EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 23rd day of December, 1998,,
to be effective January 6, 1999, is by and between Navigant International, Inc.,
a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxxxx ("Employee").
RECITALS
The Company desires to employ Employee and to have the benefit of his
skills and services, and Employee desires to obtain employment with the Company,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein, and the performance of each, the parties
hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. Employment; Term. The Company hereby employs Employee to perform the
duties described herein, and Employee hereby accepts employment with the
Company, for a term beginning on the effective date hereof and continuing for a
period of two (2) years (the "Initial Term"). The term of this Agreement may be
extended beyond the Initial Term for one additional successive one-year term at
the option of the Company. If the Company intends to extend the term for an
additional one-year period, it shall notify Employee no less than 60 days prior
to the end of the Initial Term. The Initial Term, together with any renewal
periods shall be referred to in this Agreement as the "Term." In addition to
termination in the event of a decision of nonrenewal by the Company, this
Agreement may be terminated prior to the end of the Term in the manner provided
for in Section 6 below.
2. Position and Duties. The Company hereby employs Employee as Vice
President of Information Systems. As such, Employee shall have responsibilities,
duties and authority reasonably accorded to and expected of an officer of the
Company or as additionally specified by the Chief Executive Officer (the "CEO")
of the Company. Employee will report directly to the CEO of the Company, or as
otherwise directed by the CEO. Employee hereby accepts this employment upon the
terms and conditions herein contained and agrees to devote all of his
professional time, attention, and efforts to promote and further the business of
the Company. Employee shall faithfully adhere to, execute, and fulfill all
lawful policies established by the Company.
3. Compensation. For all services rendered by Employee, the Company shall
compensate Employee as follows:
(a) Base Salary. Effective on the date hereof, the base salary
payable to Employee shall be $150,000.00 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures, but not less than
monthly. On at least an annual basis, the Board will review Employee's
performance and may make increases to such base salary if, in its sole
discretion, any such increase is warranted. The Company will also review the
Employee's base salary upon the promotion of the Employee to Chief Information
Officer, as described in paragraph 3(d) below.
(b) Perquisites, Benefits, and Other Compensation. During the Term,
Employee shall be entitled to receive all perquisites and benefits as are
customarily provided by the Company to its officers, subject to such changes,
additions or deletions as the Company may make generally from time to time, as
well as such other perquisites or benefits as may be specified from time to time
by the Board. Without limiting the foregoing, the Employee shall be allowed to
take up to twenty (20) paid vacation days per year and five (5) paid sick days
per year. In addition, the Employee will be eligible for an award of 25,000
options to purchase the Company's common stock under the Company's 1998 Stock
Incentive Plan.
(c) Bonuses. The Employee shall be paid a $20,000.00 signing bonus
upon his first day of work. Upon the first anniversary of the his employment,
the Employee shall be eligible for a guaranteed minimum merit-based bonus of
fifteen percent (15%) of his base salary, and an additional discretionary,
merit-based bonus of thirty-five percent (35%) of his base salary. For the
balance of the Initial Term, and any renewal terms, the employee shall be
eligible for performance or other bonuses generally offered to officers of the
Company.
(d) Promotion to Chief Information Officer. The Company will promote
the Employee to Chief Information Officer upon the Employee's successful
completion of all the following:
1) Development of an IT business plan for the company, including an
analysis of the Company's and its subsidiaries' (the "Combined
Companies") current status (including a report on the strengths
and weaknesses in the Combined Companies' IT infrastructure and
systems), an examination and discussion of relevant industry
trends, and formulation of an information technology plan for the
Combined Companies. The IT business plan will be complete no later
than 120 days after the Employee begins employment.
2) Substantial completion of the integration/consolidation of the
accounting and reporting functions of the Combined Companies by
12/31/99.
3) Substantial completion of the deployment of a secure data
communications network for the Combined Companies by 12/31/99.
