[▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Letterhead]
PERSONAL AND CONFIDENTIAL
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As of July 1, 2000
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Dear ▇▇▇:
This is to confirm our mutual understanding with respect to
your employment by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company"), as follows:
1. Employment; Authority. The Company hereby agrees to employ
you, and you hereby agree to be employed by the Company, on the terms and
conditions set forth in this letter. You will serve the Company as its Vice
President - Operations with all the responsibility and authority customarily
associated with such position. You also agree to perform such duties and
services, and to have such other responsibilities, as the Company's Board of
Directors may, from time to time, assign to you consistent with your position.
You hereby represent and warrant to the Company that you are not now under any
contractual obligation to any third party that is inconsistent with the terms of
this letter or that would prevent, limit or impair in any way your performance
of your duties under this letter.
2. Compensation. As full compensation for all services
provided and duties performed by you (inclusive of your services as an officer
of the Company) during your employment by the Company under the terms of this
letter, you will be entitled to receive:
a. Base Salary. A base salary (your "Base Salary") at the
rate of $150,000 per annum, effective as of the date hereof, payable
semi-monthly in accordance with the Company's normal payroll practices;
provided, that the rate of Base Salary is subject to annual merit increases,
based on individual performance and the Company's annual compensation guidelines
as determined by the compensation committee of the Company's Board of Directors
(the "Compensation Committee").
b. Annual Bonus. An annual bonus (your "Annual Bonus")
determined by the Compensation Committee. You shall participate in the
compensation package, including, without limitation, any bonus plan(s), offered
to executives of the Company as approved by the Compensation Committee;
provided, however, that your target award (as determined by the Compensation
Committee) for the purposes of your Annual Bonus shall be 50% of your Base
Salary for such year. If the scheduled term (as defined in Section 4 below) does
not expire at the end of the Company's fiscal year, your target award for the
purposes of the Annual Bonus for the year in which the scheduled term so expires
shall be an amount equal to the product of (x) the Annual Bonus that you would
have received had the scheduled term expired at the end of such year and (y) a
fraction, the numerator of which is the number of months from the beginning of
such year until the actual expiration of the scheduled term, and the denominator
of which is 12.
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c. Options. In addition to the compensation described
herein, on ________, 2000 you were issued options to acquire 750 shares of the
Company's Common Stock, par value $.01 each, at an exercise price per share of
$71.84. Such options are subject to the terms of the Company's option plan as
well as the terms of any option grant notice or any similar document to that
effect.
d. Benefits. During your employment hereunder, you shall be
entitled to all benefits generally available to the Company's executives and for
which you may qualify, inclusive of hospitalization and major medical insurance,
health and disability insurance, pension plans or benefits, any supplemental
retirement plans or benefits and any perquisites that are generally made
available to executives of the Company. All benefits and perquisites to which
you are entitled pursuant to this paragraph are sometimes referred to herein as
your "Benefits".
e. Certain Changes. While the Company retains the right to
change, eliminate, discontinue or substitute any plan, program or benefit, or
any provision thereof, the Company agrees with you that upon any such change,
elimination, discontinuation or substitution there will be a replacement plan,
program or benefit under the terms of which you will have no less of an
opportunity to receive an equal or greater benefit than as currently provided;
provided, however, that no such change, elimination, discontinuation or
substitution will (x) reduce your Base Salary or Annual Bonus or (y) eliminate
or reduce any sums that have been granted to you or that you are otherwise
entitled to receive (but have not yet been paid) on the date that any such
change, elimination, discontinuation or substitution becomes effective.
f. Tax Reporting. All payments made to you pursuant to this
letter (whether specified in this Section 2 or not) are subject to all
applicable tax withholding by the Company. In addition, you acknowledge and
agree that all payments to be made to you as Base Salary, as Annual Bonus or
otherwise under this letter shall, to the extent required by law, be reported
for all tax purposes as compensation for services rendered, and you shall not
state or claim any different position in any tax return or report (or any audit
thereof).
