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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
BY THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into as
of the 31st day of March, 1998, AAA Wheelchair Wagon Services, Inc. and
Limousines of South Florida, Inc., each a Florida corporation (collectively,
"Employer") and Xxxxx Xxxxxx ("Employee"), state, confirm and agree as follows:
I. RECITALS
1.1 Employer is currently engaged in the business of providing
transportation services to airports and paratransit for disabled and
disadvantaged persons and travelers in various cities in the Dade, Broward and
Palm Beach Counties in the State of Florida ("Employer's Business"). All
locations in Dade, Broward, Palm Beach and Orange Counties in which material
portions of Employer's Business are, or may during the term of Employee's
employment by Employer be, conducted are hereinafter collectively referred to as
the "Market Area."
1.2 SuperShuttle International, Inc. ("SuperShuttle") has agreed to
acquire all of the outstanding capital stock of Employer pursuant to a Share
Exchange Agreement (the "Share Exchange Agreement") dated as of March 31, 1998
by and among (i) SuperShuttle and (ii) Employer, Wheelchair Ambulance of
Hollywood, Inc., A1A Snowbird Leasing, Inc. and the Shareholders named therein
(collectively, the Sellers).
1.3 Employee is now a key employee of Employer, having substantial
knowledge and expertise in, and having personal relationships affecting, the
operations, business contacts, trade secrets, customer lists, marketing
strategies and other confidential matters of critical significance to the
conduct of Employer's Business and SuperShuttle's business and its future
prospects (the "Trade Secrets"). The loss of Employee during the term of this
Agreement, or the aid or assistance to any competitor of Employer by Employee or
direct competition of Employee respecting Employer's Business within the Market
Area would materially and irreparably injure Employer.
1.4 Employer desires to hire Employee, and Employee desires to accept
such employment, on the terms and conditions hereinafter set forth.
II. AGREEMENTS
2.1 Employment. Employer hereby employs Employee, and Employee hereby
accepts such employment from Employer, on the terms and conditions set forth in
this Agreement.
2.2 Term. Subject to the provisions for termination and extension as
hereinafter provided, the term of this Agreement shall commence on March 31,
1998, and shall continue until March 31, 2001.
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2.3 Automatic Renewal. Upon expiration of the term, unless either party
delivers written notice to the other ninety (90) days prior to the expiration of
the term, or any extension period, if applicable, this Agreement shall
automatically renew for successive one (1) year periods upon the same terms and
conditions set forth herein, except that Employee's salary shall be reviewed by
the Board of Directors of Employer prior to each such renewal period.
2.4 Duties and Positions with Employer. During the term of this
Agreement, it is intended that you will serve as President of Employer, and in
such other additional positions as the Board may from time to time determine.
You will faithfully and diligently perform all duties commensurate with such
positions, including those duties directed by the Board of Directors of
Employer, as well as those set forth in the Bylaws of Employer which relate to
such positions.
2.5 Service as Director. If the Employee is elected or appointed as a
Director of Employer during all or any portion of the term of this Agreement,
the Employee shall serve in such capacity without additional compensation.
2.6 Compensation. Employee will receive the following compensation for
her services during her term of employment:
(a) A minimum base salary of $125,000 per year, which, after
withholding and other required deductions, shall be paid in equal
installments in accordance with such salary payment policies as may be
established by Employer from time to time;
(b) Participate in any incentive compensation plan, pension or
profit-sharing plan, stock purchase plan, group benefit plan, medical
plan, bonus plan and/or other benefit plans, either currently in effect
or as may be established from time to time by the Board of Directors of
Employer, for which Employee, as an officer of Employer, may be
eligible to participate; and
(c) Receive such other compensation as may from time to time
be granted to Employee by the Board of Directors of Employer, including
any bonuses if recommended by the Compensation Committee of the Board
of Directors and approved by the Board of Directors.
2.7 Fringe Benefits. In addition to all other compensation provided
herein, the Employee shall be entitled to receive or participate in such
additional fringe benefits as the Board of Directors of Employer may from time
to time establish for its salaried personnel, including pension or profit
sharing plan contributions, life, health, medical or disability insurance
coverage, vacation and sick leave benefits.
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2.8 Termination.
(a) Death. In the event of the Employee's death during the
term of this Agreement, this Agreement shall thereupon terminate and
Employer shall pay to the Employee's beneficiary or estate, as that
term is hereinafter defined, the pro rata portion of the Employee's
salary which was earned but unpaid at the date of the Employee's death.
In addition, Employer shall pay to the Employee's beneficiary or estate
a death benefit in an amount to be determined by the Employer's Board
of Directors; provided, however, that such amount shall not exceed an
amount to be determined from time to time by the Board of Directors of
the Employer.
As used herein, the term "beneficiary or estate" means the
person or persons designated by the Employee in the last written notice
delivered to the Employer during her lifetime, or in the absence of
such written notice, such person or persons designated by the Employee
in her last will and testament specifically to receive Employee's
benefits under the terms of this Agreement, or, in the absence of both
written notice and such a designation, the Employee's estate. In the
event that the Employee should during her lifetime designate a person
or persons other than her husband as beneficiary or beneficiaries in
such written notice, such notice to be valid must contain the signed
consent of the Employee's spouse.