The determination whether each of the foregoing has been successfully
completed shall be made by the Company's Chief Financial Officer and its
Executive Vice President of Marketing and
Technology. Upon the successful completion of the IT business plan described in
paragraph 3(d)(1), the Employee will eligible for an additional bonus of
$10,000.00.
4. Expense Reimbursement. The Company shall reimburse Employee for (or,
at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by an officer of the Company in the performance of
his services hereunder during the Term. All reimbursable expenses shall be
appropriately documented in reasonable detail by Employee upon submission of any
request for reimbursement, and in a format and manner consistent with the
Company's expense reporting policy, as well as applicable federal and state tax
record keeping requirements.
5. Place of Performance. Employee understands that he may be requested by
the Company to relocate from his present residence to another geographic
location in order to more efficiently carry out his duties and responsibilities
under this Agreement or as part of a promotion or a change in duties and
responsibilities. In such event, if Employee agrees to relocate, the Company
will provide Employee with a relocation allowance, in an amount determined by
the Company, to assist Employee in covering the costs of moving himself, his
immediate family, and their personal property and effects. The total amount and
types of costs to be covered shall be determined by the Company, in light of
prevailing Company policy for officers of the Company at the time.
6. Termination: Rights on Termination. Employee's employment may be
terminated in any one of the following ways, prior to the expiration of the
Term:
(a) Death. The death of Employee shall immediately terminate the
Term, and no severance compensation shall be owed to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or
mental illness or injury, Employee shall have been unable to perform the
material duties of his position on a full-time basis for a period of four (4)
consecutive months, or for a total of four (4) months in any six (6) month
period, then thirty (30) days after written notice to the Employee (which notice
may be given before or after the end of the aforementioned periods, but which
shall not be effective earlier than the last day of the applicable period), the
Company may terminate Employee's employment hereunder if Employee is unable to
resume his full-time duties at the conclusion of such notice period. Subject to
Section 6(f) below, if Employee's employment is terminated as a result of
Employee's disability, the Company shall continue to pay Employee his base
salary at the then-current rate for the lesser of (i) three (3) months from the
effective date of termination, or (ii) whatever time period is remaining under
the then-current period of the Term (without regard ot renewals thereof). Such
payments shall be made in accordance with the Company's regular payroll cycle.
(c) Termination by the Company "For Cause." The Company may
terminate the Term promptly after written notice to Employee "for cause," which
shall be: (i) Employee's material breach of this Agreement, which breach is not
cured within fifteen (15) days of receipt by Employee of written notice from the
Company specifying the breach; (ii) Employee's gross negligence in the
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performance of his duties hereunder, intentional nonperformance or
misperformance of such duties, or refusal to abide by or comply with the
directives of the Board, his superior officers, or the Company's policies and
procedures, which actions continue for a period of at least ten (10) days after
receipt by Employee of written notice of the need to cure or cease; (iii)
Employee's willful dishonesty, fraud, or misconduct with respect to the business
or affairs of the Company, and that in the judgment of the Company materially
and adversely affects the operations or reputation of the Company; (iv)
Employee's conviction of a felony or other crime involving moral turpitude; or
(v) Employee's abuse of alcohol or drugs (legal or illegal) that, in the
Company's judgment, materially impairs Employee's ability to perform his duties
hereunder. In the event of termination "for cause," as enumerated above,
Employee shall have no right to any severance compensation.
(d) Without Cause. At any time after the commencement of employment,
the Company may, without cause, terminate the Term and Employee's employment,
effective thirty (30) days after written notice is provided to the Employee.
Should Employee be terminated by the Company without cause, subject to Section
6(f) below, Employee shall receive from the Company the base salary at the rate
then in effect for the longer of (i) three (3) months from the date of
termination, or (ii) whatever time period is remaining under the then-current
period of the Term (without regard to renewals thereof). Such payments shall be
made in accordance with the Company's regular payroll cycle. In addition,
options to purchase the Company's common stock issued under paragraph 3(b)
above, shall become fully vested upon a termination by the Company without
cause. (Solely for purposes of determining the vesting of such options, the
decision of the Company not to renew this agreement under paragraph 1 shall be
deemed a termination by the Company without cause.) If Employee resigns or
otherwise terminates his employment for any reason or for no reason, Employee
shall receive no severance compensation.
