1
EXHIBIT 10.9
EMPLOYMENT CONTRACT
THIS EMPLOYMENT CONTRACT made as of the 1st day of November, 1999 (the
"Effective Date") between Xxxxx Xxxxxx (hereinafter referred to as "Employee")
and WorldTravel Technologies, LLC, a Georgia limited liability company
(hereinafter referred to as the "Company").
WITNESSETH
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company; and
WHEREAS, the parties intend to supersede all prior correspondence,
letters, and negotiations between them with the terms set forth herein;
NOW, THEREFORE, it is hereby agreed as follows:
1. EMPLOYMENT OF EMPLOYEE. The Company hereby employs Employee for a
period of three (3) years commencing on the Effective Date of this Employment
Contract (the "Initial Term"). Employee agrees to such employment on the terms
and conditions herein set forth and agrees to devote his best efforts to his
duties under his Employment Contract and to perform such duties diligently
and efficiently and in accordance with the directions of the Company.
During the term of his Employment Contract, Employee shall be employed
as Executive Vice President--Sales & Marketing of WorldTravel Technologies,
reporting directly to the CEO of the Company, and shall be responsible for
various sales, marketing and budgeting and for such other further
responsibilities as are from time to time assigned to him by the CEO of the
Company.
Employee shall devote substantially all of his business time,
attention and energies to the Company, shall act at all times in the best
interests of the Company, and shall not during the term of this Employment
Contract be engaged in any other business activity, whether or not such
business is pursued for gain, profit, or other pecuniary advantage, but his
Employment Contract shall not be construed as preventing Employee from
investing his personal assets in any form or manner that will not require any
services by Employee in the operation of the affairs of the business in which
such investments are made; provided; however, that Employee shall not be
permitted to make any investment in any business competing with the business of
the Company.
2. COMPENSATION AND BENEFITS.
(a) Employee's annual salary during the first year of the term of
his Employment Contract shall be $140,000 (the "Base Salary"). The Base Salary
shall be paid by the Company monthly in arrears or in accordance with the
Company's regular payroll practice.
(b) Employee shall be eligible for a discretionary bonus at each
year end. The CEO shall determine the amount, if any, based on the performance
of the Company, and the Employee provided, however, that to receive the Bonus,
Employee must be an "active employee in good standing" on the date that the
Bonus is paid. For purposes of this Employment Contract, "active employee in
good standing" shall mean that Employee (i) has not terminated employment with
the Company for any reason; (ii) is not on probation of any kind from the
Company; (iii) has not given notice under this Employment Contract pursuant to
Section 6 hereof; and (iv) has not
2
received written notice from the Company pursuant to Section 6 hereof. Bonuses
are subject to the Company's sole discretion as to the occurrence and amount of
any such Bonus; provided however, that to receive any such Bonus, Employee must
be an "active employee in good standing" on the date any such Bonus is paid.
Additionally, the Bonus, if any, shall not exceed 150% of Employee's annual
base salary during any year of this Agreement. Each year, the Employee and CEO
shall agree on a sales performance component (to be formulated at a future
date) and discretionary potential based on account reviews, road show
presentations, sales management and sales goals.
(c) Additionally, it is the Company's intent to include
Employee in the group of WorldTravel Technology management who may be eligible
to receive long term incentive compensation in the form of stock options as may
be determined by the board of directors of the Company.
(d) The Company shall provide Employee medical coverage
substantially similar to the coverage promised to employees of the Company.
(e) The Company also agrees that Employee shall be entitled to
four (4) weeks of paid vacation per calendar year; provided, however, that if
his Employment Contract is not in effect for any full calendar year, Employee
shall have only a pro rata portion of such paid vacation during that calendar
year.
(f) Employee understands and agrees that he must be an active
employee in good standing of the Company on the date any of the payments in
this Section 2 become due and payable in order to receive such payments.
3. PERSONNEL POLICIES. Employee shall conduct himself at all times in a
businesslike and professional manner as appropriate for a person in his
position and shall represent the Company in all respects as complies with good
business and ethical practices. In addition, Employee shall be subject to and
abide by the policies and procedures of the Company applicable to personnel of
the Company, as adopted from time to time.
