EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 1st day of
May, 1999 (the "Effective Date"), by and between New Commodore Cruise Lines
Limited, a corporation organized under the laws of Bermuda ("Company"), and Xxxx
Xxxxxxxx ("Employee"). The Company desires to develop, promote and expand its
cruise business (the "Company's Cruise Business") and to further such goals to
secure the continued services of Employee. In consideration of the premises and
the mutual agreements herein, the Company and Employee hereby agree as follows:
1. EMPLOYMENT.
The Company hereby employs Employee, and Employee hereby accepts and
agrees to such employment, commencing on the Effective Date. Employee shall be
employed by the Company and Commodore Holdings Limited as Senior Vice President
of Finance and Chief Financial Officer. Employee shall have the duties and
responsibilities normally associated with these offices. Employee shall report
to the Chief Executive Officer of the Company. Unless earlier terminated under
Paragraphs 4 or 7, below, this Agreement shall be in effect for a period of
three years (the "Term"). While employed by the Company, Employee shall not,
without the prior written consent of the Company, render his professional
services to anyone other than the Company, and will devote his full professional
time, attention, and best efforts to the business of the Company and the
fulfillment of his duties and obligations hereunder. Employee will not, while
employed by the Company, accept any position, employment, gratuities,
compensation, promises, commitments, reimbursements or funds or the equivalent
of funds from any person, corporation, partnership or other business entity
whatsoever engaged in any aspect of the business in which the Company is engaged
or which is a supplier or customer of the Company.
2. COMPENSATION.
(a) For all services rendered by the Employee pursuant to Paragraph
1 hereof, the Company shall pay to and provide for Employee (i) a salary of
$150,000 per annum, which salary shall be increased to $156,000 as of October 1,
1999, and (ii) any additional benefits provided herein.
(b) Employee shall be entitled to such bonuses as the Company grants
to him in its sole discretion.
3. VACATION AND OTHER BENEFITS.
(a) During the Term, Employee shall be entitled to vacations
(without deduction in compensation or benefits) of such duration and at such
time or times as may be consistent with prevailing vacation policies of the
Company, but not less than three weeks per calendar year. Such vacation time
shall be adjusted pro rata for the number of months worked in the initial and
final partial years of the Term. Unused available vacation time shall not
cumulate from year to year. Unused available vacation time shall be paid to
Employee at his normal salary rate in the event of
termination of this Agreement for any reason. To the extent otherwise eligible,
Employee may participate in any group hospitalization, medical, stock, option,
bonus or other similar Company benefit plan which is or may become generally
available to executive employees of the Company.
(b) With respect to medical insurance Employee may elect to maintain
his present insurance instead of being covered under the Company's plan. In such
event, the Company will pay Employee the lesser of the cost of his medical
insurance premiums or the cost to the Company of the premiums saved by not
including him in the Company's plan.
4. INCAPACITY.
(a) If Employee is unable at any time during the Term of this
Agreement to perform his services by reason of physical or mental illness or
incapacity, he shall receive his then regular compensation for a cumulative
period of 90 days per calendar year but in no event beyond the Term of this
Agreement. Such leave time shall be adjusted pro rata for the number of months
worked in the initial and final partial years of the Term. Unused medical leave
shall not cumulate from year to year. Unused available medical leave shall be
paid to Employee at his normal salary rate in the event of termination of this
Agreement for any reason. If Employee is unable to consistently perform his
material duties under this Agreement for any period of 90 consecutive days by
reason of physical or mental illness or incapacity, the Company shall continue
payment of Employee's salary for 90 more days after the first 90 days, PROVIDED,
HOWEVER after the second 90 days the Company may terminate this Agreement at any
time without any further liability to Employee beyond the second 90 days of
salary. Periods of consecutive incapacity arising from the same mental or
physical condition which are less than 90 days each shall be cumulated and
considered consecutive. The Board of Directors of the Company shall determine in
its sole discretion in good faith whether Employee is ill or incapacitated for
purposes of this Paragraph 4(a).
(b) In the event of death of Employee at any time during the term of
this Agreement, the Company shall pay to his surviving spouse, if any, the pro
rata salary to which Employee was entitled through the date of his death plus a
death benefit of six months of additional salary. If Employee has no surviving
spouse, then the Company shall pay the aggregate amount of such pro rata salary
and death benefit to Employee's estate.