(e) Payment Through Termination. Upon termination of Employee's
employment for any reason provided above, Employee shall be entitled to receive
all compensation earned and all benefits and reimbursements (including payments
for accrued vacation and sick leave, in each case in accordance with applicable
policies of the Company) due through the effective date of termination.
Additional compensation subsequent to termination, if any, will be due and
payable to Employee only to the extent and in the manner expressly provided
above in this Section 6. All other rights and obligations of the Company, and
Employee under this Agreement shall cease as of the effective date of
termination, except that the obligations under Sections 7, 8, 9 and 10 below
shall survive such termination in accordance with their terms.
(f) Right to Offset. In the event of any termination of Employee's
employment under this Agreement, the Employee shall have no obligation to seek
other employment; provided, that in the event that Employee secures employment
or any consulting or similar arrangement during the period that any payment is
continuing pursuant to the provisions of this Section 6, the Company shall have
the right to reduce the amounts to be paid hereunder by the amount of Employee's
earnings from such other employment.
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7. Restriction on Competition.
(a) Unless otherwise agreed to in writing by the Company, during the
Term, and thereafter, if Employee continues to be employed by the Company and/or
any other entity owned by or affiliated with the Company on an "at will" basis,
for the duration of such period, and thereafter for a period equal to the longer
of (x) two years, or (y) the period during which Employee is receiving any
severance pay from the Company, Employee shall not, directly or indirectly, for
himself or on behalf of or in conjunction with any other person, company,
partnership, corporation, business, group, or other entity (each, a "Person"):
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant, advisor, or sales representative, in any
business selling any products or services in direct competition with the
Company's travel business, including the development, manufacture, marketing and
transfer, whether by sale or license, of software exclusively for use in travel
businesses (collectively, the "Travel Business"), within 100 miles of any
location where the Company conducts the Travel Business (the "Territory");
(ii) call upon any Person who is, at that time, a managerial or
information systems employee of the Company for the purpose or with the intent
of enticing such employee away from or out of the employ of the Company; or
(iii) call upon any Person who is or that is, at that time, or
has been, within one year prior to that time, a customer of the Travel Business
within the Territory for the purpose of soliciting or selling information system
products or information system services related to the provision of travel
bookings or reservations in direct competition with the Travel Business within
the Territory.
(b) In the event the Employee's employment is terminated without
cause by the Company, the foregoing covenants shall apply only during the period
in which the Employee is receiving severance pay from the Company.
(c) The foregoing covenants shall not be deemed to prohibit Employee
from acquiring as an investment not more than one (1%) percent of the capital
stock of a competing business, whose stock is traded on a national securities
exchange or through the automated quotation system of a registered securities
association.
(d) It is further agreed that, in the event that Employee shall cease
to be employed by the Company and enters into a business or pursues other
activities that, at such time, are not in competition with the Travel Business,
Employee shall not be chargeable with a violation of this Section 7 if the
Company subsequently enters the same (or a similar) competitive business or
activity or commences competitive operations within 100 miles of the Employee's
new business or activities. In addition, if Employee has no actual knowledge
that his actions violate the terms of this Section 7, Employee shall not be
deemed to have breached the restrictive covenants contained
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herein if, promptly after being notified by the Company of such breach, Employee
ceases the prohibited actions.
(e) For purposes of this Section 7, references to "the Company" shall
mean Navigant International, Inc., together with its subsidiaries and
affiliates.
(f) The covenants in this Section 7 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. If any provision of this Section 7 relating to the time
period or geographic area of the restrictive covenants shall be declared by a
court of competent jurisdiction to exceed the maximum time period or geographic
area, as applicable, that such court deems reasonable and enforceable, said time
period or geographic area shall be deemed to be, and thereafter shall become,
the maximum time period or largest geographic area that such court deems
reasonable and enforceable and this Agreement shall automatically be considered
to have been amended and revised to reflect such determination.
