Exhibit 10.51
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of the 1st day of November, 1999.
BETWEEN:
EXPRESS VACATIONS, INC.
(hereinafter called the "Company")
OF THE FIRST PART,
- and -
XXX XXXXXX
(hereinafter called the "Executive")
OF THE SECOND PART.
WHEREAS the Company is engaged in the operation of a tour and travel
business, including without limitation selling travel packages which include
transportation, hotel accommodations, car rental, destination activities,
sightseeing tours and similar activities (the "Business");
AND WHEREAS the Executive has been employed by the Company and has
been a member of the Company;
AND WHEREAS by agreement of even date Xxxxxxxxxx.xxx Ltd.
("Travelbyus") has purchased all issued and outstanding units of membership
interests of the Company from the Executive and other third parties, a term of
which agreement is that Travelbyus continue the employment by the Company of the
Executive on substantially the same terms as previously enjoyed which terms are
to be reflected in a written agreement ("Agreement");
AND WHEREAS the Company is a wholly owned subsidiary of Travelbyus;
AND WHEREAS the Company has agreed to continue the employment of the
Executive and the Executive has agreed to accept such continued employment, in
the Business, subject to the terms, conditions and covenants herein provided and
both parties have agreed to execute this Agreement;
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NOW THEREFORE in consideration of the mutual covenants herein
contained and other good and valuable consideration, the Company and the
Executive agree as follows:
POSITION
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1. The Company hereby employs the Executive and the Executive agrees to
be employed as President of the Company on the terms and conditions herein
contained. In addition the Executive agrees to hold the position of President of
Travelbyus. The Executive shall report to the Chief Executive Officer of
Travelbyus.
2. The Executive shall serve the Company with such duties and
responsibilities as the Company may from time to time assign to the Executive.
These duties and responsibilities shall be commensurate with a similar position
in a business of comparable size and type, including, without limiting the
generality of the foregoing, the duty to manage, supervise and conduct the
ordinary and usual business and affairs of the Company and to advise the Company
in connection therewith. During the currency of this Agreement, the Executive
shall devote the whole of his business time and attention to the Business and
shall not, without the consent in writing of the Company, undertake any other
business or occupation or become an executive, employee or agent of any other
corporation, firm or individual.
3. The Executive shall work out of the Company's office in Reno, Nevada,
but agrees that his principal place of employment may be relocated by the
Company after June 2000 upon mutual agreement anywhere within the continental
United States of America.
REMUNERATION
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4. The Executive shall receive a base salary from the Company of
$150,000.00 per annum, payable in accordance with the Company's payroll
practices in force from time to time, and such compensation shall be subject to
review and, if the Company considers it to be appropriate, increased
compensation annually.
BONUS AND RETENTION BONUS
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5. The Executive shall be entitled to a performance bonus on terms to be
established by the Board of Directors of Travelbyus in its sole discretion. The
parties also contemplate entering into an agreement for the provision of a
retention bonus on terms and conditions to be established by the parties.
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EQUITY PARTICIPATION
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6. The Executive shall be entitled to enter into a formal agreement for
the grant of options to purchase 250,000 common shares of Travelbyus. Such
agreement shall be made pursuant to the Employee Stock Option Plan established
by Travelbyus, and shall provide that 50% of the options shall vest on the first
anniversary of this Agreement and the second 50% of the options shall vest on
the second anniversary of this Agreement.
BENEFITS AND EXPENSES
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7. The Executive shall be entitled to participate in the health, life and
medical benefit plan and any 401K plan made available by the Company generally
to its executives, as amended from time to time without any waiting period, and
the Company agrees that it will not during the term of this Agreement materially
change its annual health, life and medical benefit plan without the prior
written consent of the Executive. The Company shall pay all necessary business
expenses as approved by the Company's Chief Financial Officer, which approval
shall not be unreasonably withheld, which are actually and properly incurred by
the Executive in furtherance of or in connection with the business of the
Company, including, but not by way of limitation, all business related travel
and parking expenses, public relations expenses and all business related
entertainment expenses (whether incurred at the Executive's residence, while
travelling or otherwise). If any such expenses are paid in the first instance by
the Executive, the Company shall reimburse him therefor, subject to the receipt
by the Company of statements and vouchers in a form reasonably satisfactory to
the Company's Chief Financial Officer.
VACATION
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8. The Executive shall be entitled to up to three (3) weeks vacation in
each calendar year; provided that such vacation may be taken only at such times
as the Executive and the Company may from time to time reasonably determine
having regard to the operations of the Company. In the event of termination of
this Agreement and the Executive's employment, the Executive shall be entitled
to payment for any vacation time accrued up to the date of termination but
unused during the year of termination.
