversary of
this Agreement, or (ii) attainment by the Common Stock of a Closing
Price of $6.00, the Option may be exercised as to a maximum of 75,000
Group B Shares at an exercise price of $5.00 per Share;
d. Following the later of the (i) sixth monthly anniversary of
this Agreement, or (ii) attainment by the Common Stock of a Closing
Price of $8.00, the Option may be exercised as to a maximum of 75,000
Group B Shares at an exercise price of $7.00 per Share;
e. Following attainment by the Common Stock of a Closing Price
of $10.00, the Option may be exercised as to all Group C Shares at an
exercise price of $3.00 per Share;
f. Following attainment by the Common Stock of a Closing Price
of $25.00, the Option may be exercised as to all Group D Shares at an
exercise price of $3.00 per Share;
g. For purposes of this Section:
CLOSING PRICE, as used in sub-paragraphs b. through
e. above, shall be determined as follows: (i) if at the time
the Executive elects to exercise the Option as to any Shares,
shares of the Company's Common Stock are then, or have
previously been, listed on any national securities exchange
(or, if such shares are listed on more than one such exchange,
then on the exchange through which trades of the Common Stock
shall have produced the largest trading volume during the
Relevant Period, as defined below), the applicable Closing
Price shall be deemed to have been attained so as to enable
such election to be made if the reported closing price of a
single share of Common Stock traded on such exchange on seven
of any ten consecutive trading days, the last of which shall
have ended at least three trading days prior to the date of
notification by the Executive of his election to exercise the
Option (such time period being hereinafter referred to as the
"RELEVANT PERIOD"), shall have been at or above the applicable
Closing Price; (ii) if at the time of such election the Common
Stock is, or has previously been, publicly traded but not
listed on any national securities exchange, the applicable
Closing Price shall be deemed to have been attained so as to
enable such election to be made if the reported closing bid
price of a single share of Common Stock traded over the Nasdaq
Stock Market, Inc. Automated Quotation System ("NASDAQ") or,
if not listed on NASDAQ, then as reported by the National
Quotation Bureau, Inc. or a comparable general securities
quotation service, on seven trading days within the Relevant
Period shall have been at or above the applicable Closing
Price; or (iii) if at the time of such election the Common
Stock is not, or has not previously been, publicly traded, the
applicable Closing Price shall be deemed to have been attained
so as to enable such election to be made if the net book value
of a single share of Common Stock as reflected on the
Company's audited statement of financial position prepared as
of the last day of its fiscal year ending most recently prior
to the election date is equal to or above the applicable
Closing Price;
CLOSING PRICE, as used in sub-paragraph f. above,
shall be determined in the same manner as set forth in the
preceding paragraph, provided that the closing price or
closing bid price of the Common Stock need be equal to or
above the applicable Closing Price on only a single day which
shall have occurred at least three trading days prior
to the date of notification by the Executive of his election
to exercise the Option;
FULL VESTING DATE shall mean the fourth yearly
anniversary of the date of this Agreement; and
each of the dates identified in subsections a.
through f. above as the date upon which the exercise period of
the Option shall be deemed to have commenced as to specific
Shares is sometimes herein referred to as the APPLICABLE
EXERCISE COMMENCEMENT DATE.
h. Notwithstanding the provisions of subsections a. through e.
above, upon the occurrence of a Change in the Control of the Company
(as such capitalized term is defined in Section 8e below) the Option
shall fully vest as to all Group A, B and C Shares not then purchased
by the Executive or otherwise made available for such purchase and
shall be deemed amended to allow the Executive, within the 60 day
period following his receipt of notice that such Change in the Control
of the Company has occurred, to exercise the Option and acquire all or
any portion of the Group A, B and C Shares then subject to its terms
upon payment of the exercise price applicable to each Group, subject to
adjustment as contemplated by Section 9k below.