(g) If the time period specified by this Section 7 shall be reduced
by law or court decision, then, notwithstanding the provisions of Section 6
above, Employee shall be entitled to receive from the Company his base salary at
the rate then in effect solely for the longer of (i) the time period during
which the provisions of this Section 7 shall be enforceable under the provisions
of such applicable law, or (ii) the time period during which Employee is not
engaging in any competitive activity, but in no event longer than the applicable
period provided in Section 6 above.
(h) All of the covenants in this Section 7 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants; provided, however,
that upon the failure of the Company to make any payments required under this
Agreement, the Employee may, upon thirty (30) days' prior written notice to the
Company, waive his right to receive any additional compensation pursuant to this
Agreement and engage in any activity prohibited by the covenants of this Section
7. It is specifically agreed that the period of two (2) years stated at the
beginning of this Section 7, during which the agreements and covenants of
Employee made in this Section 7 shall be effective, shall be computed by
excluding from such computation any time during which Employee is in violation
of any provision of this Section 7.
(i) Employee has carefully read and considered the provisions of this
Section 7 and, having done so, agrees that the restrictive covenants in this
Section 7 impose a fair and reasonable restraint on Employee and are reasonably
required to protect the interests of the Company, and their respective officers,
directors, employees and stockholders. It is further agreed that the Company
and Employee intend that such covenants be construed and enforced in accordance
with the changing activities, business and locations of the Company throughout
the term of these covenants.
8. Confidential Information. Employee hereby agrees to hold in strict
confidence and not to disclose to any third-party any of the valuable,
confidential and proprietary business, financial, technical, economic, sales
and/or other types of proprietary business information relating to the
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Company's Travel Business (including all trade secrets) in whatever form,
whether oral, written, or electronic (collectively, the "Confidential
Information"), to which Employee has, or is given (or has had or been given),
access as a result of his employment by the Company. It is agreed that the
Confidential Information is confidential and proprietary to the Company because
such Confidential Information encompasses technical know-how, trade secrets, or
technical, financial, organizational, sales, or other valuable aspects of the
Company's Travel Business and trade, including, without limitation,
technologies, products, processes, plans, clients, personnel, operations, and
business activities. This restriction shall not apply to any Confidential
Information that (a) becomes known generally to the public through no fault of
the Employee; (b) is required by applicable law, legal process, or any order or
mandate of a court or other governmental authority to be disclosed; or (c) is
reasonably believed by Employee, based upon the advice of legal counsel, to be
required to be disclosed in defense of a lawsuit or other legal or
administrative action brought against Employee; provided, that in the case of
clauses (b) or (c), Employee shall give the Company reasonable advance written
notice of the Confidential Information intended to be disclosed and the reasons
and circumstances surrounding such disclosure, in order to permit the Company to
seek a protective order or other appropriate request for confidential treatment
of the applicable Confidential Information.
9. Inventions. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, that are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
year thereafter, and that are directly related to the Travel Business or
activities of the Company and that Employee conceives as a result of his
employment by the Company, regardless of whether or not such ideas, inventions,
or improvements qualify as "works for hire." Employee hereby assigns and agrees
to assign all his interests therein to the Company or its nominee. Whenever
requested to do so by the Company, Employee shall execute any and all
applications, assignments, or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
10. Return of Company Property. Promptly upon termination of Employee's
employment by the Company for any reason or no reason, Employee or Employee's
personal representative shall return to the Company (a) all Confidential
Information; (b) all other records, designs, patents, business plans, financial
statements, manuals, memoranda, lists, correspondence, reports, records, charts,
advertising materials, and other data or property delivered to or compiled by
Employee by or on behalf of the Company or their respective representatives,
vendors, or customers that pertain to the business of the Company, whether in
paper, electronic, or other form; and (c) all keys, credit cards, vehicles, and
other property of the Company. Employee shall not retain or cause to be retained
any copies of the foregoing. Employee hereby agrees that all of the foregoing
shall be and remain the property of the Company, and be subject at all times to
their discretion and control.