(b) Permanent Disability. In the event the Employee should
become permanently disabled during the term of this Agreement, then
this Agreement shall terminate. For the purposes hereof, "permanent
disability" shall mean that disability resulting from injury, disease
or other cause, whether mental or physical, which incapacitates the
Employee from performing her normal duties as an employee, which
appears to be permanent in nature and contemplates the continuous,
necessary and substantially complete loss of all professional
activities.
(c) Partial Disability. If the Employee should become
partially disabled, Employee shall be entitled to her salary as
provided herein for a period of ninety (90) days following the
commencement of such disability. At the end of such ninety (90) day
period, if the Employee remains partially disabled, her salary shall be
reduced according to the amount of time Employee is able to devote to
the Employer's business.
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(d) Temporary Disability. In the event the Employee should
become disabled, and such disability is not partial, as defined above,
such disabled Employee shall be entitled to her salary for a period of
ninety (90) days. If such temporary disability continues longer than
such ninety (90) day period, then Employee shall be deemed to have
become permanently disabled for the purposes of this Agreement at the
end of said ninety (90) day period.
(e) Voluntary Withdrawal. The Employee may voluntarily
terminate her employment hereunder by giving at least sixty (60) days
prior written notice to the Board of Directors of the Employer of her
intention to withdraw. Such notice shall specify the end of a calendar
month as the termination date.
(f) Recision of Stock Purchase Agreement. In the event that
the Sellers exercise their rights to rescind under the Share Exchange
Agreement, this Agreement shall automatically terminate and all rights
and obligations of Employee, Employer and SuperShuttle hereunder,
including but not limited to the rights and obligations set forth in
Section 2.11 (but excluding Employee's right to be compensated through
the date of termination) shall automatically terminate and be of no
further effect.
2.9 Termination for Cause. This Agreement may be terminated for cause
in the event that (a) Employee refuses to follow a lawful order or a direction
of the Board of Directors of Employer, (b) in the course of Employee's duties
under this Agreement, Employee engages in willful misconduct, dishonesty or
reckless disregard of Employee's responsibilities; or (c) Employee is convicted
of a felony. Termination for cause will also include Employee's death,
disability rendering Employee unable to perform her duties hereunder, breach of
the terms of this Agreement by Employee or failure to perform her duties
hereunder to the reasonable satisfaction of Employer's Board of Directors. Upon
any termination under this Paragraph 2.9, Employee or Employee's estate, as the
case may be, will be entitled to receive only that compensation due Employee
through the date of termination.
2.10 Termination Other than for Cause. In the event that Employee is
terminated for any reason other than as set forth in Paragraph 2.9 above or is
terminated by Employee for "Good Reason" as defined below:
(a) Employee will receive a severance payment equal to one
times her base salary in effect immediately prior to her termination,
net of with-holding and other deductions required by law; and
(b) Employee will have the right at any time within ninety
(90) days of the date of termination to exercise all unexercised vested
options granted to Employee under Employer's 1998 Stock Option Plan.
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"Good Reason" shall mean the occurrence of any of the following: (i) a
material change in Employee's authority, duties or responsibilities which would
cause Employee's position with Employer (or SuperShuttle) to become of
materially less responsibility and importance, (ii) a material breach of this
Agreement by Employer which such breach is not cured within fifteen (15) days of
written notice to Employer or (iii) the Employer (or SuperShuttle) requires that
the Employee relocate outside of the Market Area or assigns duties to the
Employee which cannot reasonably be performed without relocating or spending
unreasonable periods of time outside of the Market Area. For purposes of this
Section 2.10, Market Area shall not include Orange County, Florida.
The payments provided for in Section 2.10(a) shall be made not later
than the fifth day following the termination date; provided, however, that if
the amount of such payment cannot be finally determined on or before such day,
the Company shall pay to Employee on such day an estimate, as determined in good
faith by the Company, of the minimum amount of such payments and shall pay the
remainder of such payments as soon as the amount thereof can be determined but
in no event later than the thirtieth day after the date of termination. In the
event that the amount of the estimated payments exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by the Company
to Employee payable on the fifth day after demand by the Company.
Notwithstanding the foregoing, the Company may elect to pay any amounts
hereunder in monthly installments for the one (1) year period in accordance with
the Company's normal pay days.
