Exhibit 10.9 Employment Agreement
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into and made
effective as of January 16, 1998, by and among TravelMax International, Inc.
("Employer" or "TMI"), a California corporation, and Xxxxx Xxxxxxxx
("Employee").
RECITALS
WHEREAS, Employer, Employee and certain other parties entered into
that certain Asset Purchase Agreement (the "Asset Purchase Agreement") dated
January 5, 1998, with respect to the acquisition of certain assets related to
the business of establishing independent travel agents in their home-based
travel businesses (the "Business");
WHEREAS, pursuant to the Asset Purchase Agreement, Employee has
agreed to enter into an employment agreement with Employer;
WHEREAS, Employer is desirous of hiring Employee as one of its key
employees;
WHEREAS, Employee is willing to accept employment as an employee of
Employer; and
WHEREAS, the parties hereto desire to set forth herein the
responsibilities of Employee and the expectations of Employer;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and obligations herein contained, the parties hereto agree
as follows:
AGREEMENT
1. EMPLOYMENT. Employer hereby employs Employee, and Employee
hereby accepts employment with Employer, upon the terms and conditions set
forth in this Agreement.
2. TERM OF EMPLOYMENT. The employment of Employee pursuant to the
terms of this Agreement shall commence as of January 16, 1998, and shall
continue for a period of two (2) years, unless sooner terminated pursuant to
the provisions hereof.
3. DUTIES.
3.1. BASIC DUTIES. Subject to the direction and control of the
Board of Directors of Employer, Employee shall serve as a Senior
Vice-President and shall fulfill all duties and obligations of such office.
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3.2. OTHER DUTIES OF EMPLOYEE. In addition to the foregoing,
Employee shall perform such other or different duties related to those set
forth in Paragraph 3.1 as may be assigned to him from time to time by
Employer; PROVIDED, HOWEVER, that any such additional assignment shall be at
a level of responsibility commensurate with that set forth in Paragraph 3.1
and PROVIDED, FURTHER, that Employee may serve, or continue to serve, on the
boards of directors of, and hold any other offices or positions in, companies
or entities that in the sole and absolute judgment of Employer will not
present any conflict of interest with Employer or any of its operations or
adversely affect the performance of Employee's duties pursuant to this
Agreement.
3.3. PLACE OF PERFORMANCE OF DUTIES. The services of Employee
shall be performed at Employer's place of business and at such other
locations as shall be designated from time to time by Employer.
4. COMPENSATION AND METHOD OF PAYMENT.
4.1 TOTAL COMPENSATION. As compensation under this Agreement,
Employer shall pay and Employee shall accept the following:
(1) For each year of this Agreement, measured from the effective date
hereof, base compensation of one hundred thousand dollars ($100,000)
per year, with such upward adjustments as may be approved from time to
time by the Board of Directors of Employer. Such adjustments may be
based on the performance of Employer, the value of Employee to
Employer or any other factors considered relevant by Employer.
(2) Reimbursement of such discretionary expenses as are reasonable and
necessary, in the judgment of the Board of Directors, for Employee's
performance of his responsibilities under this Agreement. Such
reimbursement of expenses shall include the reasonable, in the
judgment of both Employer and Employee, expenses of moving Employee
and his family to Florida in connection with his work as an Employee.
(3) Participation in Employer's employee fringe benefit programs in
effect from time to time for employees at comparable levels of
responsibility. Participation will be in accordance with any
applicable policies adopted by Employer. Employee shall be entitled
to vacations, absences for illness, and to similar benefits of
employment, and shall be subject to such policies and procedures as
may be adopted by Employer.
(4) A number of shares of the Common Stock (the "TMI Stock) of
TravelMax International Inc., a Utah corporation which owns 100% of
the issued and outstanding shares of common stock of Employer, equal
in value to $50,000, as measured on the basis of the average mean
between the daily closing bid and asked prices in the over-the-counter
market of the TMI Stock for each day in the five business day period
ending on January 15, 1998.
4.2 PAYMENT OF COMPENSATION. Employer shall pay the compensation
provided for in Section 4.1 hereof as follows:
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(1) Employer shall pay the base compensation in cash semi-monthly in
twenty-four equal installments or in accordance with Employer's
payroll practices for all its employees, but in no event less
frequently than monthly.
(2) Employer shall pay in cash the reimbursement of such discretionary
expenses provided in Section 4.1(2) hereof.
(3) Employer shall deliver the TMI Common Stock upon the execution of
this Agreement by Employer and Employee.
5. TERMINATION OF AGREEMENT.
5.1. BY NOTICE. This Agreement, and the employment of Employee
hereunder, may be terminated by Employee or Employer upon ninety (90) days'
written notice of termination.