i. The Option shall terminate and no longer be subject to
exercise upon the third monthly anniversary of the termination of the
Executive's employment by the Company hereunder; provided that if:
(A) such termination is effected by the Executive
under the provisions of Section 8e below (a Good Reason
termination), then his exercise rights shall be determined by
reference to the last paragraph of Section 8e;
(B) if, prior to expiration of the Option the
Executive is disabled to the extent that he cannot reasonably
exercise the Option or decide whether to exercise it, then the
Executive's spouse, any holder of a general power of attorney
granted by Executive, or the Executive's legal representative
shall be entitled to exercise the Option, as to any Shares
that shall have been available for purchase upon the
termination of his employment hereunder, during the six month
period succeeding such date of termination; or
(C) if the Executive's termination of service
hereunder is caused by his death, then the Executive's
personal representative or any devisee or other beneficiary of
his rights hereunder shall be entitled to exercise the Option,
as to any Shares that shall have been available for purchase
upon the date of his death, during the succeeding one year
period.
6. PROPRIETARY INTEREST AND CONFIDENTIALITY COVENANTS.
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During or after the expiration of his term of employment with the
Company, the Executive shall not communicate or divulge to, or use for the
benefit of, any individual, association, partnership, trust, corporation or
other entity except the Company, any proprietary or confidential information of
the Company received by the Executive by virtue of such employment, expressly
including information relating to the Company's customers, its pricing policies,
methods of operation, proprietary computer programs and trade secrets, without
first being in receipt of the Company's consent to do so and in compliance with
the terms of any other confidentiality or non-competition agreement which the
Executive may hereafter execute with the Company; provided that nothing
contained herein shall restrict the Executive's use or disclosure of such
information generally known to the public (other than that which he may have
disclosed in breach of this Agreement), or as required by law (so long as the
Executive gives the Company prior notice of such required disclosure).
During the Term of this Agreement and within the 12 month period
following the Executive's resignation under Section 8f or his termination by the
Company under Section 8b or 8c, the Executive shall not, directly or indirectly,
either on Executive's behalf or on behalf of any other person, entity, partner,
joint venture, agent, salesman, contractor or otherwise:
i. Solicit or accept business from any customer or
account of the Company existing at any time during the term of
Executive's employment with the Company or from any other
person known by the Executive at the time his employment with
the Company terminated to be a prospective customer of the
Company; or
ii. Solicit any employee, independent contractor or
vendor of the Company to terminate his, her or its employment,
consulting arrangement or vending arrangement with the Company
or to employ or retain any such employee or independent
contractor if such person should terminate his or her
employment or consulting arrangement with the Company
(including any such person as shall have terminated such
employment or arrangement within the 90 day period preceding
the date of the Executive's termination).
7. REMEDIES FOR BREACH OF OBLIGATIONS.
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a. INJUNCTIVE RELIEF. The parties agree that the services of
the Executive are of a personal, specific, unique and extraordinary
character and cannot be readily replaced by the Company. They further
agree that in the course of performing his services, the Executive will
have access to various types of proprietary information of the Company,
which, if released to others or used by the Executive other than for
the benefit of the Company, in either case without the Company's
consent, could cause the Company to suffer irreparable and continuing
injury. Therefore, the obligations of the Executive established under
Section 6 hereof shall be enforceable by the Company both at law and in
equity, by injunction, specific performance, damages or other remedy;
and the right of the Company to obtain any such remedy shall be
cumulative and not alternative and shall not be exhausted by any one or
more uses thereof.
b. ARBITRATION. Any controversy, dispute or claim arising out
of, in connection with or otherwise relating to any provision of this
Agreement, or to the breach, termination or validity hereof or any
transaction contemplated hereby (any such controversy, dispute or claim
being referred to as a "DISPUTE"), shall be finally settled by
arbitration conducted expeditiously in accordance with the Commercial
Arbitration Rules then in force (the "AAA RULES") of the American
Arbitration Association (the "AAA"), with application of the following
additional procedural requirements. A single arbitrator (the
"ARBITRATOR") shall be appointed by the AAA to consider such Dispute
within five business days after the demand for arbitration is received
by the AAA and the respondent in any such proceeding. The Arbitrator
shall be a certified public accountant or attorney with no less than 15
years' experience in the practice of business accountancy or law who
shall not have performed any legal services for any of the parties or
person controlled by any of the parties for a period of five years
prior to the date the demand for arbitration is received by the
respondent.
