1
TYPE> EX 10.44
RESIGNATION AGREEMENT
This Resignation Agreement (this "Agreement") is entered into
as of October 31, 2000, by and between XXX X. XXXXXX (the "Executive") and
GLOBAL VACATION GROUP, INC., a New York corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Company and Executive are parties to a Senior
Management Agreement, dated as of May 3, 1999 (the "Management Agreement");
WHEREAS, the Executive currently serves as Executive Vice
President and Chief Financial Officer of the Company; and
WHEREAS, the Company and the Executive desire to enter into
this Agreement to provide for the terms and conditions by which the Executive's
employment with the Company will cease as of October 31, 2000 (the "Resignation
Date").
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the parties hereto agree as follows:
ARTICLE I
TERMS AND CONDITIONS OF RESIGNATION
1.1 RESIGNATION OF EXECUTIVE. The Company and the
Executive hereby agree that the employment of Executive as Executive Vice
President and Chief Financial Officer of the Company shall cease as of the
Resignation Date and that Executive shall be deemed to have resigned without
"Good Reason" (as such term is defined in the Management Agreement) as of such
date. The Executive also resigns, effective as of the Resignation Date, from all
positions, including directorships, which Executive may have in the Company and
its Subsidiaries, including without limitation, Friendly Holidays, Inc., Island
Resort Tours, Inc., International Travel & Resorts, Inc., Classic Custom
Vacations, Global Vacation Management Company, GVG Technology, Inc., Sunshine
Vacations, Inc., Haddon Holidays, Inc., Globetrotters Vacations, Inc., GVG
Finance Company and Globetrotters, Inc. By execution of this Agreement, the
Executive hereby acknowledges that he has resigned without Good Reason effective
as of the Resignation Date.
1.2 SEVERANCE PAY FOR EXECUTIVE. Except as otherwise
provided below, the parties hereby agree that Executive or Beneficiary, as the
case may be pursuant to Section 1.11 hereof, shall be owed severance
2
payments (the "Severance Payments") equal to an aggregate of Two Hundred
Seventy-Five Thousand Dollars ($275,000), less applicable withholding as
determined by the Company. Except as otherwise provided below, the Severance
Payments shall be payable in equal bi-monthly installments from the Company
commencing on the Company's first normal payroll date following the Resignation
Date and continuing for a period of twelve (12) months ending on October 31,
2001 (the "Severance Period"). In addition, to the extent permitted under the
Company's medical plans during the Severance Period, Executive shall also be
entitled to receive any medical benefits currently provided by the Company to
Executive that remain available to other Company executives under the Company's
executive medical plans or, if coverage is not permitted under the Company's
medical plans, then the Company shall pay Executive's COBRA coverage for the
Severance Period (collectively, the Severance Payments and the other benefits
provided hereunder are referred to as the "Severance Benefits"). All computers,
automobiles or other items provided or leased by the Company to the Executive
shall be returned by the Executive to the Company in good working order within
five days after the Resignation Date, except that Executive shall be permitted
to keep the laptop computer furnished to him by the Company. The Company shall
have no obligation to pay the Executive any sums, including any attorney's fees,
except as provided in this Section 1.2.
1.3 OPTIONS. Notwithstanding anything to the contrary
contained in any stock option agreements between the Company and Executive, all
stock options unvested as of the Resignation Date (potentially exercisable for
225,000 shares) held by Executive with respect to the common stock of the
Company shall terminate effective as of the Resignation Date, and all stock
options vested as of the Resignation Date (currently exercisable for 37,500
shares) shall remain in full force and effect after the Resignation Date and
will terminate, if unexercised, at 5:00 P.M. (EST) on October 31, 2001 (the
"Vested Shares").
1.4 STATUS OF MANAGEMENT AGREEMENT. The Management
Agreement is hereby terminated and all obligations between Executive and the
Company are hereby governed by this Agreement.
1.5 MUTUAL RELEASE.
(a) Except in connection with the obligations of
the parties under this Agreement, for which no release is granted until such
obligations are satisfied in full according to the terms hereof, and except for
any actions or omissions which constitute gross negligence or fraud, Executive
on the one hand and the Company on the other hand, hereby remise, release and
forever discharge the other and their successors, assigns and affiliates from
any and all manner of action and actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, reckoning, contracts, controversies,
-2-
3
agreements, liabilities, promises, damages, judgments, claims or demands of
whatsoever kind or nature, in law or in equity which either the Executive on the
one hand and the Company on the other hand, may have against the other from the
beginning of time to the date hereof.
(b) These releases shall include, subject to the
limitations set forth in (a) above, by way of example and not limitation, all
claims, actions, causes of action, liabilities, demands, rights, damages, costs,
attorneys' fees, expenses and controversies of every kind which arise out of,
relate, or are based on (i) Executive's employment with the Company and its
Subsidiaries or the resignation thereof, (ii) statements, acts or omissions by
Company and its agents (whether actual or apparent), employees or
representatives whether in their individual or representative capacities, (iii)
express or implied agreements or contacts between the parties, and (iv) the
Civil Rights Act of 1866, 1964, and 1991, the Employee's Income Retirement
Security Act of 1974, the Age Discrimination in Employment Act, the Older
Workers Benefit Protection Act, the Rehabilitation Act of 1973, and all other
state and federal statutes.