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TERM
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9. (a) The term of this Agreement and the Executive's employment hereunder
shall be two (2) years commencing on November 1, 1999 unless sooner
terminated in accordance with the provisions of section 10; provided
that upon expiration of the initial term, this Agreement shall be
automatically renewed for successive periods of one (1) year each,
unless at least ninety (90) days prior to the expiration of the
initial term or any renewal term, as the case may be, either the
Executive or the Company gives written notice to the other of them of
its intention to terminate this Agreement upon the expiration of the
initial term or the renewal term, as the case may be. For the
purposes of this Agreement, if such notice is not given at least
ninety (90) days prior to the expiration of the initial term or
renewal term, as the case may be, the employment of the Executive
hereunder shall be deemed to be automatically renewed for a one (1)
year period following the date of such expiration.
(b) In the event of the delivery by the Executive of a notice pursuant to
this section 9, the Executive shall be deemed to have voluntarily
resigned from his employment hereunder effective on the expiration of
the initial term or renewal term, as the case may be. In the event of
termination by the Executive under this section 9, the Executive
shall not be entitled to any further remuneration other than payments
of base salary, bonus (if any) earned up until the termination, and
business expenses recoverable under section 7, above, incurred up
until the termination.
TERMINATION
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10(a) Events of Termination. The employment term, the Employee's
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remuneration, bonus and retention bonus, equity participation, and any and all
other rights of the Employee under this Agreement or otherwise as an employee of
the Company will terminate (except as otherwise provided in this Section):
(i) upon the death of the Employee;
(ii) upon the disability of the Employee (as defined in Section
10(b) immediately upon notice from either party to the other;
(iii) For Cause (as defined in Section 10(c), immediately upon notice
from the Company to the Employee, or at such later time as such notice may
specify;
(iv) Other than For Cause, Disability or Death, immediately upon
notice from the Company to the Employee, or at such later time as such notice
may specify; or
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(v) For Good Reason (as defined in Section 10(d) upon not less than
thirty days' prior notice from the Employee to the Company.
(b) Definition of Disability. For purposes of Section 10(a), the Employee
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will be deemed to have a "disability" if, for physical or mental reasons, the
Employee is unable to perform the Employee's duties under this Agreement as
determined in accordance with this Section 10(b). The disability of the Employee
will be determined by a medical doctor selected by written agreement of the
Company and the Employee upon the request of either party by notice to the
other. If the Company and the Employee cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Employee has a disability. The determination of the medical doctor selected
under this Section 10.2(b) will be binding on both parties. The Employee must
submit to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 10(b), and the Employee hereby
authorizes the disclosure and release to the Company of such determination and
all supporting medical records. If the Employee is not legally competent, the
Employee's legal guardian or duly authorized attorney-in-fact will act in the
Employee's stead, under this Section 10(b), for the purposes of submitting the
Employee to the examinations, and providing the authorization of disclosure,
required under this Section 10(b).
(c) Definition of "For Cause". For purposes of Section 10(a), the phrase
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"For Cause" means: (i) the Employee's breach of this Agreement; (i) the
Employee's failure to adhere to any written Company policy if the Employee has
been given a reasonable opportunity to comply with such policy or cure his
failure to comply; (iii) the appropriation or attempted appropriation of a
material business opportunity of the Company, including attempting to secure or
securing any personal profit in connection with any transaction entered into on
behalf of the Company; (iv) the misappropriation or attempted misappropriation
of any of the Company's funds, property, or Confidential Information; or (v) the
conviction of, the indictment for or its procedural equivalent, or the entering
of a guilty plea or plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is a possible
punishment.
(d) Definition of "For Good Reason." For purposes of Section 10(a), the
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phrase "For Good Reason" means any of the following: (i) the Company's material
breach of this Agreement or the Purchase Agreement; (ii) the assignment of the
Employee without his consent to a position, responsibilities, or duties of a
materially lesser status or degree of responsibility than his position,
responsibilities, or duties at the effective date of this Agreement; or
(iii) the relocation of the Company's principal corporate offices outside Reno,
Nevada without Executive's consent; or (iv) the requirement by the Company that
the Employee be based anywhere other than the Company's principal corporate
offices, in any case without the Employee's consent.