2.11 Covenant Not to Compete. Employee shall during the term or
extended term of this Agreement, and for a period of three (3) years thereafter,
exercise her best good faith efforts to pursue and protect the Trade Secrets
from disclosure or access to, or use by, any competitor or potential competitor
of Employer and its affiliates. Employee shall not during the term or extended
term of this Agreement, and for a period of three (3) years thereafter, (a)
induce or encourage any other employee of Employer or its affiliates to become
employed by or to provide any Trade Secrets to any competitor or potential
competitor of Employer or its affiliates; (b) during the term or extended term
of this Agreement, and or a period of three (3) years thereafter, own, directly
or indirectly, manage, serve as an officer, director or partner of, or otherwise
(whether actively or by passive investment) become associated with any person or
entity engaged in a business in competition with Employer's Business in the
Market Area. In addition, until the expiration of five (5) years following the
consummation of the Exchange transactions the Employee shall not enter into any
agreement with a party currently doing business with Employer, SuperShuttle or
any affiliate of either of them for the provisions of services substantially
similar to those provided currently. The foregoing covenants by Employee shall
be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of the Employee
against the Employer whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Employer of said covenants.
If any of the covenants of Employee set forth in this paragraph shall be deemed
too broad to be
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enforceable by judicial process, then such covenants shall be reduced to such
levels as shall be so enforceable and shall be enforced as reduced.
2.12 Representations and Warranties. The Employee hereby represents and
warrants that the execution of this Agreement and the discharge of her
obligations hereunder will not breach or conflict with any other contracts,
agreements, covenants or understandings, either oral or written, between the
Employee and any other party or parties.
2.13 Assignment. This Agreement and the rights, interests and benefits
shall not be assigned, transferred, pledged or hypothecated in any way and shall
not be subject to execution, attachment or similar process except that Employer
may assign this Agreement to SuperShuttle upon consummation of an Initial Public
Offering of SuperShuttle Common Stock. Any attempt to assign, transfer, pledge
or hypothecate or make any other disposition of this Agreement or of such
rights, interests and benefits contrary to the foregoing provision or the levy
of any attachment or similar process thereupon, shall be null and void and
without effect and shall relieve the Employer and Employee of any and all
liability hereunder.
2.14 Attorneys' Fees. In the event either party hereto institutes an
action or other proceeding to enforce any rights arising under this Agreement,
the party prevailing in such action or other proceeding shall be paid all
reasonable costs and attorneys' fees by the other party, such fees to be set by
court and not by the jury.
2.15 Notices. Any notice or communication to be given under the terms
of this Agreement ("Notice") shall be in writing and delivered in person or
deposited, certified or registered, in the United States mail, postage prepaid,
addressed as follows:
If to Employer: AAA Wheelchair Wagon Services, Inc.
c/o SuperShuttle International, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: R. Xxxxx Xxxx, President
and Chief Executive Officer
If to Employee: Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
or at such other address as either party may from time to time designate by
Notice hereunder. Notices shall be effective upon delivery in person, or if
mailed at midnight on the third business day after the date of mailing.
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2.16 Modifications and Amendments. This Agreement shall not be altered
or amended except by a written agreement signed by the parties hereto.
2.17 Entire Agreement. This Agreement constitutes and embodies the full
and complete understanding and agreement of the parties hereto and supersedes
all prior understandings or agreements whether oral or in writing.
2.18 Benefit and Binding Effect. Except as herein otherwise expressly
provided, this Agreement shall be binding upon and inure to the benefit of the
Employer and its successors and assigns, including any corporation, person or
other entity which may acquire all or substantially all of the assets of the
business of Employer or any other corporation with or into which Employer is
consolidated or merged, and the Employee and her heirs, executors,
administrators and legal representatives; provided, however, that the
obligations of Employee hereunder may not be delegated or assigned.
2.19 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without regard to the
conflict of laws principals thereof.
2.20 Headings; Interpretation; Gender. The paragraph headings used
herein are for convenience and reference only and are not intended to define,
limit or describe the scope or intent of any provision of this Agreement. When
used in this Agreement, the term "including" shall mean without limitation by
reason of enumeration. Words used herein in the singular shall include the
plural and words used herein in the masculine gender shall include the feminine
in all cases where such would apply.
2.21 Waiver. The failure of either party to insist, in any one or more
instances, upon strict performance of any of the terms or conditions of this
Agreement shall not be construed as a waiver or a relinquishment of any right
granted hereunder or of the future performance of any such term, covenant or
condition, but the obligations of either party with respect thereto shall
continue in full force and effect.
2.22 Severability. In the event that any portion of this Agreement may
be held to be invalid or unenforceable for any reason whatsoever, it is agreed
that said invalidity or unenforceability shall not affect the other portions of
this Agreement and that the remaining covenants, terms and conditions, or
portions thereof, shall remain in full force and effect, and any court of
competent jurisdiction may so modify the objectionable provisions as to make it
valid, reasonable and enforceable.
2.23 Entire Agreement. This Agreement constitutes and embodies the full
and complete agreement and understandings of the parties with respect to the
Employee's employment with Employer and supersedes any and all other agreements,
either oral or written, between the parties hereto with respect to the subject
matter hereof.
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2.24 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed a duplicate original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 31st day of March, 1998.
AAA WHEELCHAIR WAGON SERVICE, INC.
BY /s/ Xxxxx Xxxxxx
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Its
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EMPLOYER
LIMOUSINES OF SOUTH FLORIDA, INC.
BY /s/ Xxxxx Xxxxxx
-------------------------------------
Its
---------------------------------
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
EMPLOYEE