3. Expenses. During your employment hereunder, the Company
will reimburse you for your travel and other expenses incident to your providing
services and performing duties under this letter, in conformity with the
Company's regular policies from time to time in effect regarding reimbursement
of expenses, with the proviso that such reimbursement will only be made upon
presentation of expense vouchers in such detail as may from time to time be
necessary for the Company to comply with all applicable tax and accounting
requirements.
4. Term.
a. The term of your employment under this letter commenced
on July 1, 2000 and shall continue until June 30, 2003 or such other date as may
be determined in accordance with Section 4.b. below (the "scheduled term"),
unless earlier terminated by reason
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of death, Disability (as defined below), termination by you after the occurrence
of a Change in Opportunity (as defined below) or otherwise or termination by the
Company (with or without Cause (as defined below))(in each case, and subject to
any provisions in this Section 4 or in Section 5, upon no less than 30 days'
prior written notice).
b. At any time no more than six months and no less than
three months prior to the termination of the then current scheduled term (as
such may have been extended) you or the Company may notify each other, in
writing, of a lack of intention to extend the term of your employment by the
Company under this letter beyond the then current scheduled term, in which case
your employment by the Company under this letter shall end upon the expiration
of the scheduled term. In the absence of such notice, at the end of the then
current scheduled term, the scheduled term under this letter will be
automatically extended by twelve months.
5. Consequences of Termination.
a. Death or Disability. Anything herein to the contrary
notwithstanding, if your employment under this letter is terminated early (i.e.,
before expiration of the scheduled term) by reason of your death or your
Disability (as defined below), you (or your estate, as the case may be) shall be
entitled to receive your Base Salary and all other amounts owing to you in
respect of your services under this letter through the date of such termination
(including, without limitation, your Annual Bonus for the calendar year in which
such termination occurs, pro-rated to reflect the portion of such year elapsed
through the date of such termination (and based on target amounts (the pro-rata
portion of which shall be determined by the Compensation Committee), not actual
performance)) and any Benefits that by their terms continue thereafter), but the
Company shall have no further liability or obligation whatsoever to you
hereunder.
b. Termination without Cause. If your employment under this
letter is terminated early (i.e., before expiration of the scheduled term) by
the Company without Cause or by you voluntarily within 90 days after the
occurrence of a Change in Opportunity (as defined below), you shall be entitled,
in lieu of any other or further compensation of any kind from the Company (other
than your vested rights in any retirement, life insurance, disability insurance
or other pension or benefit plan of the Company), to receive severance (your
"Severance") consisting of:
(1) Continued payment of your Base Salary (at the rate
in effect hereunder immediately prior to the termination) through the expiration
of the scheduled term, payable as and when it would otherwise have been paid had
you continued in the Company's employ;
(2) Continued payment of your Annual Bonus in an annual
amount equal to your maximum Annual Bonus (i.e., 50% of your Base Salary as in
effect immediately prior to your termination) through the expiration of the
scheduled term, such amount to be payable within 30 days after the end of each
year as to which such Annual Bonus
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as of July 1, 2000
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is determined, with payment for the final period (i.e., the period ending with
the expiration of the scheduled term, to be made in accordance with the pro
ration provision in the last sentence of Section 2.b. hereof);
(3) Your Benefits (to the extent permitted by applicable
law and the terms of any applicable plans, in each case as if you continued as
an active employee or, if the Company is not able to provide any such Benefit to
you, the economic equivalent thereof) until the expiration of the scheduled
term; and
(4) You shall retain all options to purchase stock of
the Company which you shall hold at such time and are exercisable at such time.
Such options may be exercised by you at any time until 90 days after the
termination of your employment with the Company; and
In the event that the termination of your employment pursuant to this Section
5.b. is initiated by the Company, your employment shall not be deemed to have
been terminated pursuant to this Section 5.b. unless there shall have been
delivered to you a copy of a notice of termination from the Company (no less
than 30 days prior to the effective date of such termination, or, in the event
of non-extension of the scheduled term as provided in Section 4.b. as described
therein) providing, in reasonable detail, a description of the reasons therefor,
and unless you have had an opportunity, together with your counsel, to be heard
before the Company's Board of Directors.
