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EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of January, 2000, by and
between Pegasus Systems, Inc., a Delaware corporation (the "Company") and Xxxxxx
X. Xxxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is essential and in the best interest of the Company and its
stockholders to enter into this Agreement to retain the services of the
Executive and to ensure his continued dedication and efforts; and
WHEREAS, in order to induce the Executive to enter into and continue
employment by the Company, the Company desires to provide the Executive with
certain benefits during the term of his employment and, in the event his
employment is terminated, to provide the Executive with the benefits and
payments described herein.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. EMPLOYMENT TERM.
The "Employment Term" shall commence on January 1, 2000 (the "Effective
Date") and shall expire on the fourth (4th) anniversary of the Effective Date.
2. EMPLOYMENT.
(a) Subject to the provisions of Section 8 hereof, the Company agrees to
continue to employ the Executive and the Executive agrees to remain in the
employ of the Company during the Employment Term. During the Employment Term,
the Executive shall be employed as the Chief Financial Officer of the Company.
The Executive shall perform the duties, undertake the responsibilities and
exercise the authority customarily performed, undertaken and exercised by
persons situated in a similar executive capacity. He shall also promote, by
entertainment or otherwise, the business of the Company.
(b) During the Employment Term, excluding periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during usual business hours to the business and
affairs of the Company to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder. The Executive may (1) serve on corporate,
civil or charitable boards or committees, (2) manage personal investments and
(3) deliver lectures and teach at educational institutions, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities hereunder. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the performance
of the Executive's responsibilities to the Company.
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3. COMPENSATION.
(a) Base Salary. Beginning on the Effective Date, the Company agrees to pay
or cause to be paid to the Executive an annual base salary of Two Hundred Five
Thousand Dollars ($205,000.00), and as may be increased from time to time by the
Compensation Committee of the Board (hereinafter referred to as the "Base
Salary"). Such Base Salary shall be payable in accordance with the Company's
customary practices applicable to its executives.
(b) Annual Bonus. In addition to Base Salary, the Executive shall be
awarded, for each fiscal year ending during the Employment Term, an annual
discretionary bonus (the "Annual Bonus") in accordance with the terms and
conditions of the bonus plan approved by the Compensation Committee. Any actual
payment or award under such Annual Bonus plan, and the size of any payment or
award, will be in accordance with the terms of the plan. Each such Annual Bonus
shall be paid no later than the end of the third (3rd) month of the fiscal year
next following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
(c) Supplemental Employee Retirement Plan. In addition to the Base Salary
and Annual Bonus, the Executive shall be entitled to participate in the
Company's Supplemental Employee Retirement Plan, a copy of which is attached
hereto, as of January 1, 2000. Executive shall not be subject to any amendment
to the Supplemental Employee Retirement Plan without Executive's written
consent.
(d) Stock Plans. Executive shall be entitled to participate in the
Company's Stock Option Plans, Employee Stock Purchase Plans and such other
stock-related plans as may be applicable to executives of the Company and to
receive such stock option grants and any and all other rights of participation
as may be provided therein.
(e) Life Insurance. Executive shall be entitled to the continuation of such
life insurance coverage, if any, at the Company's expense, as is currently in
effect as of the date of this Agreement.
(f) Car Allowance. Executive shall be entitled to a car allowance of Seven
Hundred Fifty Dollars ($750.00) per month for each month during the term of this
Agreement.
4. EMPLOYEE BENEFITS.
During the Employment Term and beginning on the Effective Date, the
Executive shall be entitled to participate in all employee benefit plans,
practices and programs maintained by the Company and made available to employees
generally, including, without limitation, all pension, retirement, profit
sharing, savings, medical, hospitalization, disability, dental, life or travel
accident insurance benefit plans. Unless otherwise provided herein, the
compensation and benefits under, and the Executive's participation in, such
plans, practices and programs shall be on the same basis and terms as are
applicable to employees of the Company generally, but in no event on a basis
less favorable in terms of benefit levels and coverage than offered to other
similarly situated executives of the Company. The Company may reduce benefit
levels if such changes are part of broad-based changes in the Company's benefit
programs offered generally to all employees. Notwithstanding the foregoing,
except as otherwise set forth herein, nothing herein shall obligate the Company
to adopt such plans, practices or programs.
