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Exhibit 10.9
EMPLOYMENT AGREEMENT
BY THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into
this 31st day of March 1998, SuperShuttle International, Inc., a Delaware
corporation ("Employer") and Xxxx Xxxxx ("Employee"), state, confirm and agree
as follows:
I. RECITALS
1.1 Employer is engaged in the business of providing transportation,
over land, to passengers for hire, including, by way of example, transportation
to and from airports, ports or stations of embarkation for travel, but excluding
the operation of taxis ("Employer's Business"). For purposes of this Agreement,
Employer's Business is that which is conducted in the counties set forth on
Exhibit "A" hereto (the "Market Area").
1.2 Employer has acquired substantially all of the assets of Tamarack
Transportation, Inc. ("Tamarack"), pursuant to an Amended and Restated Agreement
and Plan of Merger, dated as of March 31, 1998, by and among Employer, Tamarack
and the stockholders of Tamarack.
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 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.
2.3 Duties and Positions with Employer. During the term of this
Agreement, it is intended that Employee will serve as President of Employer's
subsidiary, Tamarack, and in such other additional positions as the Board may
from time to time determine. Employee 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.
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2.4 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.
2.5 Compensation. Employee will receive the following compensation for
his services during his 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) An incentive bonus tied to the pre-tax earnings of
Tamarack or its successor organization;
(c) Participation in any 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
(d) Such other compensation or allowances 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.
2.6 Fringe Benefits. In addition to all other compensation provided
herein, the Employee shall be reimbursed for all out of pocket expenses related
to the performance of his duties hereunder in accordance with Employer's
reimbursement policies and 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.
2.7 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.
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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 his lifetime, or in the absence of
such written notice, such person or persons designated by the Employee
in his 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 his lifetime designate a person
or persons other than his spouse 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 his 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 his 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, his salary shall be
reduced according to the amount of time Employee is able to devote to
the Employer's business.
(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 his 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 his employment hereunder by giving at least sixty (60) days
prior written notice to the Board of Directors of the Employer of his
intention to withdraw. Such notice shall specify the end of a calendar
month as the termination date.
(f) Dismissal. Employer may terminate Employee's employment
under this Agreement at any time with or without cause (defined below)
by giving at least thirty (30) days written notice to the Employee at
his address as listed on the Employer's records specifying the
effective date of termination (the
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"Termination Date"). In the event of dismissal, payments for
compensation and charges for expenses shall be prorated to the date of
termination.
2.8 Termination for Cause. This Agreement may be terminated for cause
in the event that (a) Employee refuses to follow a reasonable and lawful order
or direction, consistent with Employee's duties hereunder, of the Chief
Executive Officer of Employer or 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 disability rendering Employee unable to perform his duties hereunder
for a period of ninety (90) consecutive days. Upon any termination under this
Paragraph 2.8, 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.
2.9 Termination Other than for Cause. In the event that Employee is
terminated for any reason other than as set forth in Paragraph 2.8 above or
Employee's death:
(a) Employee will receive a severance payment equal to one
times his annual base salary in effect immediately prior to his
termination and the continuation of health care benefits for the one
(1) year period following the effective date of termination of
employment or until Employee obtains new employment, 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.
The payments provided for in Section 2.9(a) shall be
made not later than the fifth day following the termination date.
Notwithstanding the foregoing, Employer may elect to pay any amounts hereunder
in monthly installments for the one (1) year period in accordance with
Employer's normal pay days.
2.10 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 his 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 subsidiaries. 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 subsidiaries to become
employed by or to provide any Trade Secrets to any competitor or potential
competitor of Employer or its subsidiaries; (b) during the term or extended term
of this Agreement, and for 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.
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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 enforceable
by judicial process, then such covenants shall be reduced to such levels as
shall be so enforceable and shall be enforced as reduced.
2.11 Representations and Warranties. The Employee hereby represents and
warrants that the execution of this Agreement and the discharge of his
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.
2.12 Assignment. This Agreement and the associated 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. 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.
2.13 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.
2.14 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: SuperShuttle International, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: R. Xxxxx Xxxx, President
and Chief Executive Officer
If to Employee: Xxxx Xxxxx
Tamarack Transportation, Inc.
000 Xxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
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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 three
business days after the date of mailing.
2.15 Modifications and Amendments. This Agreement shall not be altered
or amended except by a written agreement signed by the parties hereto.
2.16 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.
2.17 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 his heirs, executors,
administrators and legal representatives; provided, however, that the
obligations of Employee hereunder may not be delegated or assigned.
2.18 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to the
conflict of laws principles thereof.
2.19 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.
2.20 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.
2.21 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.
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2.22 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.
2.23 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
this 31st day of March, 1998.
SUPERSHUTTLE INTERNATIONAL, INC.
BY /s/ Xxx XxXxx
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Xxx XxXxx
Its
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EMPLOYER
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
EMPLOYEE
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EXHIBIT "A"
Orange County
Los Angeles County
Riverside County
San Diego County
Any County Contiguous to the Above Named Counties
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