[You shall not be required to mitigate the amount of Severance due to you
hereunder by seeking employment or otherwise, nor shall any amounts received by
you from other employment or otherwise by you offset in any manner the Company's
obligation to provide such Severance.]
c. Termination with Cause. If your employment under this
letter is terminated by the Company with Cause, the Company shall (without
limiting any right or remedy to which it may be entitled) be obligated to
continue to pay you your Base Salary, Annual Bonus (except that you shall be
entitled to receive your Annual Bonus for the year in which the effective date
of your termination occurs on a pro rata basis (as such is determined by the
Compensation Committee), based on actual performance), Benefits or any other
amounts provided herein until the effective date of such termination, but shall
have no further liability or obligation whatsoever to you hereunder; provided,
that nothing in this provision shall be interpreted so as to limit any Benefits
to which you or your dependents or estate are entitled according to the specific
terms of any applicable employee benefit plan, program or practice after such
termination of your employment.
d. Termination by You. If your employment under this letter
is terminated early by you (other than voluntarily within 90 days after the
occurrence of a Change in Opportunity (as defined below) in accordance with
Section 5.b. of this letter), the Company shall (without limiting any right or
remedy to which it may be entitled) be obligated to continue to pay you your
Base Salary, Benefits and any other amounts provided herein until the effective
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as of July 1, 2000
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date of such termination, but shall have no further liability or obligation
whatsoever to you hereunder; provided, that nothing in this provision shall be
interpreted so as to limit any Benefits to which you or your dependents or
estate are entitled according to the specific terms of any applicable employee
benefit plan, program or practice after such termination of your employment.
6. Certain Definitions. For purposes of this letter, the
following definitions shall apply:
"Cause" means: (i) willful and repeated failure or
refusal to perform your duties; (ii) embezzlement or similar criminal
misappropriation of Company funds; (iii) conviction of a crime
constituting a felony that will have a material adverse effect on the
Company; or (iv) a material breach of any term of this letter;
provided, in each case, that your employment shall not be deemed to
have been terminated for Cause unless (x) you shall have been provided
a notice from the Company's Board of Directors no less than 30 days
prior to the effective date of such termination stating that any event
that had occurred or, in the event of clause (iii) above, that will
occur, constitutes Cause and that the Board of Directors intends to
terminate your employment for Cause pursuant to Section 5.c hereof and
describing in reasonable detail, the reasons therefor, and (y) you have
had both an opportunity to cure such Cause and, together with your
counsel, to be heard before the Company's Board of Directors during
such 30-day period.
"Change in Opportunity" means, without your express
written consent, any of the following:
(i) the assignment to you of any duties materially
inconsistent with your position, authority, duties or responsibilities
as contemplated hereby, or any other action by the Company that results
in a material diminution of such position, authority, duties or
responsibilities;
(ii) the Company's requirement that you move your
personal residence or perform your principal executive functions
outside of Manhattan;
(iii) the Company's requirement that you report to an
executive other than the Chairman or the Company's Board of Directors;
or
(iv) the failure of the Company to provide you with a
total compensation package substantially equivalent to that set forth
in this letter or any other material breach by the Company of the terms
herein;
provided,in each case, that you shall not be deemed to have terminated
your employment for "Change of Opportunity" unless there shall have
been delivered to the Company a copy of a notice of termination from
you (no less than 30 days prior to the effective date of such
termination) providing, in reasonable detail, a description of the
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as of July 1, 2000
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reasons therefor, and unless the Company shall have had an opportunity
to cure any events causing such Change of Opportunity.
"Disability" means your inability to perform your
duties in any material manner by reason of physical or mental
disability for a period of six consecutive months, or for a period of
more than nine months in the aggregate in any twelve-month period.