(e) Termination Pay. Effective upon the termination of this Agreement, the
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Company will be obligated to pay the Employee (or, in the event of his death,
his
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designated beneficiary as defined below) only such compensation as is provided
in this Section 10(e), and in lieu of all other amounts and in settlement and
complete release of all claims the Employee may have against the Company. For
purposes of this Section 10(e), the Employee's designated beneficiary will be
such individual beneficiary or trust, located at such address, as the Employee
may designate by notice to the Company from time to time or, if the Employee
fails to give notice to the Company of such a beneficiary, the Employee's
estate. Notwithstanding the preceding sentence, the Company will have no duty,
in any circumstances, to attempt to open an estate on behalf of the Employee, to
determine whether any beneficiary designated by the Employee is alive or to
ascertain the address of any such beneficiary, to determine the existence of any
trust, to determine whether any person or entity purporting to act as the
Employee's personal representative (or the trustee of a trust established by the
Employee) is duly authorized to act in that capacity, or to locate or attempt to
locate any beneficiary, personal representative, or trustee.
(i) Termination by the Employee For Good Reason. If the Employee
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terminates this Agreement For Good Reason, the Company will pay the
Employee (A) the Employee's salary for the greater of six months or
the remainder, if any, of the term of this Agreement, and (B) that
portion of the Employee's bonus or retention bonus, if any, for the
fiscal year during which the termination is effective, prorated
through the date of termination.
(ii) Termination by the Company For Cause. If the Company terminates this
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Agreement For Cause, the Employee will be entitled to receive his
salary only through the date such termination is effective, but will
not be entitled to any bonus or retention bonus for the fiscal year
during which such termination occurs or any subsequent fiscal year.
(iii) Termination upon Disability. If this Agreement is terminated by
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either party as a result of the Employee's disability, as determined
under Section 10.2, the Company will pay the Employee his Salary
through the remainder of the calendar month during which such
termination is effective and for the lesser of (A) six (6) months
thereafter, or (B) the period until disability insurance benefits
commence under the disability insurance coverage furnished by the
Company to the Employee.
(iv) Termination upon Death. If this Agreement is terminated because of
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the Employee's death, the Employee will be entitled to receive his
salary through the end of the calendar month in which his death
occurs, the proceeds of his life insurance policy, and that part of
the Employee's bonus or retention bonus, if any, for the fiscal year
during which his death occurs, prorated through the end of the
calendar month during which his death occurs.
(v) Termination by Company Other than for Cause, Disability or Death. If
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the Company terminates this Agreement without Cause, the Company will
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pay the Employee (A) the greater of six (6) months or Employee's
salary for the remainder, if any, of the term of this Agreement, and
(B) that portion of the Employee's bonus or retention bonus, if any,
for the fiscal year during which the termination is effective,
prorated through the date of termination.
(vi) Benefits. The Employee's accrual of, or participation in plans
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providing for, the Benefits will cease at the effective date of the
termination of this Agreement, and the Employee will be entitled to
accrued Benefits pursuant to such plans only as provided in such
plans.
CONFIDENTIALITY
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11. All confidential records, material, information and all trade secrets
concerning the business or affairs of the Company obtained by the Executive in
the course of his employment shall remain the exclusive property of the Company.
During the Executive's employment or at any time thereafter, the Executive shall
not divulge the contents of such confidential records, material, information or
trade secrets to any person, firm or corporation other than to the Company or
the Company's qualified executives and the Executive shall not, following the
termination of his employment hereunder for any reason, use the contents of such
confidential records, material, information or trade secrets for any purpose
whatsoever. This section shall not apply to any confidential records, material,
information or trade secrets which:
(a) is or becomes publicly known through the lawful action of any third
party;
(b) is disclosed without restriction to the Executive by a third party;
(c) is known by the Executive prior to its disclosure by the Company;
(d) is subsequently developed by the Executive, independently of records,
material, information and trade secrets supplied to the Executive by
the Company;
(e) has been made available by the Company directly or indirectly to a
third party without obligation of confidentiality; or
(f) the Executive is obligated to produce as a result of a court order or
pursuant to governmental action, provided that the Company shall have
been given written notice of such court order or governmental action
and an opportunity to appear and object.
NON-SOLICITATION
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12. The Executive covenants and agrees with the Company that he shall not,
during the term of his employment hereunder and for a period ending one (1) year
following the date of the termination of his employment:
(a) directly or indirectly solicit, interfere with or endeavour to direct
or entice away from the Company any person, firm or Company who is or
has within the preceding year been a customer, client or otherwise in
the habit of dealing with the Company; or
(b) interfere with, entice away or otherwise attempt to induce the
termination of employment of any employee of the Company.