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5. EXECUTIVE BENEFITS.
During the Employment Term, the Executive shall be entitled to participate
in all executive benefit or incentive compensation plans maintained or
established by the Company for the purpose of providing compensation and/or
benefits to executives of the Company including, but not limited to, any
supplemental retirement, salary continuation, stock option, deferred
compensation, supplemental medical or life insurance or other bonus or incentive
compensation plans; provided, however, the grant of a stock option in any year
is not guaranteed and will be dependent on the Board's evaluation of the
Executive's performance. Unless otherwise provided herein, the compensation and
benefits under, and the Executive's participation in, such plans shall be on the
same basis and terms as other similarly situated executives of the Company. No
additional compensation provided under any of such plans shall be deemed to
modify or otherwise affect the terms of this Agreement or any of the Executive's
entitlements hereunder. Notwithstanding the foregoing, except as otherwise set
forth herein, nothing herein shall obligate the Company to adopt such plans,
practices or programs.
6. OTHER BENEFITS.
(a) Fringe Benefits and Perquisites. During the Employment Term, the
Executive shall be entitled to all fringe benefits and perquisites generally
made available by the Company to its executives. Unless otherwise provided
herein, the fringe benefits and perquisites provided to Executive shall be on
substantially the same basis and terms as other similarly situated executives of
the Company.
(b) Expenses. The Executive shall be entitled to receive reimbursement of
all expenses reasonably incurred by him in connection with the performance of
his duties hereunder or for promoting, pursuing or otherwise furthering the
business or interests of the Company in accordance with the accounting
procedures and expense reimbursement policies of the Company as it shall adopt
from time to time.
7. VACATION AND SICK LEAVE.
During the Employment Term, at such reasonable times as the Board shall in
its discretion permit, the Executive shall be entitled without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, provided that:
(a) The Executive shall be entitled to annual vacation in accordance with
the policies as periodically established by the Board.
(b) The Executive shall be entitled to sick leave (without loss of pay) in
accordance with the Company's policies as in effect from time to time.
8. TERMINATION.
During the Employment Term, the Executive's employment hereunder may be
terminated under the following circumstances:
(a) Cause. The Company may terminate the Executive's employment for
"Cause". A termination of employment is for "Cause" if the Executive:
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(1) has been convicted of or plead guilty or no contest to a felony; or
(2) intentionally engaged in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise or from which he
derives an improper material personal benefit; provided, however, that
no termination of the Executive's employment shall be for Cause as set
forth in this clause (2) until:
(i) there shall have been delivered to the Executive a copy of a
written notice setting forth that the Executive was guilty of the
conduct set forth in this clause (2) and specifying the
particulars thereof in reasonable detail; and
(ii) the Executive shall have been provided an opportunity to be heard
by the Board (with the assistance of the Executive's counsel if
the Executive so desires). No act, nor failure to act, on the
Executive's part shall be considered "intentional" unless he has
acted, or failed to act, with an absence of good faith and
without a reasonable belief that his action or failure to act was
in the best interest of the Company.
(3) commits gross malfeasance or intentionally fails to perform the duties
of the Executive's position; provided, however, the Company shall
first notify the Executive in writing stating with reasonable
specificity the action or inaction of the Executive which forms the
basis for such notice and the Executive fails to cure such malfeasance
or failure within ten (10) days of the date of such notice.
(4) violates any valid non-competition or non-disclosure agreement or the
Company's xxxxxxx xxxxxxx policy, if any.
Notwithstanding anything contained in this Agreement to the contrary, no
failure to perform by the Executive after a Notice of Termination is given by
the Executive shall constitute Cause for purposes of this Agreement.