1.6 WARRANTIES.
(a) EXECUTIVE WARRANTIES. Executive warrants and
represents as follows:
(i) He has read this Agreement, and
agrees to the conditions and obligations set forth in it;
(ii) He has had a reasonable time to
consider the terms of this Agreement after being advised by
Company to seek legal counsel;
(iii) With respect to the general release
in Section 1.5, he agrees and understands that he is
specifically releasing all claims under the Age Discrimination
in Employment Act, as amended, 29 U.S.C. Section 621 et seq.
He further understands that he has at least twenty-one (21)
days to consider the release of such claims; that if he signs
this Agreement, he may revoke it within seven (7) days after
signing; and that this Agreement shall not be enforceable
until the seven-day revocation period has expired without
revocation. Revocation can be made by delivering a written
notice of revocation to Xxxxx Xxxxxxxxxx, Global Vacation
Group, Inc., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000. For such revocation to be effective,
notice must be received no later than 5:00 p.m. on the seventh
calendar day after he signs this Agreement;
-3-
4
(iv) He has not assigned any of his
rights or interests under this Agreement, the Management
Agreement, or any other agreement or arrangement between him
and the Company;
(v) He voluntarily executes this
Agreement after having had full opportunity to consult with
legal counsel and without being pressured or influenced by any
statement or representation of any person acting on behalf of
Company including the officers, agents and attorneys for
Company; and
(vi) He has full and complete legal
capacity to enter into this Agreement.
(b) COMPANY WARRANTIES.
(i) The execution, delivery and performance of
this Agreement has been duly authorized by all necessary
corporation action of the Company, and this Agreement has been
duly and validly executed and delivered by the Company and it
constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms; and
(ii) The Company has not assigned any of its
rights or interests under this Agreement, the Management
Agreement or any other agreement or arrangement between the
Company and the Executive.
1.7 POST-EMPLOYMENT RELATIONSHIP. Following the
Resignation Date, Executive agrees that, at the request of the Company's
Chairman of the Board or Chief Executive Officer, he will provide advice and
consultation to the Company with respect to any matters mutually approved by the
Executive and the Company.
1.8 NON-DISPARAGEMENT. Subsequent to the date hereof,
Executive agrees not to intentionally make to any customer, supplier, employee
or business relation or affiliate of the Company or the general public any
statement that materially disparages the Company or its Subsidiaries or
Affiliates (including their respective officers, directors, shareholders and
employees).
1.9 CONFIDENTIAL INFORMATION AND GOODWILL; INVENTIONS.
Executive acknowledges and agrees that:
(a) As a necessary function of Executive's
employment with the Company, Executive had access to and utilized Confidential
-4-
5
Information which constitutes a valuable and essential asset of the Company's
business.
(b) The Confidential Information, observations
and data obtained by Executive during the course of his employment concerning
the business and affairs of the Company are the property of the Company,
including information concerning the acquisition opportunities in or reasonably
related to the Business of which Executive became aware during his employment by
the Company. Therefore, Executive agrees that he will not disclose to any
unauthorized Person or use for his own account any of the Confidential
Information without the Board's written consent. Within ten (10) days following
the date of this Agreement, Executive agrees to deliver to the Company all
memoranda, notes, plans, records, reports and other documents (including copies
thereof) relating to the Business or any other Confidential Information which is
in the possession or control of Executive.
(c) Executive acknowledges that all inventions,
innovations, developments, improvements, methods, designs, analyses, drawings,
software, reports and all similar or related information (whether or not
patented or patentable) developed by Executive during his employment by the
Company which (i) directly or indirectly relate to the Company or its Affiliates
or the Business, or (ii) resulted from any work performed by Executive while
employed by the Company or its Affiliates belongs to the Company and its
Affiliates and Executive represents and warrants that, except to the extent
previously transmitted to the Company, no such inventions, innovations,
developments, improvements, methods, designs, analyses, drawings, software,
reports and all similar or related information (whether or not patented or
patentable) exist.
1.10 NONCOMPETITION AND NONSOLICITATION.
(a) Executive acknowledges that in the course of
his employment with the Company, he has become familiar with the Company's and
its Affiliates' trade secrets and with other Confidential Information concerning
the Company and that his services were of special, unique and extraordinary
value to the Company and its Affiliates. Therefore, Executive agrees that, until
October 31, 2001 (the "Noncompete Period"), he shall not, without the Company's
prior written consent, directly or indirectly own, manage, control, participate
in, consult with, render services for, or in any manner engage in any business
competing with the Business of the Company or its Subsidiaries or Affiliates or
any businesses with which the Executive has knowledge that the Company or its
Subsidiaries has plans to engage in, except that:
(i) Executive may own stock in any
company that competes with the Business provided that (a) the
company is
-5-
6
publicly traded on a national stock exchange, and (b)
Executive does not own more than 1% of the outstanding shares
of the company; and
(ii) Executive may provide consulting
services to or render services for the charge and credit card,
travelers check and small business services groups of the
American Express Travel Related Services Company, Inc.,
provided that none of the aforementioned business units
compete with the Business.