NON-COMPETITION
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13. The Executive covenants and agrees with the Company that he will not
(without the prior written consent of the Company) directly or indirectly, in
any manner whatsoever, including without limitation, either individually or in
partnership or jointly or in conjunction with any other person or persons, firm,
association, syndicate, Company or corporation, as principal, agent,
shareholder, Executive or in any other manner whatsoever during the term of his
employment hereunder and for a period ending six months following the date of
the termination of his employment, carry on or be engaged in any business within
North America which is competitive with the Business or any other business then
carried on by the Company (a "Competitive Business"), or be concerned with or
interested in or lend money to, guarantee the debts or obligations of or permit
his name or any part thereof to be used by any person, persons, firm,
association, syndicate, Company or corporation engaged or concerned with or
interested in a Competitive Business.
14. Notwithstanding the provisions of section 13, the Executive may invest
in stocks, bonds or other securities in any Competitive Business (but without
participating in such Competitive Business) if:
(a) the stocks, bonds or other securities of the Competitive Business are
listed on any national or regional securities exchange or are publicly
traded over the counter;
(b) his investment in the Competitive Business does not exceed, in the
case of any class of capital stock five percent (5%) of the issued and
outstanding shares, or in the case of bonds or other securities, five
percent (5%) of the aggregate principal amount thereof issued and
outstanding; and
(c) such investment would not prevent, directly or indirectly, the
transaction of business by the Company with any federal, state or
provincial government of Canada or the United States of America or any
governmental
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subdivision, agency or instrumentality thereof by virtue of any
statute, law, regulation or administrative practice.
INJUNCTIVE RELIEF
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15. The Executive acknowledges and agrees that the agreements and
covenants in sections 11 to 14 are essential to protect the business and
goodwill of the Company and that a breach by the Executive of the covenants in
Sections 11 to 14 hereof could result in irreparable loss to the Company which
could not be adequately compensated for in damages and that the Company may have
no adequate remedy at law if the Executive breaches such provisions.
Consequently, if the Executive breaches any of such provisions, the Company
shall have in addition to and not in lieu of, any other rights and remedies
available to it under any law or in equity, the right to obtain injunctive
relief to restrain any breach or threatened breach thereof and to have such
provisions specifically enforced by any court of competent jurisdiction.
ARBITRATION
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16. Except for any matters for which this Agreement expressly provides
otherwise, any matter in dispute under or relating to this Agreement shall,
unless settled in the manner provided by paragraph 16(a), be finally resolved by
binding arbitration.
(a) The parties wish to xxxxxx a mutually beneficial relationship under
this Agreement and to encourage an informal mechanism for the
resolution of disputes. Either party may at any time notify the other
party of an intention to discuss or dispute any matter connected with
this Agreement. Within 5 days of receiving such notification, the
parties shall each appoint a representative knowledgeable on the topic
at issue and such representatives shall meet within the following 5
days in an attempt to settle the matter at issue. If the
representatives of the parties are unable to resolve the matter at
issue within 5 days of their first meeting, then either party may
refer the matter at issue to binding arbitration in accordance with
this section 16.
(b) In the event that the parties are unable to resolve a disagreement or
dispute pursuant to paragraph 16(a), Any and all disputes,
controversies or claims arising under or in connection with this
Agreement other than the right to injunctive relief as set forth in
Section 15 above, including without limitation, fraud in the
inducement of this Agreement, or the general validity or
enforceability of this Agreement, shall be submitted to binding
arbitration before one arbitrator of and in accordance with the
Commercial Arbitration Rules of the American Arbitration Association
and conducted in a private manner in Washoe County, Nevada. All
expenses of any arbitration shall be borne equally by the parties. All
fees, including legal fees shall be borne by the party who incurred
said fees. The award of the arbitrator shall be final and enforceable
in the courts of Nevada. All costs
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of enforcement are to be borne by the losing party. In reaching his or
her decision, the arbitrator shall have no authority to change or
modify any provision of this Agreement. Each party shall have the
right to discovery in accordance with the Nevada Rules of Civil
Procedure so long as all discovery is conducted under a
confidentiality order issued by the arbitrator prohibiting the use of
any information disclosed or delivered in the discovery process except
for use within the Arbitration. Upon conclusion of the arbitration,
all documents or tangible items disclosed must be returned to the
party who produced the items.