(b) Disability. The Company may terminate the Executive's employment after
having established the Executive's Disability. For purposes of this Agreement,
"Disability" means a physical or mental infirmity which impairs the Executive's
ability to substantially perform his material duties under this Agreement which
continues for a period of at least ninety (90) consecutive days. The Executive
shall be entitled to the compensation and benefits provided for under this
Agreement for any period during the Employment Term and prior to the
establishment of the Executive's Disability during which the Executive is unable
to work due to a physical or mental infirmity and as otherwise provided in this
Agreement in connection with Disability. Notwithstanding anything contained in
this Agreement to the contrary, until the Termination Date specified in a Notice
of Termination (as each term is hereinafter defined) relating to the Executive's
Disability, the Executive will be entitled to return to his position with the
Company as set forth in this Agreement in which event no Disability of the
Executive will be deemed to have occurred.
(c) Good Reason.
(1) The Executive may terminate his employment for "Good Reason".
For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the events or conditions described in
Subsections (i) through (vi) hereof:
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(i) If the Executive shall cease to be the Chief Financial
Officer of the Company (or any successor or parent thereof) or
upon the assignment to the Executive of any material duties or
responsibilities which are inconsistent with his position or
responsibilities; or any removal of the Executive from or failure
to reappoint or reelect him to any such offices or positions,
except during a period of disability or in connection with the
termination of his employment for Disability, Cause, as a result
of his death, or by the Executive other than for Good Reason;
(ii) A reduction in the Executive's Base Salary or any failure to
pay the Executive any compensation or benefits to which he is
entitled within thirty (30) days of the due date;
(iii) A Change of Control as hereinafter defined;
(iv) Any material breach by the Company of any provision of this
Agreement; provided, however, the Executive shall first notify
the Company in writing stating with reasonable specificity the
breach by the Company and the Company fails to cure such breach
within ten (10) days of the date of such notice;
(v) Any purported termination of the Executive's employment for
Cause by the Company which is found by a court of competent
jurisdiction or an arbitrator not to comply with the terms of
Section 8(a); or
(vi) The failure of the Company to obtain an agreement,
reasonably satisfactory to the Executive, from any successor or
assign of the Company to assume and agree to perform this
Agreement, as contemplated in Section 14 hereof.
(2) The Executive's right to terminate his employment pursuant to this
Section 8(c) shall not be affected by his incapacity due to physical
or mental illness.
(d) Voluntary Termination. Upon thirty (30) days prior written notice,
either the Executive or the Company may voluntarily terminate the Executive's
employment hereunder at any time; provided, however, in the event of any such
termination by the Company, the Company shall pay to the Executive the amounts
set forth in Section 9(c) hereof.
9. COMPENSATION UPON TERMINATION.
Upon termination of the Executive's employment during the Employment Term,
the Executive shall be entitled to the following benefits:
(a) If the Executive's employment with the Company shall be terminated by
the Company for Cause or by the Executive other than for Good Reason, the
Company shall pay the Executive all amounts earned and accrued through the
Termination Date but not paid as of the Termination Date, including:
(1) the Base Salary,
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(2) reimbursement for reasonable and necessary expenses incurred by
the Executive on behalf of the Company during the period ending on the
Termination Date,
(3) vacation pay, and
(4) sick leave (collectively, "Accrued Compensation").
(b) If the Executive's employment with the Company shall be terminated by
the Company for Disability, the Company shall pay the Executive all amounts
earned or accrued through the Termination Date but not paid as of the
Termination Date, including the Accrued Compensation. In addition, the Company
shall pay to the Executive the following:
(1) the Base Salary and all other benefits customarily received for a
periohd of one (1) year from the date of such Disability,
(2) an amount equal to the "Pro Rata Bonus". The "Pro Rata Bonus" is
an amount equal to the maximum bonus amount the Executive would have
been entitled to in the fiscal year which includes the Termination
Date (the "Bonus") multiplied by a fraction, the numerator of which is
the number of days in such fiscal year through the Termination Date
and the denominator of which is 365, and
(3) a monthly payment upon reaching age sixty (60) as more
specifically provided by the Supplemental Employee Retirement Plan.