7. Non Competition; Non Solicitation. You agree that, without
the prior express written consent of the Company's Board of Directors, you shall
not, during your employment hereunder, and, if you voluntarily terminate your
employment hereunder (other than termination pursuant to Section 6.b. herein) or
if your employment hereunder is terminated by the Company for Cause, for 24
months after such termination: (i) directly or indirectly, employ or hire as a
consultant or solicit for employment or consulting, any officer or other
employee of the Company; or (ii) enter into or accept an employment position or
any other situation or arrangement with an organization or person or establish
an entity that markets or sells distressed and excess airline, hotel and other
travel services.
8. Confidentiality. You acknowledge that you now have and will
have access to and become acquainted with proprietary and confidential
information regarding the Company and its customers that constitute valuable
assets of the Company and that is not available to the public. Accordingly, you
agree that you will not during the term of this letter or at any time
thereafter, directly or indirectly, (i) use or disclose such information, except
as is necessary and appropriate in connection with the rendering by you of
services to the Company under this letter, or (ii) make, or cause to be made,
any statement or publication about or concerning the Company or its shareholders
(or any fiduciary or beneficiary of any shareholder that is a trust or an
estate) which you reasonably believe not to be in the best interests of, or
necessary for the proper conduct of the businesses of, the Company or its
shareholders (or any fiduciary or beneficiary of any shareholder that is a trust
or an estate), other than statements or publications that are consistent with
your supervision of the corporate communication function of the Company as it
relates to your duties or that you reasonably believe to be necessary to protect
and enforce your rights under this letter. Nothing herein is intended to limit
or affect any responsibility you may have under any generally applicable policy,
practice or procedure of the Company.
9. No Disclosure. The financial arrangements contemplated
hereby are sensitive and highly confidential, and, so long as you remain
employed by the Company, you will not use, disclose or make any public
announcement regarding such financial arrangements without the prior written
consent of the Company (by its Board of Directors or its chairman), except: (i)
as may be required by applicable law; (ii) disclosure in connection with your
own personal tax or financial affairs; or (iii) as may be required in order to
enforce any term or provision hereof.
10. Injunctive Relief. You acknowledge and agree that if any
provision of Section 8, 9 or 10 hereof is violated, the Company will immediately
and irreparably be harmed, will not have an adequate remedy at law and will be
entitled to immediate relief enjoining such
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violation or threatened violation (including without limitation temporary and
permanent injunctions and/or a decree for specific performance) in any court or
judicial body having jurisdiction over such claim, without the necessity of
showing any actual damage or posting any bond or furnishing any other security,
and without having to pursue any arbitration as provided below.
11. Arbitration; Legal Fees. Any dispute that may arise
between you and the Company in connection with your employment hereunder,
including, without limitation, the terms or interpretation of this letter as
they relate to the existence of Cause, Change in Opportunity and the terms
concerning termination of employment upon such events, either during or
following termination of your employment hereunder shall be submitted to
arbitration before three arbitrators in the City of New York under the then
applicable rules of the American Arbitration Association. Judgment on any award
rendered may be entered in any court of the forum having jurisdiction. If the
arbitrators find that the Company has breached the substantive terms of this
letter and the Company in doing so acted capriciously, maliciously, or in bad
faith, then the Company shall pay for all of your costs and expenses, including
reasonable attorney's fees, arising from such proceeding.
12. Miscellaneous.
a. Notice. All notices and other communications provided
for hereunder shall be in writing (including by telex or facsimile transmission)
and mailed or sent or delivered at the addresses specified below. All such
notices and communications shall be given by hand, telex or facsimile
transmission; provided that, in the event that telex and facsimile transmission
facilities are not operational, such notices and communications may be given by
mail, but the sender shall use reasonable efforts to confirm facsimile
transmission facilities shall become operational. All such notices and
communications shall be effective when delivered by hand, or, in the case of
mail, upon the earlier of receipt and confirmation by telex or facsimile
transmission as provided below, or, in the case of facsimile transmission, when
sent as addressed as set forth herein and confirmation of delivery is received,
or, in the case of telex, when the telex is sent and the appropriate answer back
is received. The address for you is set forth in the beginning of this letter.