5. EXPENSES. Employee shall be reimbursed by the Company for his
ordinary and necessary business expenses upon presentation of receipts therefor
to the Company. In addition, he shall receive a car allowance of $500 per month.
6. TERM. The initial term of this Agreement shall be for a period of
three years, unless earlier terminated under Paragraph 4, above, or Paragraph 7,
below. The Company has the option to extend this Agreement for two additional
years, subject again to Paragraphs 4 and 7. If the Company elects to so extend
this Agreement it shall notify Employee in writing not later than six months
before the end of the initial term hereof.
7. TERMINATION FOR CAUSE. If at any time Employee shall (i) commit an
act of theft or embezzlement from or fraud on the Company; (ii) shall
consistently neglect his duties while employed by the Company (except as
provided in Paragraph 4(a)) which behavior continues after
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receiving written notice from the Company that he has been consistently
neglecting his duties; (iii) shall willfully refuse to continue his employment
with the Company (except as provided in Paragraph 4(a)); (iv) shall fail
materially to comply with the Company's policies in good faith; (v) shall be in
material breach or default of this Agreement; (vi) shall have materially
breached a representation or warranty herein; or (vii) shall commit an act of
moral turpitude or illegality that brings the reputation of the Company into
public disrepute or causes the Company to be generally viewed unfavorably by
customers or suppliers, the Company may forthwith terminate this Agreement by
written notice and shall have no further liability hereunder except for
compensation accrued to the date of such termination notice or the first date of
willful refusal by Employee to continue his employment, as the case may be.
8. TRADE SECRETS AND EMPLOYMENT OF COMPANY EMPLOYEES.
(a) During the Term and thereafter, Employee shall not, except as
required by Employee's duties to the Company, without the Company's prior
written consent, directly or indirectly, disclose, furnish, or cause to be
disclosed or furnished, or use to the detriment of the Company any proprietary,
confidential or trade secret information, whether or not patentable or
copyrightable, belonging to the Company which Employee gains knowledge of during
his employment and which was not known to Employee prior to his employment with
the Company, whether or not developed by Employee and whether or not marked or
designated as proprietary, confidential, or trade secret.
(b) For a period from the date hereof until six months from the date
of his termination of employment with the Company for any reason, Employee shall
not, directly or indirectly:
(1) induce or attempt to induce away, or aid, assist or abet any
other party or person in inducing or attempting to induce away any
person from his or her employment with the Company;
(2) hire or attempt to hire any former employee of the Company
within one year after the termination for any reason of such
employee's employment with the Company;
(3) take away or attempt to take away, or aid, assist or abet
any other party or person in taking away or attempting to take away,
any customers of the Company who were such customers at the date of
Employee's termination of employment; or
(4) in any form copy, duplicate or otherwise compile any list of
past, present, or potential customers of the Company except on an
as-needed basis while employed by the Company and upon termination
of Employee's employment with the Company for any reason Employee
shall immediately return all such lists, and all copies, duplicates,
and compilations thereof, to the Company.
Employee acknowledges that a violation of this Paragraph 8(b) would
lead to inevitable injury to the Company by interference with critical customers
and employees of the Company.
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9. NONCOMPETITION.
(a) For a period from the date hereof until the date specified in
Paragraph 9(b), below, Employee will not, whether individually or as a member of
a partnership or as an officer, director, investor, stockholder, creditor,
employee or consultant of a corporation or of any other person, limited
liability company, partnership or other entity, engage or seek to engage in a
business the same as or similar to the Company's Cruise Business in the same
market that the Company is operating. The ownership by Employee of 5% or less of
the outstanding stock of any corporation engaged in any such competitive
business, but whose stock is listed on a national securities exchange or is a
NASDAQ listed stock, shall not be deemed by itself to be a violation by Employee
of this paragraph. In the event that for any reason there should be a
determination by a court of competent jurisdiction that the provisions of this
paragraph are too broad or unreasonable or unenforceable as such, then such
provisions shall be deemed modified and fully enforceable as so modified to the
extent that such a court would find them fair, reasonable and enforceable under
the circumstances.
(b) This Paragraph 9 shall be in effect for the longer of one year
or the unexpired term of this Agreement in the event the Employee voluntarily
terminates his employment with the Company or the Company terminates the
Employee under Paragraph 7. In any other event of termination of this Agreement,
this Paragraph 9 shall terminate on the date of the termination of this
Agreement.