The situs for an arbitration pursuant to this Section shall be
as agreed to by the parties, failing which it shall be Hillsborough
County, Florida. Each party may submit memoranda and other
documentation as it or he deems appropriate to aid the formulation of
the Arbitrator's decision, and request a hearing (which may be
conducted in person or telephonically) so as to be able to present oral
testimony and argument. A final arbitration decision and award shall be
rendered as soon as reasonably possible and, in any event, within 30
business days following appointment of the Arbitrator; PROVIDED,
however, that if the Arbitrator determines that fairness so requires,
such period may be extended by no more than 30 additional days. The
Arbitrator shall have the right and power to shorten the length of any
notice periods or other time periods provided in the AAA Rules and to
implement Expedited Procedures under the AAA Rules in order to ensure
that the arbitration process is completed within the time frames
provided herein.
The arbitration decision or award shall be reasoned and in
writing, and the Arbitrator shall have the right and authority to
determine how the decision or award as to each issue and matter in
dispute may be implemented or enforced. Any decision or award shall be
final and conclusive on the parties; there shall be no appeal therefrom
other than for claimed bias, fraud or misconduct by the Arbitrator;
judgment upon any decision or award may be entered in any court of
competent jurisdiction in the State of Florida or elsewhere; and the
parties hereto consent to the application by any party in interest to
any court of competent jurisdiction for confirmation or enforcement of
such decision or award. The party against whom a decision or award is
rendered shall pay the fees of the American Arbitration Association.
Any arbitration held pursuant to the provisions of this Section shall,
to the extent not in conflict with the express terms of this Agreement,
be governed by the Federal Arbitration Act and the Federal Rules of
Civil Procedure. All arbitrations commenced pursuant to this Agreement
while any other arbitration hereunder shall be in progress shall be
consolidated and heard by the Arbitrator.
Notwithstanding the foregoing, the Company, at its sole
option, shall be entitled to enforce its rights, as contemplated by
Section 7a hereof, to injunctive and other equitable relief in the
event of a breach of Section 6 hereof or of any material term of a
confidentiality or non-competition agreement to which the Company and
the Executive shall then be parties, either by arbitration pursuant to
this Section 7b or directly in any court of competent jurisdiction.
8. TERMINATION OF EMPLOYMENT.
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a. DEATH. The Executive's employment hereunder shall terminate
in the event of the Executive's death. Except for any salary and
benefits accrued, vested and unpaid as of the date of any such
termination and except for any benefits to which the Executive or his
heirs or personal representatives may be entitled under and in
accordance with the terms of any employee benefit plan, policy or
program maintained by the Company, the Company shall be under no
further obligation hereunder to the Executive or to his heirs or
personal representatives, and the Executive or his heirs or personal
representatives no longer shall be entitled to receive any payments or
any other rights or benefits under this Agreement.
b. DISABILITY. The Company may terminate the Executive's
employment hereunder for "DISABILITY" if an independent physician
mutually selected by the Executive (or his legal representative) and
the Board of Directors or its designee shall have determined that the
Executive has been substantially unable to render to the Company
services of the character contemplated by Section 2 of this Agreement,
by reason of a physical or mental illness, injury or other related
condition for more than 90 consecutive days or for shorter periods
aggregating more than 180 days in any period of 12 consecutive months
(excluding in each case days on which the Executive shall be on
vacation). In the event of such a termination, the Executive shall be
entitled to receive any salary and benefits accrued, vested and unpaid
as of the date his employment ends, and any benefits to which the
Executive may be entitled under and in accordance with the terms of any
Executive benefit plan, policy or program maintained by the Company.