The address for the Company is as follows:
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
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14th Floor
New York, NY 10022
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chairman
with copies to:
Proskauer Rose LLP
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New York, New York 10036-8299
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as of July 1, 2000
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Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Each party to this letter may, from time to time, change its notice address or
copy address or add or substitute a copy party and a copy address, by giving
notice to the other party in the manner provided in this paragraph.
b. Entire Agreement. This letter (inclusive of any annex
hereto) contains the entire understanding and agreement of the parties with
respect to the subject matter hereof, and all prior negotiations, proposals and
agreements (whether written or oral) between them (or their respective
affiliates) relating to the subject matter hereof have, to the extent relating
to such subject matter, been superseded hereby. No agreements or representations
(whether oral or otherwise, express or implied) that are not expressly set forth
in, but that relate to the subject matter of, this letter have been made by
either party.
c. Amendment; Waiver. Neither this letter nor any provision
hereof may be amended or modified except in a writing signed by the party
against which enforcement of such amendment or modification is sought. No
failure or delay of any party in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
any such right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of each party
under this letter are, unless otherwise specifically provided herein, cumulative
and not exclusive of any rights or remedies that such party may otherwise have.
No waiver by either party of any provision of this letter nor any consent by
either party to any departure by the other party from any provision of this
letter shall in any event be effective unless the same shall be in writing (by
the party against which enforcement of such waiver or consent is sought), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which it was given. No notice or similar
communication by one party to the other shall entitle such other party to any
other or further notice or similar communication in similar or other
circumstances, except as specifically provided herein.
d. Severability. If any one or more of the provisions of
this letter shall be invalid, illegal or unenforceable in any respect, it shall
be ineffective only to the extent of such invalidity, illegality or
unenforceability, and shall not in any way affect or impair the validity,
legality and enforceability of the balance of such provision or any other
provision contained herein. Each party shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provision(s) (or such portion
thereof) with such valid, legal and enforceable provision(s), the economic
effect of which on the respective parties is as close as possible to that of the
invalid, illegal or unenforceable provision(s).
e. Successors and Assigns. This letter shall be binding
upon and inure to the benefit of the respective successors and permitted assigns
of the parties hereto; provided, that no party may, without the prior written
consent of the other, assign, transfer or
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as of July 1, 2000
page 9
delegate this letter or any of such party's rights or obligations hereunder
(whether directly or indirectly, by operation of law or otherwise) to any other
person, firm or entity.
f. Rights of Third Parties. Anything in this letter to the
contrary notwithstanding, no person, firm or entity shall be entitled to the
benefit of, or to enforce, any provision hereof other than the parties hereto
(and their heirs, permitted successors and assigns).
g. Survival. The respective rights and obligations of you
and the Company as provided herein shall survive the termination or expiration
hereof to the extent necessary to the intended preservation of such rights and
obligations.
h. Governing Law. This letter shall be construed and
interpreted according to the laws of the State of New York, without reference to
such State's principles governing conflicts of laws.
i. Headings. The headings used herein are for convenience
of reference only, are not part of this letter and are not intended to affect
the construction, or to be taken into account in the interpretation, of this
letter.
j. Counterparts; Effect. This letter may be signed in
counterparts with the same effect as if the signatures were all upon the same
instrument; provided, that no party shall be bound hereto unless and until all
parties have executed and delivered this letter (or a counterpart).
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as of July 1, 2000
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Please confirm your agreement with the foregoing by signing
and returning to us at least two copies of this letter.
Sincerely,
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive
Officer
AGREED TO AND ACCEPTED:
/s/ ▇▇▇ ▇▇▇▇▇
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