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b) TYPE>EX 10.35
RESIGNATION OF EMPLOYMENT AGREEMENT
This Resignation of Employment Agreement (this "Agreement") is entered
into as of October 26, 1999, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive") and
GLOBAL VACATION GROUP, INC., a New York corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Company, ▇▇▇▇▇▇ Equity Investors III, L.P. ("▇▇▇▇▇▇") and
Executive are parties to a Senior Management Agreement, dated March 30, 1999,
as amended (the "Management Agreement");
WHEREAS, the Executive currently serves as President and Chief
Operating Officer of the Company; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the terms and conditions by which the Executive's
employment with the Company will cease as of October 31, 1999 (the "Resignation
Date").
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
ARTICLE I
TERMS AND CONDITIONS OF RESIGNATION
1.1 RESIGNATION OF EXECUTIVE. The Company and the Executive hereby
agree that the employment of Executive as President of the Company shall cease
as of the Resignation Date and that Executive shall be deemed to have resigned.
The Executive also resigns, effective as of the Resignation Date, from all
positions, including directorships, which Executive may have in the Company and
its Subsidiaries, including without limitation, Friendly Holidays, Inc., Island
Resort Tours, Inc., International Travel & Resorts, Inc., Classic Custom
Vacations, Haddon Holidays, Inc., Globetrotter Vacations, Inc., GVG Finance
Company and Globetrotters, Inc. By execution of this Agreement, the Executive
hereby acknowledges that he has resigned without Good Reason effective as of
the Resignation Date.
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1.2 SEVERANCE PAY FOR EXECUTIVE. Except as otherwise provided below,
the parties hereby agree that Executive shall be owed severance payments (the
"Severance Payments") equal to an aggregate of Two Hundred Thousand Dollars
($200,000). Except as otherwise provided below, the Severance Payments shall be
payable as salary continuation in equal bi-weekly installments from the Company
commencing as of the Resignation Date and continuing for a period of 12 months
ending on October 31, 2000 (the "Severance Period"). The Company will provide
during the Severance Period health, life, accident, and disability insurance
benefits for Executive on the same basis and with the same coverage as for
other senior executives of the Company (e.g., ▇▇▇▇▇ ▇▇▇▇▇▇), or any successor
to the Company, and shall deem the termination of Executive's health insurance
coverage for purposes of COBRA and HIPPA as of the date said insurance coverage
terminates hereunder. Executive shall also be entitled to retain his Company
automobile until October 31, 2000 (collectively, the Severance Payments and the
other benefits provided hereunder are referred to as the "Severance Benefits").
Notwithstanding the foregoing, (i) all Severance Benefits shall cease
immediately after the later to occur of (x) May 1, 2000 or (y) the date
Executive becomes employed on a full-time basis by another business or
enterprise, and (ii) the Severance Payments shall be reduced, on a
dollar-for-dollar basis, by the amount of all (A) accrued but unpaid interest
on the ▇▇▇▇▇ Note (as defined below) and (B) consulting or other payments
received by Executive for services or work performed between May 1, 2000 and
October 31, 2000. Any such reduction in Severance Payments required by clause
(ii) of the preceding sentence shall be applied first against the next
Severance Payment then due to Executive and then against each succeeding
Severance Payment thereafter until such reduction has been satisfied in full.
Executive shall give prompt written notice of his employment or engagement by
any company or other entity at any time during the period from May 1, 2000
through October 31, 2000.
1.3 OPTIONS. All non-vested stock options (potentially exercisable for
301,517 shares) held by Executive with respect to the common stock of the
Company shall terminate effective as of the Resignation Date. All vested stock
options (exercisable for 92,172 shares at an option exercise price of $14) held
by Executive with respect to the common stock of the Company shall remain in
full force and effect after the Resignation Date and will terminate, if
unexercised, at 5:00 p.m. (EST) on October 31, 2000.
1.4 STATUS OF MANAGEMENT AGREEMENT. The Management Agreement is hereby
terminated and of no further force or effect. Except for Executive's rights as
a shareholder of the Company, all obligations between Executive and the Company
as well as any benefits to ▇▇▇▇▇▇ are hereby governed by this Agreement.
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1.5 MUTUAL RELEASE.