Upon the Executive's receipt of such salary and benefits the
Corporation shall be under no further obligation hereunder to the
Executive and the Executive no longer shall be entitled to receive any
payments or any other rights or benefits under this Agreement.
c. TERMINATION BY THE COMPANY FOR CAUSE. The Company's Board
of Directors may terminate the Executive's employment hereunder for
"CAUSE." For purposes of this Agreement, "Cause" shall mean any of the
following:
i. The Executive's willful misconduct or gross
negligence as related to a material matter;
ii. The Executive's intentional or willful failure to
substantially perform his obligations hereunder or of any
other duties reasonably assigned to him by the Company's Board
of Directors or Chief Executive Officer;
iii. The Executive's intentional or willful violation
of any material provision of the Company's by-laws or of its
other stated policies, standards or regulations;
iv. The Executive's commission of any act or omission
involving intentional or willful disloyalty to the Company
such as embezzlement, fraud or misappropriation of Company
assets;
v. A determination that the Executive has
demonstrated a dependence upon any addictive substance,
including but not limited to alcohol, controlled substances,
narcotics or barbiturates; or
vi. The Executive's conviction of any felony crime,
or his conviction of any lesser crime committed in connection
with his employment by the Company or involving moral
turpitude;
provided, however, that if the Board of Directors desires to terminate
the Executive for any of the reasons set forth in clause (i), (ii),
(iii), (iv) or (v) of this Section 8c., it shall, within the 60 day
period immediately following each alleged commission of a proscribed
act or omission, be required to furnish the Executive with notice
including a detailed description of the allegedly proscribed act or
omission; a statement advising him that the Board views such conduct as
being of the type which should lead to a termination of the Executive
for Cause; a specification of the clause(s) which the Board deems
violated as a result of the alleged act; a statement advising of the
Board's intention to terminate him for Cause as a result of such act;
an offer to provide him, within the ten day period following the date
of the notice, with an opportunity to present to the Board, either in
person or, at his discretion, in writing, any defenses which he
believes to exist with respect to the allegations set forth in the
notice; and a statement indicating that the Board will, once presented
with such defenses, provide the Executive with an opportunity to
correct or otherwise cure the act or omission giving rise to such
notice if the Board, acting at its discretion, reasonably exercised,
finds the Executive's defenses to merit such an action. Except for any
salary and benefits accrued, vested and unpaid as of the date of any
termination for Cause, the Company shall be under no further obligation
hereunder to the Executive and the Executive no longer shall be
entitled to receive any payments or any other rights or benefits under
this Agreement.
d. TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE. The
Company may terminate the Executive's employment hereunder upon the
expiration of the Initial Term or any Successor Term, provided that
notice of termination is furnished as set forth in Section 1, or at any
time prior to the expiration of any such Term, upon 60 days notice to
the Executive, and subject, in the event of such termination prior to
the expiration of a Term, to the right of the Executive, within such
notification period, to effect his own Good Reason termination as
described in subsection e. below. In the event of either such
termination, the Executive shall be entitled to receive any salary and
benefits accrued, vested and unpaid as of the date of any such
termination and any benefits to which the Executive may be entitled
under and in accordance with the terms of any employee benefit plan,
policy or program maintained by the Company, as well as, in the event
that the Executive shall have timely effected a Good Reason
termination, those benefits authorized under the provisions of
subsection e; and following his receipt of such salary and benefits the
Company shall be under no further obligation hereunder to the Executive
and the Executive no longer shall be entitled to receive any payments
or any other rights or benefits under this Agreement.
e. TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
Notwithstanding anything herein to the contrary, the Executive shall be
entitled to terminate his employment hereunder for Good Reason without
breach of this Agreement. For purposes of this Agreement, "GOOD REASON"
shall exist upon the occurrence of any of the following events or
matters, in each case without the Company first being in receipt of the
Executive's consent thereto, and the period of time within which the
Executive shall be required to exercise a Good Reason termination of
service shall be 30 days, measured from the date upon which he is
notified by the Company of such occurrence, or, with respect to the
matter identified in subparagraph iii. below, from the date upon which
the Executive notifies the Company of his belief that a material breach
has occurred:
i. A directed change in the Executive's principal
place of employment, other than within the Tampa Bay
metropolitan area;
ii. A material adverse change in, or a substantial
elimination of, the duties and responsibilities of the
Executive as described herein;
iii. A material breach by the Company of any of its
obligations hereunder;
iv. A Change in the Control of the Company; or
v. Receipt by the Executive of the Company's notice
that it intends to terminate him other than for Cause and
prior to the end of a particular Term of employment, whether
Initial or Successor.
For purposes of clause iv. above, a "CHANGE IN THE CONTROL OF THE
COMPANY" shall mean (A) the acquisition, directly or indirectly, after
the date hereof, by any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as in effect on
the date hereof), of voting power over voting shares of the Company
that would entitle the holder(s) thereof to cast at least 40% of the
votes that all shareholders would be entitled to cast in the election
of directors of the Company, provided that such term shall not be
deemed to apply to an acquisition by one or more institutional
underwriters directly from the Company in accordance with the
conditions of a registration statement theretofore filed with and
declared effective by the United States Securities and Exchange
Commission; (B) the failure, at any time during any period of two
consecutive years occurring within the Term of this Agreement
(inclusive of both Initial and Successor), of the individuals who at
the beginning of such period shall constitute the Company's Board of
Directors to constitute at least a majority of such membership, unless
the election of each director who is not a director at the beginning of
such period shall have been approved in advance by directors
representing at least 75% of the directors then in office who are
directors at the beginning of the period; (C) approval by the Company's
shareholders of any form of merger or consolidation other than (i) one
in which the voting securities of the Company outstanding immediately
prior thereto continue to represent or are converted into securities of
the surviving entity which represent at least 50% of the combined
voting power of the Company or such entity, or (ii) one effected to
implement a recapitalization of the Company in which no person acquires
more than 50% of the combined voting power of the Company's then
outstanding securities; or (D) approval by the Company's shareholders
of a plan of the Company's complete liquidation or a sale by the
Company of substantially all of its assets.
In the event of a Good Reason termination by the Executive
within the Initial Term, the Executive shall be entitled to receive
from the Company, on the first day of each succeeding month within such
Term, one-twelfth of his then existing Base Compensation, or, if
greater, the same amount for each of the succeeding 12 months, and if
such a termination is effected during a Successor Term he shall be
entitled to receive one-twelfth of his then existing Base Compensation
for each of the succeeding 12 months; or, at the Executive's option,
exercisable at the time he notifies the Company of his intention to
effect a Good Reason Termination, he may elect to receive all amounts
due him in a single lump sum payment, discounted to their then present
value at an annual discount rate of 8%. Under either circumstance, the
Executive shall also be entitled to exercise the Option within the
succeeding one year period as to any Shares which shall have been
available for acquisition in accordance with Section 5 at the time of
such termination. Except for such cash payments or continuing
entitlement to compensation following any such termination, and except
for any salary and benefits accrued, vested and unpaid as of the date
of any such termination, the Executive no longer shall be entitled to
receive any payments or any other rights or benefits under this
Agreement, and the Company shall have no further obligation hereunder
to the Executive following any such termination.
f. TERMINATION BY THE EXECUTIVE FOR OTHER THAN GOOD REASON.