4. BUSINESS EXPENSES. Employee shall be reimbursed monthly by the Company
for ordinary, necessary and reasonable expenses incurred by him in the
performance of his duties for the Company, provided that Employee shall first
document said business expenses in the manner generally required by the Company
under its policies and procedures, and in any event, the manner required to
meet applicable regulations of the Internal Revenue Service relating to the
deductibility of such expenses.
5. AUTOMOBILE EXPENSES. The Company shall pay a monthly allowance of
$500.00 in order to defray a portion of the costs of Employee providing and
making available the use of an automobile. Prior to the initial reimbursement
hereunder and at all times thereafter, Employee shall provide the Company with
proof of insurance coverage for the operation of his automobile in such form
and amounts as is reasonably satisfactory to the Company. In addition, upon
the request of the Company and the agreement of the Company to pay the costs
hereto, such insurance policies shall name the Company as an additional
insured. The Company shall have
3
the option to provide automobile insurance for Employee if it is able to
provide such insurance coverage at a cost less than that presently being borne
by Employee for the same or similar coverage. In the event that the Company
exercise such option, the monthly allowance of $500.00 will be adjusted to
reflect the amount of automobile insurance coverage being provided by the
Company.
6. TERMINATION AND RENEWAL.
(a) This Employment Contract shall terminate immediately upon the
death of Employee or upon the discharge of Employee for "good cause". For the
purposes of this Employment Contract, "good cause" means any act of fraud or
dishonesty (whether or not in connection with the Company's Business as
hereinafter defined), competing with the Business of the Company either
directly or indirectly, the breach of any provision of this Employment Contract
by Employee, failure to comply with the decisions of the Company, failure to
discharge Employee's duty of loyalty to the Company, or any other matter
constituting "good cause" under the laws of the State of Georgia.
(b) This Employment Contract also shall terminate immediately upon
written notice to Employee if Employee shall at any time be unable to perform
the essential functions of his job hereunder, by reason of a physical or mental
illness or condition, with or without reasonable accommodation, for a
continuous period of three (3) consecutive calendar months.
(c) Any earned but unpaid Base Salary and any other benefits provided
herein shall be paid to Employee up to the effective date of termination of
this Employment Contract for whatever reason, including the death of Employee,
and not thereafter, subject to the specific provisions of subsection 2(b).
(d) The Company may terminate this Employment Contract immediately
upon the payment to Employee of six (6) months Base Salary (less applicable
withholdings) in which case no further payments under this Employment
Contract shall be made to Employee, provided, however, if the Company
discharges Employee for "good cause", no notice is required and the Company
shall be obligated to pay only for accrued Base Salary (less applicable
withholdings) through the date of discharge.
(e) If not otherwise terminated hereunder, the Employment Agreement
shall terminate at the end of the current Term. This Agreement may be
terminated during the current term provided that Company delivers to the other
six (6) months prior written notice. Upon expiration of the current Term, the
Company may elect to renew this Agreement for two one (1) year terms.
7. RESTRICTIVE COVENANTS.
(a) Acknowledgment of Damage Resulting From Employee's Competition
with the Company. Employee understands and acknowledges that the Company and
its related entities are engaged in the business of providing travel
arrangement, reservation, ticketing and related services and products (the
"Business"), and that because of his position with the Company, he
4
has or will obtain (i) intimate knowledge of the Business and including, but not
limited to, knowledge of "Confidential Information" (as hereinafter defined),
and (ii) knowledge of and relationships with the customers and suppliers used in
connection with the Business of the Company and its related entities. Employee
agrees and acknowledges that such knowledge, access, and relationships are such
that if Employee were to compete with the Company or its related entities
engaged in the Business, by engaging in the Business within the territory
described on Exhibit "A" at any time during the two (2) year period from the
date of Employee's termination of employment with the Company, the Company or
its related entities would suffer harm, and the benefits that the parties
bargained for under this Employment Contract would be severely and irreparably
damaged. Further, Employee acknowledges and agrees that this Employment
Contract, and the covenants not to solicit or compete contained herein, were a
fundamental element of the transactions contemplated by this Employment Contract
and that the transactions contemplated therein would not have been consummated
in the absence of this Section 6. Employee agrees that the covenants contained
in this Section 6 are reasonable and necessary to protect the confidentiality of
the Trade Secrets, and other "Confidential Information" concerning the Company
acquired by Employee. For purposes of this Employment Contract, "Trade Secret"
shall be as defined by applicable state law. The provisions of this Section
shall be interpreted so as to protect those trade secrets and "Confidential
Information", and to secure for the Company the exclusive benefits of the work
performed on behalf of the Company by the Employee under this Employment
Contract, and not to unreasonably limit his ability to engage in employment and
consulting activities in noncompetitive areas which do not endanger the
Company's legitimate interests expressed in this Employment Contract. Employee
also understands and agree that the Company can reasonably amend the definition
of the Business or the scope of the Business at any time upon notice to
Employee.