(c) If the Executive's employment with the Company shall be terminated by
the Company by reason of the Executive's death , the Company shall pay the
Executive all amounts earned or accrued through the Termination Date but not
paid as of the Termination Date, including the Accrued Compensation. In
addition, the Company shall pay to the Executive's beneficiaries the following:
(1) the Base Salary and all other benefits customarily received for a
period of one (1) year from the date of such death,
(2) an amount equal to the "Pro Rata Bonus". The "Pro Rata Bonus" is
an amount equal to the maximum bonus amount the Executive would have
been entitled to in the fiscal year which includes the Termination
Date (the "Bonus") multiplied by a fraction, the numerator of which is
the number of days in such fiscal year through the Termination Date
and the denominator of which is 365, and
(3) a single payment equal to Executive's total accrued benefit under
the Supplemental Employee Retirement Plan.
(d) If the Executive's employment with the Company shall be terminated by
the Company without Cause or by the Executive for Good Reason, the Company shall
pay to the Executive the following:
(1) the Company shall pay the Executive all Accrued Compensation and a
Pro Rata Bonus,
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(2) the Company shall continue to pay the Executive as severance pay
and in lieu of any further compensation for periods subsequent to the
Termination Date, an amount equal to the sum of (A) the Executive's
Base Salary in effect for the month immediately preceding the
Termination Date and (B) the Bonus, for a period of twenty-four (24)
months following the Termination Date,
(3) during the twelve (12) month period immediately following the
Termination Date (the "Continuation Period"), the Company shall at its
expense continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental and
hospitalization benefits provided (A) to the Executive immediately
prior to the Notice of Termination or (B) to other similarly situated
executives who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including deductibles
and costs) provided in this Section 9(c)(3) during the Continuation
Period shall be no less favorable to the Executive and his dependents
and beneficiaries, than the most favorable coverages and benefits
provided to the Executive during any of the periods referred to in
clauses (A) and (B) above. The Company's obligation hereunder with
respect to the foregoing benefits shall terminate in the event the
Executive obtains any such benefits (regardless of level and scope of
coverage) pursuant to a subsequent employer's benefit plans. This
Section 9(c)(3) shall not be interpreted as to limit any benefits to
which the Executive, his dependents or beneficiaries may be entitled
under any of the Company's employee benefit plans, programs or
practices following the Executive's termination of employment,
including without limitation retiree medical and life insurance
benefits,
(4) the restrictions on any outstanding stock options (including
restricted stock and granted performance shares or units) granted to
the Executive under any stock option plans or under any other
incentive plan or arrangement shall lapse and such incentive award
shall become 100% vested, all stock options and stock appreciation
rights granted to the Executive shall become immediately exercisable
and shall become 100% vested, and all performance units granted to the
Executive shall become 100% vested,
(5) for a period of two (2) years after the date of termination, the
Company shall continue to contribute to the Supplemental Employee
Retirement Plan for the benefit of the Executive and the Executive
shall be entitled to the benefits of the Supplemental Employee
Retirement Plan in the same manner as if the Executive had continued
as an employee for the additional two (2) years.
(6) the Company shall reimburse to the Executive the costs of any
outplacement services incurred by Executive, up to a maximum amount of
Fifteen Thousand Dollars ($15,000.00).
(e) The amounts provided for in Sections 9(a), 9(b)(2) and 9(c)(1) shall be
paid within thirty (30) days after the Executive's Termination Date. Expenses
incurred by Executive under Section 9(c)(5) shall be paid within thirty (30)
days of the receipt by the Company of a claim for reimbursement submitted by the
Executive.
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(f) The Executive hereby acknowledges that full payment and/or performance
by the Company of its obligations as set forth in Sections 9(b) or 9(c) hereof
shall be in lieu of any other remedy or cause of action the Executive may have,
either at law or in equity, as a result of the termination of the Executive's
employment pursuant to such Sections.
10. DEFINITIONS.
(a) Notice of Termination. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which indicates the specific termination
provision in this Agreement, if any, relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated. Any
purported termination by the Company or by the Executive shall be communicated
by written Notice of Termination to the other. For purposes of this Agreement,
no such purported termination of employment shall be effective without such
Notice of Termination.