5.2. OTHER TERMINATION. This Agreement, and the employment of
Employee hereunder, shall terminate immediately upon the occurrence of any
one of the following events:
(1) The death or mental or physical incapacity of Employee.
(2) The loss by Employee of legal capacity (other than as described
in Section 5.2(1) hereof).
(3) The failure by Employee to devote substantially all of his
available professional time to the business of Employer or the
wilful and habitual neglect of duties.
(4) The willful engaging by Employee in an act of dishonesty
constituting a felony under the laws of the state in which
Employer's principal place of business is located, resulting or
intending to result in gain or personal enrichment at the expense
of Employer or to the detriment of Employer's business and to
which Employee is not legally entitled.
(5) The continued incapacity in excess of sixty (60) days on the part
of Employee to perform his duties, unless waived by Employer.
(6) The mutual written agreement of Employee and Employer.
(7) The expiration of the term of this Agreement.
(8) Employee's breach of this Agreement.
5.3 TERMINATION WITHOUT CAUSE. If Employer terminates Employee
without any cause whatever and in breach of this Agreement, and Employee has
not breached this Agreement in any manner, then any unpaid compensation for
the remaining term of this Agreement shall be paid to Employee within ninety
days of such termination or at such time as may be agreed by Employer and
Employee.
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5.4. REMEDIES. No termination of the employment of Employee
pursuant to the terms of this Agreement shall prejudice any other remedy to
which any party to this Agreement may be entitled either at law, in equity,
or under this Agreement.
6. PROPERTY RIGHTS AND OBLIGATIONS OF EMPLOYEE.
6.1. TRADE SECRETS. For purposes of this Agreement, "trade
secrets" shall include without limitation any and all financial, cost and
pricing information and any and all information contained in any drawings,
designs, plans, proposals, customer lists, records of any kind, data,
formulas, specifications, concepts or ideas, where such information is
reasonably related to the business of Employer and has not previously been
publicly released by duly authorized representatives of Employer or Parent or
otherwise lawfully entered the public domain.
6.2. PRESERVATION OF TRADE SECRETS. Employee will preserve as
confidential all trade secrets pertaining to Employer's business that have
been or may be obtained or learned by him by reason of his employment or
otherwise. Employee will not, without the written consent of Employer, either
use for his own benefit or purposes or disclose or permit disclosure to any
third parties, either during the term of his employment hereunder or
thereafter (except as required in fulfilling the duties of his employment),
any trade secret connected with the business of Employer.
6.3. TRADE SECRETS OF OTHERS. Employee agrees that he will not
disclose to Employer or induce Employer to use any trade secrets belonging to
any third party.
6.4. PROPERTY OF EMPLOYER. Employee agrees that all documents,
reports, files, analyses, drawings, designs, tools, equipment, plans
(including, without limitation, marketing and sales plans), proposals,
customer lists, computer software or hardware, and similar materials that are
made by him or come into his possession by reason of his employment with
Employer are the property of Employer and shall not be used by him in any way
adverse to Employer's interests. Employee will not allow any such documents
or things, or any copies, reproductions or summaries thereof to be delivered
to or used by any third party without the specific consent of Employer.
Employee agrees to deliver to the Board of Directors of Employer or its
designee, upon demand, and in any event upon the termination of Employee's
employment, all of such documents and things which are in Employee's
possession or under his control.
6.5 NON-COMPETITION BY EMPLOYEE.
6.5.1 General. Employee agrees during the two years following the
termination of his Employment, not to actively recruit, engage in passive
hiring efforts, solicit or induce any person or entity who, during such
two-year period, or within one (1) year prior to the termination of
Employee's employment with Employer, was an employee, agent, representative
or sales person of Employer or any of its affiliates ("Employer Group") to
leave or cease his employment or other relationship with Employer Group for
any reason whatsoever or hire or engage the services of such person for
Employee in any business substantially similar to or competitive with that in
which Employer Group was engaged during the Employee's employment.
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6.5.2 Non-Solicitation of Customers. Employee acknowledges that in
the course of his employment, he will learn about Employer Group's business,
services, materials, programs and products and the manner in which they are
developed, marketed, served and provided. Employee knows and acknowledges
that Employer Group has invested considerable time and money in developing
its programs, agreements, offices, representatives, services, products and
marketing techniques and that they are unique and original. Employee further
acknowledges that Employer Group must keep secret all pertinent information
divulged to Employee about Employer Group business concepts, ideas, programs,
plans and processes, so as not to aid Employer Group's competitors.