(b) Covenant Not to Compete with the Company. Employee agrees that,
during the term of this employment under this Employment Contract for a period
of two (2) years following the termination for whatever reasons, with or
without "good cause" or otherwise, of her employment under this Employment
Contract, Employee will not, directly or indirectly, expressly or tacitly, for
himself or on behalf of any entity anywhere within the territory described on
Exhibit "A", (i) act as an officer, manager, advisor, executive, controlling
shareholder, or consultant to any business in which her duties at or for such
business include oversight of or actual involvement in providing services which
are competitive with the services or products being provided or which are being
produced or developed by the Company or its related entities, or are under
investigation by the Company or its related entities at the expiration of this
Employment Contract, (ii) recruit investors on behalf of an entity which
engages in activities which are competitive with the services or products being
provided or which are being produced or developed by the Company or its related
entities, or are under investigation by the Company or its related entities at
the expiration of this Employment Contract, or (iii) become employed by such an
entity in any capacity which would require Employee to carry out, in whole or
in part, the duties Employee has performed for the Company or its related
entities which are competitive with the services or products being provided or
which are being produced or developed by the Company or its related entities,
or are under active investigation by the Company or its related entities at the
termination of the Employment Contract.
(c) Nonsolicitation of Customers. During Employee's employment with the
5
Company, Employee shall not, directly or indirectly without the Company's prior
written consent, contact or solicit any customers or clients of the Company of
its related entities, or prospective customers with whom the Company or its
related entities have solicited business within the last twelve (12) months
and with whom Employee had material contact ("Customer"), for business purposes
unrelated to furthering the Business of the Company or its related entities. For
a period of two (2) years following termination of Employee's employment with
the Company, Employee shall not, directly or indirectly, (i) contact, solicit,
divert or take away, any Customer for purposes of, or with respect to, selling a
product or service which competes with the Business, or (ii) take any
affirmative action in regard to establishing or continuing a relationship with a
Customer for purposes of making or which directly or indirectly results in, a
sale of a product or service which competes with the Business.
(d) Nonsolicitation of Employees. Employee shall not at any time
within two (2) years after the termination of her employment, directly or
indirectly, solicit, employ, or endeavor to entice away from the Company or its
related entities any person who may during Employee's employment or during the
two-year non-solicitation period have been an employee of the Company or its
related entities.
(e) Confidentiality. Employee hereby acknowledges and agrees that
during the Employment Contract, Employee will have access to Trade Secrets and
"Confidential Information" of the Company or its related entities, Employee also
acknowledges that Employee will not disclose or use, directly or indirectly, any
Trade Secrets Employee obtains during the course of Employee's employment
related to the Business for two (2) years from the date of Employee's
termination of employment with the Company. Employee also recognizes that the
services performed by Employee hereunder, are special, unique and extraordinary
and that by reason of Employee's employment with the Company, Employee will
receive, develop, or otherwise acquire "Confidential Information" expect as
required by the pursuit of Employee's duties with the Company or as it is
authorized in writing by the Company, Employee acknowledges that Employee will
not disclose or use, directly or indirectly, any Confidential Information
related to the Business during the course of Employee's employment and for a
period of two years after the date of Employee's termination under this
Employment Contract. The term "Confidential Information" shall mean and include
any information, data and know-how relating to the Business of the Company or
its related entities that is disclosed to Employee by the Company or known to
Employee as a result of Employee's relationship with the Company and not
generally within public domain (whether constituting a Trade Secret or not),
including without limitation, all administrative procedures, product development
and technical data, sales and/or marketing information, customer account
records, payment plans, training and operations material, memoranda and manuals,
personnel records, pricing information, and financial information concerning or
relating to the Business and/or the Customer, employees and the affairs of the
Company or its related entities.