(b) During the Noncompete Period and for a
period of twelve (12) months thereafter, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any Subsidiary to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company or
any Subsidiary and any employee thereof or (ii) induce or attempt to induce any
customer, supplier, vendor, licensee or other business relation of the Company
or any Subsidiary to cease doing business with the Company or such Subsidiary,
or to modify its business relationship with the Company in a manner adverse to
the Company or any Subsidiary or in any way disparage the Company or its
Subsidiaries to any such customer, supplier, vendor, licensee or business
relation of the Company or any Subsidiary.
(c) If, at the time of enforcement of Section
1.9 or 1.10 of this Agreement, a court holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to Confidential
Information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
1.11 DEATH OF EXECUTIVE DURING SEVERANCE PERIOD. In the
event of the death of Executive prior to the expiration of the Severance Period,
the Severance Payments shall be payable to Beneficiary in accordance with
Section 1.2 hereof. In the event Executive designates more than one individual
as a Beneficiary, the Company shall pay to each such Beneficiary his or her pro
rata share of the Severance Payments owed by the Company hereunder. In no
-6-
7
event shall there be more than three individuals identified as a Beneficiary at
any given time.
1.12 DEFINITIONS.
(a) "Affiliate" of any Person means any other
Person which directly or indirectly controls, is controlled by or is under
common control with such Person.
(b) "Beneficiary" means Xxxx Xxxxxx, and, in the
event of the death of Xxxx Xxxxxx, means Xxxxxxx and Xxxxxxx Xxxxxx, or such
other individual or individuals as Executive shall designate in writing to the
Company.
(c) "Board" means the Company's board of
directors or the board of directors or similar management body of any successor
of the Company.
(d) "Business" means any business that the
Company or its Subsidiaries now engages in, including without limitation the
business of providing and distributing wholesale travel and vacation packages
and other travel products.
(e) "Competitive Activity" means any business or
activity of Executive or any third party that is the same as the Business or
competitive with the Business.
(f) "Confidential Information" means all
confidential information and trade secrets of the Company and its Affiliates
including, without limitation, the following: the identity, written lists, or
descriptions of any customers, vendors, referral sources or Organizations;
financial statements, cost reports, or other financial information; contract
proposals or bidding information; business plans; training and operations
methods and manuals; personnel records; fee structures; and management systems,
policies or procedures, including related forms and manuals. "Confidential
Information" shall not include any information or knowledge which: (a) is in the
public domain other than by Executive's breach of this Agreement or (b) is
disclosed to Executive lawfully by a third party who is not under any obligation
of confidentiality.
(g) "Management Agreement" has the meaning set
forth in the first WHEREAS clause set forth above.
(h) "Organization" means any organization that
has contracted with the Company for the performance of services in connection
with the Business.
-7-
8
(i) "Person" means an individual, a partnership,
a limited liability company, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization or a
governmental entity or any department, agency or political subdivision thereof.
(j) "Resignation Date" has the meaning set forth
in the third WHEREAS clause set forth above.
(k) "Subsidiary" means any corporation of which
the Company owns securities having a majority of the ordinary voting power in
electing the board of directors directly or through one or more subsidiaries.
ARTICLE II
GENERAL PROVISIONS
2.1 NOTICES. Any notice provided for in this Agreement
must be in writing and must be delivered to the recipient at the address below
indicated:
To the Company:
c/o Classic Custom Vacations
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
With copies to:
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxxxxx X. Xxxxx, Esq.
To the Executive:
Xxx X. Xxxxxx
00 Xxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given five (5) business
-8-
9
days after mailing by first class mail, certified return receipt requested, one
business day after delivery to a receipted courier for next business day
delivery, or upon confirmed transmission by telex or facsimile.
2.2 SEVERABILITY. Except as provided in Section 1.10(c),
whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not effect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
2.3 COMPLETE AGREEMENT. This Agreement, the Management
Agreement and those documents expressly referred to herein embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
2.4 COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement
may be executed on separate counterparts, each of which is deemed to be an
original and all of which taken together constitute one and the same Agreement.
This Agreement may be executed and delivered by facsimile transmission.
2.5 DEFINED TERMS. Terms not otherwise defined in this
Agreement shall have the meanings assigned to such terms in the Management
Agreement.
2.6 SUCCESSORS AND ASSIGNS. This Agreement is intended to
bind and inure to the benefit of and be enforceable by Executive and the Company
and their respective successors and assigns; provided, however, that this
Agreement is fully-assignable by the Company but the rights, duties and
obligations of the Executive under this Agreement shall not be assignable by the
Executive without the Company's express prior written consent.
2.7 CHOICE OF LAW. This Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of New York.
-9-
10
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
EXECUTIVE:
-------------------------------------
Xxx X. Xxxxxx
GLOBAL VACATION GROUP, INC.
By:
-----------------------------
Xxxxx X. Xxxxxxxxxx
Secretary
-10-