The Executive may terminate his employment hereunder upon the
expiration of the Initial Term or any Successor Term, provided that
notice of termination is provided as set forth in Section 1. In the
event of such termination, the Executive shall be entitled to receive
any salary and benefits accrued, vested and unpaid as of the date of
any such termination and any benefits to which the Executive may be
entitled under and in accordance with the terms of any employee benefit
plan, policy or program maintained by the Company; and following his
receipt of such salary and benefits the Company shall be under no
further obligation hereunder to the Executive and the Executive no
longer shall be entitled to receive any payments or any other rights or
benefits under this Agreement.
g. LIFE AND DISABILITY INSURANCE COVERAGE. If termination of
employment is due to any reason other than death or for Cause, the
Company shall, for the lesser of the (i) two year period measured from
the date of termination, or (ii) the period preceding the date as of
which the Executive obtains comparable coverage from a successor
employer, continue to provide Executive, at Company expense, with the
highest level of health insurance benefits to which he shall have been
entitled during the period of his employment by the Company hereunder,
and he shall have the additional right (but not the obligation) to
purchase any policy of insurance on his life or insuring against his
disability which is then owned by the Company, the exercise of which
right shall be made by notice furnished to the Company within 30 days
subsequent to the date of termination. The purchase price of each
policy of life insurance shall be the sum of its interpolated terminal
reserve value (computed as of the closing date) and the proportional
part of the gross premium last paid before the closing date which
covers any period extending beyond that date; or if the policy to be
purchased shall not have been in force for a period sufficient to
generate an interpolated terminal reserve value, the price shall be an
amount equal to all net premiums paid as of the closing date. The
purchase price of each disability income policy shall be the sum of its
cash value and the proportional part of the gross premium last paid
before the closing date which covers any period extending beyond that
date. The purchase of any insurance policy by the Executive shall be
closed as promptly as may be practicable after the giving of notice, in
no event to exceed 30 days therefrom.
h. EXCISE TAX INDEMNITY. In the event that any payment to
the Executive under Section 8e is subject to any federal or state
excise tax, the Company shall pay the Executive an additional amount
equal to the excise tax imposed, including additional federal and state
income and excise taxes as a result of the payments under this
paragraph, and such payments will be due contemporaneously with the due
date of the identified excise and/or income taxes. Whether an excise
tax is payable, and the amount of the excise tax and additional income
taxes payable, shall be determined by the Company's accountants and the
Company shall hold the Executive harmless from any and all taxes,
penalties and interest that may become due as a result of the failure
to properly determine that an excise tax is payable or the correct
amount of the excise tax and additional income taxes, together with all
legal and accounting fees reasonably incurred by the Executive in
connection with any dispute with any tax authority with respect to such
determinations and/or payments.
i. RETENTION OF COMPANY PROPERTY. Upon the Executive's
termination of service for any reason other than Cause he shall be
entitled to retain possession of any mobile telephone and notebook
computer that shall have been issued to him by the Company in the
course of his employment hereunder, provided that the Executive shall
be responsible for the satisfaction of all license fees and other
payments, and for the performance of any other obligations, owing by
the Company subsequent to the date of such termination under any
service contract applicable to any such property so retained. The
Company acknowledges that certain of the Executive's Company office
furnishings are the property of Executive the ownership and possession
of which shall be retained by the Executive following his termination
of employment hereunder.
j. NON-DISPARAGEMENT. Following the termination of this
Agreement for any reason, neither of the Company nor the Executive
shall, except as otherwise required by applicable securities law, stock
exchange listing agreement, or other applicable law or regulation, make
any disparaging or derogatory statements regarding the other in any
communication likely to become public.