10. MATERIALITY AND REMEDIES. Employee acknowledges that a violation of
the noncompetition or nondisclosure provisions of Paragraphs 8 and 9 will cause
irreparable injury to the Company in that its vital confidential or proprietary
knowledge will become public knowledge causing it to lose its competitive
advantage and goodwill. Therefore, since damage to the Company will be difficult
to ascertain, the Company shall be entitled without the showing or proving of
any factual damages sustained to a temporary restraining order or injunction
granted by a competent court of equity to prevent a breach or further breach of
Paragraphs 8 and 9 of this Agreement. If a court should nevertheless require a
showing of damages, then the Company may meet this burden by showing it has a
legitimate business interest to protect and that competition itself will be
injurious to the Company. Without regard to whether or not the Company seeks or
is granted equitable relief, the Company shall not be prejudiced in its right to
seek and be awarded damages for breach.
11. CHANGE OF CONTROL.
(a) Unless this Agreement has been earlier terminated before a
Change of Control of The Company, as defined below, Employee shall have the
option in his discretion to terminate this Agreement in writing within 30 days
after the date of the Change of Control and receive an amount equal to a
continuation of his salary and other benefits for the greater of:
(1) one year from the date of the Change of Control, or
(2) the time remaining under this Agreement after the date of
the Change of Control.
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Payment shall be made to Employee in one lump sum within 30
days after receipt of Employee's notice of termination.
(b) A Change of Control shall have occurred on the date that a
majority of the persons on the Board of Directors of the Company are persons (i)
who obtained their seats other than in the normal course as a result of death or
voluntary resignation and (ii) whose appointment to the Board was not with the
approval of the majority of the directors in office immediately before his
election to the Board of Directors.
12. INDEMNIFICATION. The Company shall indemnify Employee including,
without limitation, for legal fees, to the fullest extent provided or permitted
under Bermuda law to past or current directors and officers of the Company and
its affiliates in the performance of their duties which indemnification shall
survive the termination of this Agreement, anything else to the contrary in this
Agreement notwithstanding.
13. ARBITRATION. Any disagreement between Employee and the Company
concerning the interpretation or fulfillment of this Agreement shall be
submitted to arbitration pursuant to the rules then prevailing of the American
Arbitration Association in Miami, Florida. The ruling of the arbitrator shall be
final and binding on the parties and shall be enforceable in any court having
jurisdiction thereof. The arbitrator shall have the authority to award the costs
of the arbitration, including, without limitation, the legal fees and costs
incurred by the parties, to either party as he deems appropriate.
14. ENTIRE AGREEMENT. This Agreement contains the entire agreement
concerning employment arrangements between the Company and Employee and
supersedes all prior written and oral understandings of the parties with respect
thereto. This Agreement may not be changed except by a writing signed by the
party against whom the enforcement of any waiver, change, extension,
modification or discharge is sought.
15. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered in person or sent by
certified mail to the party involved at the address shown on the signature page,
or to such other address as either party may specify to the other in writing.
The date two days after the date of mailing of such notice shall be deemed to be
the date of delivery thereof.
16. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall
be binding upon, the Company, its successors and assigns, Employee, his heirs
and personal representatives, but may not be assigned by Employee.
17. SEVERABILITY. In the event any term, paragraph or provision of this
Agreement or its application to any circumstances shall to any extent be deemed
invalid or unenforceable, the remainder of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
18. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
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19. CONSULTATION OF ATTORNEYS. The Company and Employee acknowledge
that they each have had the opportunity to consult its or his respective
attorney with respect to this Agreement and that they each understand its
contents.
20. PARAGRAPH HEADINGS. The paragraph headings contained herein are for
reference only and shall not in any way
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first written above.
EMPLOYEE COMPANY
NEW COMMODORE CRUISE LINES LIMITED
By: /s/ XXXXXXXXX X. XXXXX
---------------------------------------
/s/ XXXX XXXXXXXX Its: CHIEF EXECUTIVE OFFICER
---------------------------------
Xxxx Xxxxxxxx
ADDRESS: ADDRESS:
_________________________________ 0000 Xxxxxxxxx Xxxxxxxxx
_________________________________ Suite 385, South Tower
_________________________________ Xxxxxxxxx, XX 00000
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