Accordingly, Employer Group is entitled to the following protection, which
Employee agrees is reasonable:
Employee agrees that for a period of two (2) years following the
termination of his employment, he will not, on his own behalf or on behalf of
any person, firm, partnership, association, corporation, or other business
organization, entity or enterprise, knowingly solicit, call upon, or initiate
communication or contact with any person or entity or any representative of
any person or entity, with whom Employee had contact during his employment,
with a view to the sale or the providing of any product, equipment or service
sold or provided or under development by Employer Group during the period of
two (2) years immediately preceding the date of Employee's termination. The
restrictions set forth in this section shall apply only to persons or
entities with whom Employee had actual contact during the two (2) years prior
to termination of his employment with a view toward the sale or providing of
any product, equipment or service sold or provided or under development by
Employer Group.
6.5.3 Non-Competition. Employee acknowledges that he will be a
significant person in Employer Group's business who is in possession of
selective and specialized skills, learning abilities, customer contacts, and
customer information as a result of his relationship with Employer Group and
prior experience, and agrees that Employer Group has a substantial business
interest in the covenant described below. Employee, therefore, agrees for a
period of two (2) years from the termination of his employment, not to,
either directly, whether as an employee, sole proprietor, partner
shareholder, joint venture or the like, in the same or similar capacity in
which he worked for Employer Group, compete with Employer Group in business
activities substantially similar to those in which Employee was engaged on
behalf of Employer Group. The territory in which this non-competition
covenant shall apply will be limited to the area commensurate with the
territory in which Employee marketed, sold or provided products or services
for Employer Group during the two years preceding termination of Employment.
"Business activities," as described in this paragraph, shall, in
particular, include provision of any products or services which represent the
kind of product or services Employee was engaged in selling, providing,
servicing or working with for Employer Group as an employee of Employer Group.
6.6 SURVIVAL PROVISIONS AND CERTAIN REMEDIES. Unless otherwise
agreed to in writing between the parties hereto, the provisions of this
Section 6 shall survive the termination of this Agreement. The covenants in
this Section 6 shall be construed as separate covenants and to the extent any
covenant shall be judicially unenforceable, it shall not affect the
enforcement of any other covenant. In the event Employee breaches any of the
provisions of this Section 6, Employee agrees that Employer shall be entitled
to injunctive relief in addition to any other remedy to which Employer may be
entitled.
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6.7 SECURITIES WARRANTIES. With respect to the TMI Common Stock,
Employee hereby represents and warrants to TMI that:
(a) The TMI Common Stock which may be acquired for the account of
Employee and not with a view to sale in connection with any distribution of
the TMI Common Stock;
(b) Employee is acquiring the TMI Common Stock hereunder without having
received any form of general solicitation or general advertising;
(c) Employee or his representative, if any, has been provided with, or
given reasonable access to, full and fair disclosure of all material
information concerning TMI;
(d) Employee has a preexisting personal or business relationship with
TMI or certain of its officers, directors or controlling persons, or by
reason of his business or financial experience, Employee can reasonably be
assumed to have the capacity to represent his own interests in connection
with this Agreement;
(e) Employee understands and hereby acknowledges that the TMI Common
Stock will be issued pursuant to those restrictions imposed by and exemptions
available pursuant to applicable federal and state laws and that the
certificates to be issued in respect of the TMI Common Stock may bear a
legend in a form satisfactory to counsel for TMI; in part, TMI's reliance
upon such exemptions is based on the representations and warranties made by
Employee in this Section 6.7;
(f) Employee agrees that the certificates to be issued in respect of the
TMI Common Stock may bear a legend in a form satisfactory to counsel for TMI
reflecting the status of the TMI Common Stock as restricted securities under
Rule 144(a)(3) promulgated under the Securities Act and acknowledges that the
transfer agent or registrar for TMI may be instructed to restrict the
transfer of the TMI Common Stock, in accordance with such legend and any
other restrictions provided in this Agreement;
(g) Employee hereby agrees that: (i) he will not sell, transfer,
hypothecate, pledge, assign or otherwise dispose of any of the TMI Common
Stock, except pursuant to the terms of this Agreement; and (ii) to a
registration statement filed under the provisions of the Securities Act, a
favorable no-action or interpretive letter received from the Commission or an
opinion of counsel satisfactory to TMI that such sale, transfer,
hypothecation, pledge, assignment or other disposition is exempt from the
registration requirements of the Securities Act and in California, pursuant
to an opinion of counsel satisfactory to TMI that such sale, transfer,
hypothecation, pledge, assignment or other disposition is exempt from the
registration requirements of the Securities Act and does not in any way
violate the terms of this Agreement; and
(h) Employee hereby acknowledges that: (i) the shares of TMI Common Stock
referred to herein are being acquired after adequate investigation of the
business plan and prospects of TMI; (ii) Employee is not relying upon the
accuracy of any predictions as to the future prospects or developments of TMI or
its business and is well informed as to the business of TMI and has reviewed its
operations and financial statements; (iii) Employee or his professional advisors
has discussed the financial condition and business operations of TMI with the
officers and directors of TMI and has been afforded the opportunity to ask
questions with respect thereto; and (iv) Employee specifically acknowledges that
the shares of TMI Common Stock are speculative and
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involve a very high degree of risk and that there can be no assurance that
TMI will achieve its business objectives or, in particular, that it will ever
have cash available for distribution to its stockholders.