9. MISCELLANEOUS PROVISIONS.
----------------------------
a. NOTICE. All notices, consents, approvals, joinders,
waivers and other communications required or permitted under this
Agreement (each a "COMMUNICATION") shall be in writing and shall be
personally delivered or sent by facsimile machine (with a confirmation
copy sent by one of the other methods authorized in this Section),
commercial courier or United States Postal Service overnight delivery
service, or, deposited with the United States Postal Service and mailed
by first class, registered or certified mail, postage prepaid, if to
the Company to the attention of its chief executive officer, and if to
either party in care of the address set forth in preamble hereto, or to
such other address as either shall have provided notice to the other in
the manner herein permitted. Each such Communication shall be deemed
given upon the earlier to occur of (i) actual receipt by the party to
whom such Communication is directed; (ii) if sent by facsimile machine,
on the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such Communication is directed) such
Communication is sent if sent (as evidenced by the facsimile confirmed
receipt) prior to 5:00 p.m. Eastern Time and, if sent after 5:00 p.m.
Eastern Time, on the day (other than a Saturday, Sunday or legal
holiday in the jurisdiction to which such Communication is directed)
after which such Communication is sent (subject in each case to the
above-referenced confirmation copy being timely furnished); (iii) on
the first business day (other than a Saturday, Sunday or legal holiday
in the jurisdiction to which such Communication is directed) following
the day the same is deposited with the commercial carrier if sent by
commercial overnight delivery service; or (iv) the fifth day (other
than a Saturday, Sunday or legal holiday in the jurisdiction to which
such Communication is directed) following deposit thereof with the
United States Postal Service as aforesaid. Each party, by notice duly
given in accordance therewith may specify a different address for the
giving of any Communication hereunder.
b. NO ASSIGNABILITY. Each of the provisions and agreements
herein contained shall be binding upon and enure to the benefit of the
respective parties hereto, as well as their personal representatives,
devisees, heirs, successors, transferees or Beneficiaries, as
applicable, but no statement contained herein is intended to confer
upon any person or entity, other than the parties hereto and their
successors in interest, Beneficiaries and permitted assignees, any
rights or remedies under or by reason of this Agreement unless so
stated to the contrary. No right under this Agreement shall be
assignable nor any duty delegable by any party, except as expressly
authorized in this Agreement, without the prior consent of the other
party.
c. ENTIRE AGREEMENT. This Agreement, and any other document
referenced herein, constitute the entire understanding of the parties
hereto with respect to the subject matter hereof, and no amendment,
modification or alteration of the terms hereof shall be binding unless
the same be in writing, dated subsequent to the date hereof and duly
approved and executed by each of the parties hereto.
d. SEVERABILITY. If any term or other provision of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in any particular respect or
under any particular circumstance, such term or provision shall
nevertheless remain in full force and effect in all other respects and
under all other circumstances, and all other terms, conditions and
provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner, to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.
e. APPLICATION OF FLORIDA LAW. This Agreement, and the
application or interpretation thereof, shall be governed exclusively by
its terms and by the laws of the State of Florida. Venue for any legal
action which may be brought hereunder shall be deemed to lie in
Hillsborough County, Florida.
f. HEADINGS, GENDER, NUMBER. The headings of this Agreement
are inserted for convenience and identification only, and are in no way
intended to describe, interpret, define or limit the scope, extent or
intent hereof. Words of gender used herein may be read as masculine,
feminine, or neuter, as required by context, and words of number may be
read as singular or plural, as similarly required.
g. NO WAIVER OF BREACH. No failure or delay by either party
to exercise any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise of such right, power or
privilege.
h. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, by means of multiple signature pages each
containing less than all required signatures, and by means of facsimile
signatures, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
i. LEGAL FEES AND COSTS. If a legal action is initiated by
any party to this Agreement against another, arising out of or relating
to the alleged performance or non-performance of any right or
obligation established hereunder, or any dispute concerning the same,
any and all fees, costs and expenses reasonably incurred by each
successful party or his or its legal counsel in investigating,
preparing for, prosecuting, defending against, or providing evidence,
producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of and shall be paid
or reimbursed by the unsuccessful party(ies).