(b) Termination Date, Etc. For purposes of this Agreement, "Termination
Date" shall mean in the case of the Executive's death, his date of death, or in
all other cases, the date specified in the Notice of Termination subject to the
following:
(1) If the Executive's employment is terminated by the Company for Cause,
the date of the Notice of Termination,
(2) If the Executive's employment is terminated by the Company due to
Disability, the date specified in the Notice of Termination shall be at
least thirty (30) days from the date the Notice of Termination is given to
the Executive, provided that the Executive shall not have returned to the
full-time performance of his duties during such period of at least thirty
(30) days, and
(3) If the Executive's employment is terminated for Good Reason, the date
specified in the Notice of Termination shall be not more than thirty (30)
days from the date the Notice of Termination is given to the Company.
(d) Change In Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(1) An acquisition of any voting securities of the Company (the "Voting
Securities") by any "Person" (as the term person is used for purposes of
Section 12(d) or 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) other than any parent, subsidiary or affiliate of the
Company immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
more than fifty percent (50%) of the combined voting power of the Company's
then outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (i) an employee
benefit plan (or a trust forming a part thereof) maintained by (A) the
Company or (B) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Subsidiary") or (ii) the Company or its Subsidiaries,
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(2) The individuals who, as of the date of this Agreement is approved by
the Board, are members of the Board (the "Incumbent Board") cease for any
reason to constitute at least one half (1/2) of the members of the Board;
provided, however, that if the election, or nomination for election of any
new director was approved by a vote of the members of the Board as provided
by Section 3.2.3 of the Company's Bylaws, such new director shall, for
purposes of this Agreement, be considered as a member of the Incumbent
Board; provided, however, that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest" (as described
in Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest, or
(3) Approval by the stockholders of the Company of:
(i) A complete liquidation or dissolution of the Company, or
(ii) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person
(other than a transfer to a Subsidiary or a parent in a
Non-Control Acquisition).
11. EXCISE TAX PAYMENTS.
In the event of a determination that a portion of any payment or benefit to
the Executive or for his benefit payable or distributable pursuant to the terms
of this Agreement is or will be deemed to be an "excess parachute payment"
within the meaning of Section 280G(b)(1) of the Internal Revenue Code of 1986,
as amended (the "Code") (a "Payment" or "Payments"), the Company shall be
responsible for the payment of any excise or similar tax assessed in connection
therewith.
12. NONCOMPETITION.
(a) Except with the prior written consent of the Company authorized by a
resolution adopted by the Board, for the period beginning upon the date hereof
and ending on (i) in the event of the termination of the Executive's employment
by the Executive for Good Reason pursuant to Section 8(c) or by the Company
pursuant to Section 8(d) hereof and the Executive is receiving payments from the
Company pursuant to Section 9(c)(2) hereof, the date on which the last such
payment is received; or (ii) in the event of the voluntary termination of the
Executive's employment by the Executive pursuant to Section 8(d) hereof, the
date which is nine (9) months from the Termination Date; or (iii) in the event
of the termination of the Executive's employment for any other reason, the
Termination Date, Executive shall not directly or indirectly as owner, partner,
joint venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever engage in,
become substantially financially interested in, employed by or have any
connection with, any business engaged principally in the processing of
electronic hotel reservations and travel agent commissions in any country where
the Company or any of its subsidiaries is then engaged in such business;
provided, however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly traded stock or securities of
such corporation.
(b) Executive agrees that for a period of one (1) year following
termination of employment with the Company, he will not solicit or in any manner
encourage employees of the
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Company, its subsidiaries or parent to leave its employ. Executive further
agrees that during such period he will not offer or cause to be offered
employment to any person who is employed by the Company, its subsidiaries or
parent at any time during the six (6) months prior to the termination of his
employment with the Company.