11. No Prior Agreements. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee, his employment by the
Company, and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former
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employer, client, or any other Person. Further, Employee agrees to indemnify and
hold harmless the Company and its officers, directors, and representatives for
any claim, including, but not limited to, reasonable attorneys' fees and
expenses of investigation, of any such third party that such third party may now
have or may hereafter come to have against the Company or such other persons,
based upon or arising out of any non-competition agreement, invention, secrecy,
or other agreement between Employee and such third party that was in existence
as of the date of this Agreement. To the extent that Employee had any oral or
written employment agreement or understanding with the Company, this Agreement
shall automatically supersede such agreement or understanding, and upon
execution of this Agreement by Employee and the Company, such prior agreement or
understanding automatically shall be deemed to have been terminated and shall be
null and void.
12. Assignment; Binding Effect. Employee understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience, and skills. Employee agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. This
Agreement may not be assigned or transferred by the Company without the prior
written consent of Employee. Subject to the preceding two sentences, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Notwithstanding the foregoing, if Employee accepts
employment with a subsidiary or affiliate of the Company, unless Employee and
his new employer agree otherwise in writing, this Agreement shall automatically
be deemed to have been assigned to such new employer (which shall thereafter be
an additional or substitute beneficiary of the covenants contained herein, as
appropriate), with the consent of Employee, such assignment shall be considered
a condition of employment by such new employer, and references to the "Company"
in this Agreement shall be deemed to refer to such new employer. If the Company
is merged with or into a subsidiary or affiliate of the Company, such action
shall not be considered to cause an assignment of this Agreement, and the
surviving or successor entity shall become the beneficiary of this Agreement and
all references to the "Company" shall be deemed to refer to such surviving or
successor entity. It is intended that all subsidiaries and affiliates of the
Company will be third-party beneficiaries of the rights of the Company under
this Agreement. No other Person shall be a third-party beneficiary.
13. Complete Agreement; Waiver; Amendment. This Agreement is not a
promise of future employment. Employee has no oral representations,
understandings, or agreements with the Company or any of its officers,
directors, or representatives covering the same subject matter as this
Agreement. This Agreement is the final, complete, and exclusive statement and
expression of the agreement between the Company and Employee with respect to the
subject matter hereof and thereof, and cannot be varied, contradicted, or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and Employee, and no
term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term.
14. Notice. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
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To the Company: Navigant International, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn.: Chief Executive Officer
To Employee: Xxxxxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Notice shall be deemed given and effective three days after the deposit in the
U.S. mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or, if sent by express delivery, hand delivery, or
facsimile, when actually received. Either party may change the address for
notice by notifying the other party of such change in accordance with this
Section 14.
15. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid and inoperative.
This severability provision shall be in addition to, and not in place of, the
provisions of Section 7(f) above. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
16. Equitable Remedy. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Sections 7, 8, 9 and 10; and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would not
be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the Company at law or in equity, the Company
shall be entitled to specific performance and any injunctive or other equitable
relief as a remedy for any breach or threatened breach of the aforementioned
restrictive covenants.
17. Arbitration. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted in accordance with the rules of the American Arbitration Association
then in effect. The arbitrators shall not have the authority to add to, detract
from, or modify any provision hereof nor to award punitive damages to any
injured party. A decision by a majority of the arbitration panel shall be final
and binding. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. The direct expense of any arbitration proceeding shall be
borne by the Company. Each party shall bear its own counsel fees. The
arbitration proceeding shall be held in Denver, Colorado. Notwithstanding the
foregoing, the Company shall be entitled to seek injunctive or other equitable
relief, as contemplated by Section 16 above, from any court of competent
jurisdiction, without the need to resort to arbitration.
18. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Colorado, without regard to its conflict
of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
NAVIGANT INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxx, Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxx
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