(a) Except in connection with the obligations of the
parties under this Agreement, for which no release is granted until such
obligations are satisfied in full according to the terms hereof, and except for
any actions or omissions which constitute willful and wanton misconduct or
fraud and for which the Company has filed a civil action no later than July 31,
2000, Executive on the one hand and the Company on the other hand, hereby
remise, release and forever discharge the other and their successors, assigns
and affiliates from any and all manner of action and actions, cause and causes
of action, suits, debts, dues, sums of money, accounts, reckoning, contracts,
controversies, agreements, liabilities, promises, damages, judgments, claims or
demands of whatsoever kind or nature, in law or in equity which either the
Executive on the one hand and the Company on the other hand, may have against
the other from the beginning of time to the date hereof.
(b) These releases shall include, subject to the
limitations set forth in (a) above, by way of example and not limitation, all
claims, actions, causes of action, liabilities, demands, rights, damages,
costs, attorneys' fees, expenses and controversies of every kind which arise
out of, relate, or are based on (i) Executive's employment with the Company and
its Subsidiaries or the resignation thereof, (ii) statements, acts or omissions
by Company and its agents (whether actual or apparent), employees or
representatives whether in their individual or representative capacities, (iii)
express or implied agreements between the parties, and (iv) the Civil Rights
Act of 1866, 1964, and 1991, the Employee's Income Retirement Security Act of
1974, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Rehabilitation Act of 1973, and all other state and federal
statutes.
1.6 WARRANTIES.
(a) EXECUTIVE WARRANTIES. Executive warrants and represents as
follows:
(i) He has read this Agreement, and agrees to the
conditions and obligations set forth in it;
(ii) He has had a reasonable time to consider the terms
of this Agreement after being advised by Company to seek legal
counsel;
(iii) He has had twenty-one (21) days in which to
consider the Agreement, and, if he executes this Agreement less
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than twenty-one (21) days from receipt, it is with the understanding
that he had the full twenty-one (21) days available if he so desired;
(iv) He may revoke this Agreement for seven (7) days
following his execution hereof, and this Agreement shall not become
enforceable and effective until seven (7) days after such execution;
(v) He has not assigned any of his rights or interests
under this Agreement, the Management Agreement, or any other agreement
or arrangement between him and the Company;
(vi) He voluntarily executes this Agreement after having
had full opportunity to consult with legal counsel and without being
pressured or influenced by any statement or representation of any
person acting on behalf of Company including the officers, agents and
attorneys for Company; and
(vii) He has full and complete legal capacity to enter
into this Agreement.
b) COMPANY WARRANTIES.
(i) The execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporation action
of the Company, and this Agreement has been duly and validly executed
and delivered by the Company and it constitutes the valid and binding
obligation of the Company, enforceable in accordance with its terms;
and
(ii) The Company has not assigned any of its rights or
interests under this Agreement, the Management Agreement or any other
agreement or arrangement between the Company and the Executive.
1.7 REPURCHASE OF STOCK.
(a) In consideration for the cancellation by the Company
of that certain promissory note dated April 24, 1999 in the aggregate principal
amount of Two Hundred Seventy Thousand Dollars ($270,000) (the "▇▇▇▇▇ Note"),
the Executive agrees to sell, transfer and assign to the Company and the
Company agrees to purchase and acquire from the Executive, Seventy-Four
Thousand and Five Hundred Fifty-Four (74,554) shares of the Company's Common
Stock sold to and owned by the Executive pursuant to the Management Agreement
(the "Repurchased Shares"). On the Resignation Date,
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the Company shall deliver the cancelled ▇▇▇▇▇ Note to the Executive in exchange
for all of the Repurchased Shares.
(b) Executive represents and warrants that:
(i) He has full right, power and authority to enter into perform
this Agreement and to sell, transfer and assign the Repurchased Shares
contemplated above;
(ii) He is the sole beneficial owner of the RepShares to be sold
by him to the Company as contemplated above, free and clear of all liens,
claims and encumbrances; and
(iii) His execution, delivery and perof this Agreement will not
violate any agreement binding on him.
1.8 RETAINED COMPANY SHARES. Upon completion of the purchase by the
Company of the Repurchased Shares, Executive will continue to be the owner of
Forty-Nine Thousand Two Hundred Forty-Three (49,243) shares of the Company's
Common Stock (hereinafter referred to as the "Retained Shares") which shares
were sold to Executive pursuant to the Management Agreement. Subject to
compliance with applicable securities laws, all of the Retained Shares are
fully transferable by Executive at any time.