SEVERABILITY
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17. The parties acknowledge that the provisions of sections 11 to 14
hereof (the "Restrictive Covenants") are reasonable and valid in geographic and
temporal scope and all other respects. If any court of competent jurisdiction
determines that any of the Restrictive Covenants or any part thereof, is or are
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to invalid
portions. If any court of competent jurisdiction determines that any of the
Restrictive Covenants or any part thereof is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and, in
its reduced form, such provision shall then be enforceable. The Executive
acknowledges that the Company's business extends throughout the geographical
area outlined above, and that the geographic scope of the covenants contained
herein is reasonable.
INDEMNITY
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18. Except for acts of dishonesty, wilfully fraudulent or criminal acts or
misconduct, or other wilful wrongful acts or omissions, the Company agrees to
indemnify and save the Executive harmless from and against all costs including
reasonable attorneys fees as assessed by the Court, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by him in respect of any civil, criminal or administrative action or
proceeding to which the Executive is made a party by reason of having been an
officer of the Company, if the Executive acted honestly and in good faith with a
view to the best interests of the Company.
LIABILITY INSURANCE
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19. The Company covenants and agrees to obtain, as soon as possible after
the execution of this Agreement, liability insurance for the Executive with
respect to his performance of his duties as and while an officer of the Company.
WHOLE AGREEMENT
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20. This Agreement constitutes and expresses the whole agreement of the
parties hereto with reference to the employment of the Executive by the Company,
and with reference to any matters or things herein provided for or hereinbefore
discussed or mentioned with reference to such employment. All promises,
representations, collateral agreements and understandings relative thereto not
incorporated herein are hereby superseded and cancelled by this Agreement.
GENERAL
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21. All notices, request, demands or other communications by the terms
hereof required or permitted to be given by one party to the other shall be
given in writing by personal delivery or by registered mail, postage prepaid,
addressed to the other party or delivered to the other party as follows:
(a) to the Company at:
Xxxxxxxxxx.xxx Ltd.
#000-0000 Xxxx Xxxxxx Xxx
Xxxxxx XX X0X 0X0
Attention: Chief Executive Officer
Facsimile No: (000) 000-0000
with a copy to:
XXXXXXX XXXXX & XXXXXXXXX
Suite 2100, 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx XxXxxxx
Facsimile No: (000) 000-0000
(b) to the Executive at:
Xxx Xxxxxx
0000 Xxxxxxxx Xx.
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Xxxx, Xxxxxx
00000
X.X.X.
or such other addresses as may be given by either of them to the other in
writing from time to time, and such notices, requests, demands, acceptances or
other communications shall be deemed to have been received when delivered or, if
mailed, on the second business day after mailing thereof; provided that if any
such notice, request, demand, acceptance or other communication shall have been
mailed and if regular mail service shall be interrupted by strikes or other
irregularities before the second business day after the mailing thereof, such
notice, request, demand, acceptance or other communication shall be deemed not
to have been received unless the same has been personally delivered and served
on the party to whom the same is addressed.
22. This Agreement shall be governed by and interpreted under the internal
substantive laws of the State of Nevada and the Federal Laws of the United
States of America applicable therein without regard to principals of conflicts
of law and the parties hereto irrevocably attorn to the jurisdiction of the
Courts of the State of Nevada in respect of claims brought by the Company to
enforce sections 11 to 14 of this Agreement unless the Company elects to invoke
the Arbitration provisions in section 15 of this Agreement.
23. All dollar amounts referred to in this Agreement are expressed in
United States funds.
24. (a) This Agreement is personal to the Executive and may not be assigned by
him.
(b) Upon notice to the Executive, this Agreement may be assigned to an
affiliate of the Company, provided that notwithstanding such
assignment, the Company continues to guarantee the performance by such
assignee of its obligations hereunder.
(c) Except as aforesaid, this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
assigns, including, in the case of the Executive, his heirs, executors
and administrators.
25. Time shall be of the essence of this Agreement and of every part
hereof.
26. The parties acknowledge and agree that sections 11 to 15 and 22 of
this agreement, and the obligation to pay any amounts due to the
Executive but unpaid at the date of termination, shall survive the
termination or expiration of this Agreement.
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27. The Executive acknowledges that he has read and understood this
Agreement, and that he has been given the opportunity to obtain
independent legal advice in connection with this Agreement and its
terms.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
SIGNED, SEALED AND DELIVERED ) EXPRESS VACATIONS, INC.
in the presence of: )
)
)
) Per: /s/ Xxxx Xxxxx
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) Authorized Signing Officer
)
)
)
)
)
)
/s/ Xxxxxx Xxxxxxxxxx ) /s/ Xxx Xxxxxx
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Witness ) Xxx Xxxxxx