(c) In case one or more of the terms contained in Subsections (a) or (b) of
this Section 12 shall for any reason become invalid, illegal, or unenforceable,
such invalidity, illegality or unenforceability shall not affect any other terms
herein, but such terms shall be deemed deleted and such deletion shall not
affect the validity of the other terms of this Section. In addition, if any one
or more of the terms contained in Subsections (a) or (b) of this Section shall
for any reason be held to be excessively broad with regard to time, duration,
geographic scope or activity that term shall be construed in a manner to enable
it to be enforced to the extent compatible with applicable law.
13. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company, its successors and assigns and the Company shall require any
successor or assign to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession or assignment had taken place. The term "Company"
as used herein shall include such successors and assigns. The term "successors
and assigns" as used herein shall mean a corporation or other entity acquiring
all or substantially all the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
14. FEES AND EXPENSES.
The Company shall pay all legal fees and related expenses (including the
costs of experts, evidence and counsel) incurred by the Executive as a result of
the breach or default by the Company of the terms hereof.
15. NOTICE.
For purposes of this Agreement, notice and all other communications
provided for in the Agreement (including the Notice of Termination) shall be in
writing and shall be deemed to have been duly given when personally delivered or
sent by certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses last given by each party to the other, provided that
all notices to the Company shall be directed to the attention of the Board with
a copy to the Secretary of the Company. All notices and communications shall be
deemed to have been received on the date of delivery thereof or on the third
(3rd) business day after the mailing thereof, except that notice of change of
address shall be effective only upon receipt.
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16. NON-EXCLUSIVITY OF RIGHTS.
Nothing in this Agreement shall prevent or limit the Executive's continuing
or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company or any of its subsidiaries and for which the
Executive may qualify, nor shall anything herein limit or reduce such rights as
the Executive may have under any other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
17. SETTLEMENT OF CLAIMS.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off
(except against amounts actually owed by the Executive to the Company as
evidenced by promissory notes, loan agreements and similar documents executed by
the Executive), counterclaim, defense, recoupment or other right which the
Company may have against the Executive or others.
18. MISCELLANEOUS.
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by the
Executive and the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas without giving effect to the
conflict of law principles thereof. Subject to Section 22 of this Agreement, any
action brought by any party to this Agreement shall be brought and maintained in
a court of competent jurisdiction in Dallas County, Texas.
20. SEVERABILITY.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provisions hereof shall not affect the
validity or enforceability of the other provisions hereof.
21. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes all prior agreements, if any, understandings and arrangements,
oral or written, between the parties hereto with respect to the subject matter
hereof.
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22. ARBITRATION.
Any dispute or controversy arising out of or relating to this Agreement
shall be determined and settled by arbitration in the City of Dallas, Texas, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association then in effect, and judgement upon the award rendered by
the arbitrator may be entered in any court of competent jurisdiction. Such
arbitrator shall have no power to modify any of the provisions of this
Agreement, and his or her jurisdiction is limited accordingly. A party
requesting arbitration hereunder shall give ten (10) days' written notice to the
other party to request such arbitration. Unless the arbitrator decides
otherwise, the successful party in any such arbitration shall be entitled to
reasonable attorneys' fees and costs associated with such arbitration. If the
parties hereto cannot agree upon an arbitrator, then one shall be appointed by
the governing office of the American Arbitration Association. Any arbitrator so
appointed shall have extensive experience in a profession connected with the
subject matter of the dispute. Whenever any action is required to be taken under
this Agreement within a specified period of time and the taking of such action
is materially affected by a matter submitted to arbitration, such period shall
automatically be extended by the number of days plus ten (10) that are taken for
the determination of that matter by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its Chairman of the Board or Chairman of the Compensation Committee and the
Executive has executed this Agreement as of the date and year first above
written.
PEGASUS SYSTEMS, INC. EXECUTIVE:
/S/ XXXXXXX X. XXXXXXX, XX. /S/ XXXXXX X. XXXXXX
By: --------------------------- By: -----------------------------
Xxxxxx X. Xxxxxx
XXXXXXX X. XXXXXXX, XX.
Print: ---------------------------
Chairman of the Board
Title: ----------------------------
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