1.9 POST-EMPLOYMENT RELATIONSHIP. Following the Resignation Date,
Executive agrees that, at the request of the Company's Chief Executive Officer
or the Board, he will provide advice and consultation to the Company at
mutually agreeable times with respect to matters listed on Exhibit A hereto and
on other matters mutually approved by the Executive and the Company. In
addition, nothing contained herein, including but not limited to paragraphs
1.11 and 1.12, shall prohibit Executive from acting as a consultant or making
business proposals to ▇▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇▇ on any matters during
the Noncompete Period, or from attempting to structure business transactions
involving the sale or purchase of any assets or services of the Company or its
Subsidiaries, provided Executive has obtained a confidentiality agreement (on a
Company approved form) from any third party with which he discusses such
business transactions and approval from a senior executive of the Company to
approach said third party, which will not be unreasonably withheld.
1.10 NON-DISPARAGEMENT. Subsequent to the date hereof, the parties
hereto agree not to intentionally make to any customer, supplier, employee or
business relation or affiliate of the Company, ▇▇▇▇▇▇, or the general public
any statement that materially disparages the other or, where applicable,
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their respective subsidiaries and affiliates (including their respective
officers, directors, shareholders and employees).
1.11 CONFIDENTIAL INFORMATION AND GOODWILL; INVENTIONS. Executive
acknowledges and agrees that:
(a) As a necessary function of Executive's employment
with the Company, Executive had access to and utilized Confidential Information
which constitutes a valuable and essential asset of the Company's business.
(b) The Confidential Information, observations and data
obtained by Executive during the course of his employment concerning the
business and affairs of the Company are the property of the Company, including
information concerning the acquisition opportunities in or reasonably related
to the Business of which Executive became aware during his employment by the
Company. Therefore, Executive agrees that he will not disclose to any
unauthorized Person or use for his own account any of the Confidential
Information without the Board's written consent. Within ten (10) days following
the date of this Agreement, Executive agrees to deliver to the Company all
memoranda, notes, plans, records, reports and other documents (including copies
thereof) relating to the Business or any other Confidential Information which
are in the possession or control of Executive.
(c) Executive acknowledges that all inventions,
innovations, developments, improvements, methods, designs, analyses, drawings,
software, reports and all similar or related information (whether or not
patented or patentable) developed by Executive during his employment by the
Company which (i) directly or indirectly relate to the Company or its
Affiliates or the Business, or (ii) resulted from any work performed by
Executive while employed by the Company or its Affiliates belongs to the
Company and its Affiliates and Executive represents and warrants that, except
to the extent previously transmitted to the Company, no such inventions,
innovations, developments, improvements, methods, designs, analyses, drawings,
software, reports and all similar or related information (whether or not
patented or patentable) exist.
1.12 NONCOMPETITION AND NONSOLICITATION.
(a) Executive acknowledges that in the course of his
employment with the Company he has become familiar with the Company's and its
Affiliates' trade secrets and with other Confidential Information concerning
the Company and that his services were of special, unique and extraordinary
value to the Company and its Affiliates. Therefore, Executive agrees that,
until October 31, 2000 (the "Noncompete Period"), and the timely satisfaction
by the Company of all obligations to the Executive as provided under this
Agreement he shall not, without the Company's prior consent, engage in
Competitive Activity by directly owning, managing, controlling, participating
in, consulting with, or
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engaging in any business competing with the Business of the Company and its
Subsidiaries or any businesses as to which Executive has knowledge that the
Company or its Subsidiaries have firm plans to engage in.
(b) During the Noncompete Period and for a period of twelve (12)
months thereafter, Executive shall not directly or indirectly through another
entity (i) induce or attempt to induce any employee of the Company or any
Subsidiary to leave the employ of the Company or such Subsidiary, or in any way
interfere with the relationship between the Company or any Subsidiary and any
employee thereof or (ii) induce or attempt to induce any customer, supplier,
vendor, licensee or other business relation of the Company or any Subsidiary to
cease doing business with the Company or such Subsidiary or to modify its
business relationship with the Company in a manner adverse to the Company or
any Subsidiary, or in any way disparage the Company or its Subsidiaries to any
such customer, supplier, vendor, licensee or business relation of the Company
or any Subsidiary.