7. GENERAL PROVISIONS.
7.1. NOTICES. Any notices or other communications required or
permitted to be given hereunder shall be given sufficiently only if in
writing and served personally or sent by certified mail, postage prepaid and
return receipt requested, addressed as follows:
If to Employer: TravelMax International, Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx
Attn: Xxxxxx Xxxxx
tel: 000-000-0000
fax: 000-000-0000
If to Employee: Xxxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
However, either party may change his/its address for purposes of this
Agreement by giving written notice of such change to the other party in
accordance with this Paragraph 7.1. Notices delivered personally shall be
deemed effective as of the day delivered and notices delivered by mail shall
be deemed effective as of three days after mailing (excluding weekends and
federal holidays).
7.2. CHOICE OF LAW AND FORUM. Except as expressly provided
otherwise in this Agreement, this Agreement shall be governed by and
construed in accordance with the laws of the State of California. The
parties agree that any dispute arising under this Agreement, whether during
the term of this Agreement or at any subsequent time, shall be resolved
exclusively in the courts of the State of California and the parties hereby
submit to the jurisdiction of such courts for all purposes provided herein
and appoint the Secretary of State of the State of California as agent for
service of process for all purposes provided herein.
7.3. ENTIRE AGREEMENT; MODIFICATION AND WAIVER. This Agreement
supersedes any and all other agreements, whether oral or in writing, between the
parties hereto with respect to the employment of Employee by Employer and
contains all covenants and agreements between the parties relating to such
employment in any manner whatsoever. Each party to this Agreement acknowledges
that no representations, inducements, promises, or agreements, oral or written,
have been made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement shall be effective only if it is in writing signed by the party to be
charged. No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not
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similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
7.4. ASSIGNMENT. Because of the personal nature of the services
to be rendered hereunder, this Agreement may not be assigned in whole or in
part by Employee without the prior written consent of Employer. However,
subject to the foregoing limitation, this Agreement shall be binding on, and
shall inure to the benefit of, the parties hereto and their respective heirs,
legatees, executors, administrators, legal representatives, successors and
assigns.
7.5. SEVERABILITY. If for any reason whatsoever, any one or more
of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable, or invalid as applied to any particular case or
in all cases, such circumstances shall not have the effect of rendering any
such provision inoperative, unenforceable, or invalid in any other case or of
rendering any of the other provisions of this Agreement inoperative,
unenforceable or invalid.
7.6 CORPORATE AUTHORITY. Employer represents and warrants as of
the date hereof that Employer's execution and delivery of this Agreement to
Employee and the carrying out of the provisions hereof have been duly
authorized by Employer's Board of Directors and authorized by Employer's
shareholders and further represents and warrants that neither the execution
and delivery of this Agreement, nor the compliance with the terms and
provisions thereof by Employer will result in the breach of any state
regulation, administrative or court order, nor will such compliance conflict
with, or result in the breach of, any of the terms or conditions of
Employer's Articles of Incorporation or Bylaws, as amended, or any agreement
or other instrument to which Employer is a party, or by which Employer is or
may be bound, or constitute an event of default thereunder, or with the lapse
of time or the giving of notice or both constitute an event of default
thereunder.
7.7. ATTORNEYS' FEES. In any action at law or in equity to
enforce or construe any provisions or rights under this Agreement, the
unsuccessful party or parties to such litigation, as determined by the courts
pursuant to a final judgment or decree, shall pay the successful party or
parties all costs, expenses, and reasonable attorneys' fees incurred by such
successful party or parties (including, without limitation, such costs,
expenses, and fees on any appeals), and if such successful party or parties
shall recover judgment in any such action or proceedings, such costs,
expenses, and attorneys' fees shall be included as part of such judgment.
7.8. COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
7.9. HEADINGS AND CAPTIONS. Headings and captions are included
for purposes of convenience only and are not a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first written above at Newport Beach,
California.
"Employer"
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TRAVELMAX INTERNATIONAL, INC.
a California corporation
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Vice-President
"Employee"
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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