(f) Employee agrees, upon the Company's request, to amend Exhibit "A"
to reflect any changes in the geographical areas in which the Company operates;
and
(g) In the event the covenant of this paragraph are deemed overly
broad, the parties hereto agree that the covenants shall be enforced to the
extent that they are not overly broad.
6
8. Products, Notes, Records and Software. All memoranda, notes, records
and other documents and computer software made or compiled by Employee or made
available to him during the term of this Employment Contract concerning the
Business of the Company or its related entities, including, without limitation,
all customer data, billing information, service data, and other technical
material of the Company or its related entities, shall be the Company's
property and shall be delivered to the Company within two (2) days of the
termination of this Employment Contract.
9. "Ownership of Program materials. Employee acknowledges and agrees that
all right, title and interest in and to any patentable, copyrightable or
uncopyrightable idea, invention, work of authorship (including, but not
limited to, computer programs, software and documentation), formula, device,
improvement, method, process or discovery (any of the foregoing items
hereinafter referred to as an "Invention") generated or developed by Employee
pursuant to this Employment Agreement, furnished by the Company to Employee, or
produced by the Company, shall be and remain the property of the Company.
Employee specifically agrees that all copyrightable inventions generated or
developed pursuant to this Employment Agreement shall be considered works made
for hire and that such Inventions shall, upon creation, be owned exclusively by
the Company. To the extent that any such Inventions, under applicable law, may
not be considered works made for hire, Employee hereby assigns to the Company
without royalty or any other further consideration, all of Employee's right,
title and interest in and to all such Inventions.
Employee shall perform any acts that may be deemed necessary or desirable by the
Company to evidence more fully transfer of ownership of all Inventions
designated pursuant to this Section 9 to the Company, including, but not limited
to, the making of further written assignments in a form determined by the
Company. To the extent that any preexisting rights owned by Employee are
embodied or reflected in the Inventions, Employee hereby grants to the Company
an irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and
license to use, execute, reproduce, display, perform, distribute copies of, and
prepare derivative works based upon such preexisting rights and any derivative
works thereof.
Employee represents and warrants that he has the full right and authority to
perform his obligations and grant the rights and licenses herein granted, and
that he has neither assigned nor otherwise entered into any agreement by which
he purports to assign or transfer his right, title, or any interests in the
Inventions or intellectual property rights inherent therein which would conflict
with his obligations under this Employment Agreement. Employee further covenants
and agrees that he shall not enter into any such agreements."
10. Applicable Law. This Employment Contract is being executed in the
State of Georgia and shall be construed and enforced in accordance with the
laws of said jurisdiction.
11. Waiver of Breach. The waiver by the Company of a breach of any
provision of this Employment Contract by Employee shall not operate or be
construed as a waiver of any subsequent breach by Employee.
7
12. SUCCESSORS AND ASSIGNS. This Employment Contract shall inure to the benefit
of the Company, its subsidiaries and affiliates, and their respective
successors and assigns. This Employment Contract and benefits hereunder are
personal to Employee and may not be assigned or transferred by Employee.
13. ENTIRE AGREEMENT. This instrument contains the entire agreement of the
parties and supersedes all prior agreements regarding Employee's employment by
the Company, including, but not limited to, oral discussions, letter
agreements, or any other document concerning the possibility of employment with
the Company. This Employment Contract may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, changes, modification, extension, or discharge is sought.
14. INVALIDITY OF ANY PROVISION. It is the intention of the parties hereto
that the provisions of this Employment Agreement shall be enforced to the
fullest extent permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the unenforceability
(or the modification to conform with such laws or public policies) of any
provision hereof shall not render unenforceable or impair the remainder of this
Employment Agreement which shall be deemed amended to delete or modify, as
necessary, the invalid or unenforceable provisions. The parties further agree
to alter the balance of the Employment Agreement in order to render the same
valid and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Contract under seal as of the date first above shown.
EMPLOYEE
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
COMPANY
WorldTravel Technologies, LLC
By: /s/ Xxxxx Xxxx
---------------------------
Title: President
------------------------
(CORPORATE SEAL)
8
EXHIBIT "A"
*Markets shall include surrounding geographical areas:
United States of America