(c) If, at the time of enforcement of Section 1.11 or 1.12 of
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed to revise the restrictions contained herein to
cover the maximum duration, scope and area permitted by law. Because
Executive's services are unique and because Executive has access to
Confidential Information, the parties hereto agree that money damages would be
an inadequate remedy for any breach of this Agreement. Therefore, in the event
a breach or threatened breach of this Agreement, the Company or its successors
or assigns may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce, or prevent any
violations of, the provisions hereof.
1.13 DEFINITIONS.
(a) "Affiliate" of any Person means any other Person
that directly or indirectly controls, is controlled by or is under common
control with such Person.
(b) "Board" means the Company's board of directors or
the board of directors or similar management body of any successor of the
Company.
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(c) "Business" means providing and distributing
wholesale travel and vacation packages.
(d) "Competitive Activity" means any business or
activity of Executive or any third party that is the same as the Business or
competitive with the Business.
(e) "Confidential Information" means all confidential
information and trade secrets of the Company and its Affiliates including,
without limitation, the following: the identity, written lists, or descriptions
of any customers, referral sources or Organizations; financial statements, cost
reports, or other financial information; contract proposals or bidding
information; business plans; training and operations methods and manuals;
personnel records; fee structures; and management systems, policies or
procedures, including related forms and manuals. "Confidential Information"
shall not include any information or knowledge which: (a) is in the public
domain other than by Executive's breach of this Agreement or (b) is disclosed
to Executive lawfully by a third party who is not under any obligation of
confidentiality.
(f) "Management Agreement" has the meaning set forth in
the first WHEREAS clause set forth above.
(g) "Organization" means any organization that has
contracted with the Company for the performance of services in connection with
the Business.
(h) "Person" means an individual, a partnership, a
limited liability company, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization or a
governmental entity or any department, agency or political subdivision thereof.
(i) "Resignation Date" has the meaning set forth in the
third WHEREAS clause set forth above.
(j) "Subsidiary" means any corporation of which the
Company owns securities having a majority of the ordinary voting power in
electing the board of directors directly or through one or more subsidiaries.
ARTICLE II
GENERAL PROVISIONS
2.1 NOTICES. Any notice provided for in this Agreement must be in
writing and must be delivered to the recipient at the address below indicated:
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To the Company:
c/o Global Vacation Group, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
With Copies to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To the Executive:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
With Copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., P.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given five (5) business
days after mailing by first class mail, certified return receipt requested, one
business day after delivery to a receipted courier for next business day
delivery, or upon confirmed transmission by telex or facsimile.
2.2 SEVERABILITY. Except as provided in section 1.12(c), whenever
possible, each provision of this Agreement will be interpreted in such
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manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not effect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
2.3 ARBITRATION. Except for the remedies of the Company provided
in Section 1.12, to which the terms of this section do not apply, the parties
hereto agree to submit any disputes arising out of or relating to this
Agreement to binding arbitration in Washington, DC, administered by the
American Arbitration Association under its Commercial Arbitration Rules, before
one arbitrator, and judgment on the award rendered by the arbitrator may be
entered into any court having jurisdiction thereof. The prevailing party in any
arbitration shall be entitled to recover its reasonable attorneys' fees and
costs from the other party or parties.
2.4 COMPLETE AGREEMENT. This Agreement and those documents
expressly referred to herein embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
2.5 COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may be
executed on separate counterparts, each of which is deemed to be an original
and all of which taken together constitute one and the same Agreement. This
Agreement may be executed and delivered by facsimile transmission.
2.6 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive and the Company and
their respective successors and assigns; provided, however, that this Agreement
is fully-assignable by the Company but the rights, duties and obligations of
the Executive under this Agreement shall not be assignable by the Executive
without the Company's express prior written consent.
2.7 CHOICE OF LAW. This Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of New York.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
EXECUTIVE:
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▇▇▇▇▇▇▇ ▇▇▇▇▇
GLOBAL VACATION GROUP, INC.
BY:
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Name:
Title:
▇▇▇▇▇▇ EQUITY INVESTORS III, L.P.
By: TC Equity Partners, LLC
Its: General Partner
By:
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Name:
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