j. BENEFICIARY. As used herein, the term "BENEFICIARY" shall
mean the person or persons (who may be designated contingently or
successively and who may be an entity other than an individual,
including an estate or trust) designated on a written form prescribed
by the Board of Directors to receive the expiration of Agreement or
death benefits described in Section 8 above. Each Beneficiary
designation shall be effective only when filed with the Secretary of
the Company during the Executive's lifetime. Each Beneficiary
designation filed with the Secretary will cancel all designations
previously so filed. If the Executive fails to properly designate a
Beneficiary or if the Beneficiary predeceases the Executive or dies
before complete distribution of the benefit has been made, the Company
shall distribute the benefit (or balance thereof) to the Executive's
surviving spouse, if any, or otherwise to his probate estate.
k. ADJUSTMENTS. In the event of any change in the Common
Stock of the Company by reason of a stock dividend or forward or
reverse stock split that affects the Option or the ability of the
Executive to exercise his Option rights, granted under Section 5 above,
in accordance with the terms of this Agreement (each a "TRANSACTION"),
the number of Shares made the subject of the Option, the price at which
each such Share is subject to purchase by the Executive, and/or the
target Closing Prices required for exercisability shall be adjusted
appropriately to insure that the Shares will be subject to acquisition
by the Executive at a price and upon terms commensurate to those herein
set forth. The Company shall be required to notify the Executive
promptly following its approval of each Transaction and to provide the
Executive with a statement describing how the proposed Transaction will
affect his Option rights and what adjustment is being made to offset
such affect.
IN WITNESS WHEREOF, the parties have executed this Agreement.
800 TRAVEL SYSTEMS, INC.
By:/S/ Xxxx Xxxxxxxx
--------------------
Xxxx Xxxxxxxx, Chief Executive Officer
EXECUTIVE
/S/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
SCHEDULE I
BASE COMPENSATION INCREASE CALCULATION
In effecting increases to the Executive's Base Compensation, as
contemplated by Section 3 of the Agreement, the following provisions shall
apply:
The Base Compensation payable to the Executive within each 12 month
period initiated by an anniversary of this Agreement shall be an amount which
bears the same ratio to $174,000 as the monthly Index figure published for the
August immediately preceding the occurrence of such anniversary bears to the
Base Period Index figure, where "INDEX" refers to the Consumer Price Index for
Urban Wage Earners and Clerical Workers - U.S. City Average, All Items, 1967
Base, as presently promulgated by the United States Department of Labor, Bureau
of Labor Statistics, and "BASE PERIOD INDEX" refers to the Index figure
published for the month of August 1999. As an example of the manner in which
such periodic income is to be calculated, assume that the published Base Period
Index figure is 248.2 and that the published Index figure for August 2001 is
286.7. The Base Compensation payable to the Executive by the Company during the
12 month period commencing as of November __, 2001, rounded to the nearest whole
dollar, would consequently be calculated as follows:
Base Compensation Base Compensation August
for applicable 12 = in initial 12 month x 2001
month period (X) period of Agreement Index
($174,000) FIGURE (286.7)
-------------------------------------------------
Base Period Index figure (248.2)
X = $174,000 X 286.7
----------------
248.2
X = $200,990
If at any time the Index is adjusted to reflect a Base subsequent to
1967 to which prices are compared, the parties shall be required to make such
further adjustments to the published Index figures as may be necessary to insure
that they bear an accurate relationship to the Base Period Index designated
herein. Further, if the Index is altogether discontinued at any time, the
parties shall use any other standard nationally recognized cost of living index
then available and published by the United States Department of Labor, or, if
unavailable, by the United States Department of Commerce, or, if unavailable, by
a nationally recognized publisher of economic statistics which, in the absence
of agreement by the parties on or before the applicable adjustment date, shall
be selected by the Tampa, Florida office of the independent certified public
accounting firm of Price Waterhouse Coopers or its successor.
