EXHIBIT 10.20
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AGREEMENT OF SEPARATION AND RELEASE
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THIS AGREEMENT entered into effective as of June 5, 2000 is by and
between MARK MASTRINI, ("Employee") and 800 TRAVEL SYSTEMS, INC., a Delaware
corporation (the "Company").
WHEREAS, Employee is currently employed as the Company's Chief
Executive Officer, pursuant to the terms of an Employment Agreement dated
September 1, 1997 ("Employment Agreement");
WHEREAS, the Company and Employee have mutually agreed that it is
desirable to end Employee's relationship with the Company on the terms and
conditions set forth in this Agreement;
WHEREAS, the Company and Employee shall enter into a separate
Consulting Agreement dated of even date herewith.
NOW, THEREFORE, Employee and the Company, intending to be legally bound
hereby and in consideration of the mutual promises contained herein, do hereby
agree as follows:
1. RESIGNATION. Employee and the Company mutually agree that Employee
will resign from his position as Chief Executive Officer, and from all other
positions he holds with the Company, effective June 5, 2000 (the "Termination
Date"). The Employment Agreement and all therein are hereby void and of no
further force or effect. Execution of this Agreement shall also constitute
Employee's resignation from his position as a member of the Company's Board of
Directors effective the date of this Agreement.
Employee and the Company acknowledge that notwithstanding the preceding
paragraph, the Company may from time to time after the Termination Date need to
discuss certain pending legal matters or issues with which employee may be
familiar. Employee covenants and agrees to be available to answer questions,
meet with Company counsel and testify in depositions and legal proceedings as
reasonably may be necessary or requested by Company.
2. ACCRUED PAY. Employee will be paid his accrued salary for his
services through the close of business on the Termination Date. The Company will
provide Employee with a check for his accrued salary, less payroll taxes and
other applicable payroll deductions, on the next scheduled pay date. The Company
shall have no further obligation to Employee as an Employee. The Company also
acknowledges its obligation to issue 50,000 restricted shares of common stock
earned by Employee on January 21, 2000 pursuant to his Employment Agreement
which Employee acknowledges were valued at $125,000 on such date and in
accordance therewith Employee shall pay $35,000 to the Company upon execution
hereof for remittance as part of his federal withholding taxes related to such
share issuances. In addition, the Company shall include the 50,000 shares in an
amendment to the registration statement relating to the conversion of the
Company's outstanding warrants. Employee shall be included as a selling
shareholder in any such amendment and agrees to execute any and all documents
required by the Company in connection with the filing of any such amendment.
Employee agrees that he will not utilize the registration statement to sell his
shares covered thereby once the time period required for the availability of
Rule 144 of the Securities Act of 1933 has passed, and at such time the Company
will have no further obligation to include Employee's shares in any registration
statement.
3. STOCK OPTIONS. The Company and Employee acknowledge and agree that
the options granted to Employee and the exercise prices and expiration periods
following the Termination Date are set forth on Schedule 3 hereof, which is
incorporated herein, and such options shall be exercisable by Employee subject
to the terms thereof. In addition, the Company shall use its reasonable best
efforts to include the options to purchase 250,000 shares in a Form S-8
registration statement to be filed with the Securities and Exchange Commission
in conjunction with the Company's contemplated registration of shares to be
issued pursuant to its 2000 Stock Incentive Plan; provided however, that the
Company shall begin the process of filing a registration statement covering the
shares to be issued by the Company upon exercise of the options to purchase
250,000 shares if the Company's closing bid price is equal to or in excess of
$4.00 per share for five (5) consecutive trading days.
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4. CONFIDENTIAL INFORMATION. Employee agrees that he shall not disclose
to any third party any confidential information concerning the Company or the
Company's business which was acquired or learned during the course of Employee's
employment with the Company. Employee will not retain without the Company's
express consent any copies of any of the Company's business records, or other
documents which are the property of the Company.
5. COVENANT NOT TO COMPETE; NON-SOLICITATION; NON-DISPARAGEMENT. As
consideration for the severance pay and other benefits provided by the Company
under this Agreement, Employee hereby agrees that he will not, during the period
ending twenty-four (24) months after the Termination Date, engage in any
business activities on behalf of any enterprise which competes with the Company.
Employee will be deemed to be engaged in such competitive business activities if
he participates in such a business enterprise as an employee, officer, director,
consultant, agent, partner, proprietor or other participant, provided, however,
the Company acknowledges that Employee's engaging in business with Trip.com
shall not violate this provision.
Employee agrees that he shall not, for a period of twenty-four (24)
months after the Termination Date,
(i) solicit any employee or full-time consultant of the
Company for the purposes of hiring or retaining such employee or
consultant, or
(ii) contact any present client of the Company or any
prospective client with which the Company was engaged in active
negotiations during the Employee's employment with the Company to
solicit such a person to enter into a contract with any organization
other than the Company or a related entity.
Employee and the Company mutually agree that they shall not at any time
(during the term of this Agreement or at any time thereafter) make or publish
any negative, critical or disparaging comments or statements whether written or
oral, about the employee, the Company or any of its officers, directors or
affiliated professional associations or employees or professionals thereof.
Additionally, Employee shall refrain from communicating with employees of the
Company regarding the Company or any of its officers or directors, except
Employee shall communicate with such individuals as Peter Sontag is informed and
consents in writing, via e-mail to in the future.
6. INJUNCTIVE RELIEF. Employee acknowledges and agrees that it would be
difficult to fully compensate the Company for damages resulting from the breach
or threatened breach of the covenants set forth in Sections 4 and 5 of this
Agreement and accordingly agrees that the Company shall be entitled to temporary
and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, to enforce such provisions in any action
or proceeding instituted in any United States District Court or in any court in
the State of Florida having subject matter jurisdiction. This provision with
respect to injunctive relief shall not, however, diminish the Company's right to
claim and recover damages.
It is expressly understood and agreed that although the parties
consider the restrictions contained in this Agreement to be reasonable, if a
court determines that the time or territory or any other restriction contained
in this Agreement is an unenforceable restriction on the activities of Employee,
no such provision of this Agreement shall be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such extent as
such court may judicially determine or indicate to be reasonable.
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7. RELEASE OF THE COMPANY. Employee, for himself, his heirs, assigns,
executors and administrators, does hereby waive and release the Company, and its
successors, assigns and their respective officers, directors, shareholders and
employees from any and all claims, actions, causes of action, rights, suits,
demands, obligations, and/or liabilities, joint or several, present, past or
future, known or unknown, of whatever description, both at law and in equity,
including, without limitation, all claims of employment discrimination, unjust
or improper dismissal or treatment, intentional or negligent torts, retaliation,
back pay, front pay, injuries, damages, reinstatement, future employment
opportunities and all other claims relating to his employment or separation from
employment with the Company which he may now have or may ever have had,
including without limitation, any claims which may be made by him or on his
behalf under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss. 1981,
the Age Discrimination in Employment Act, the Equal Pay Act, or the Fair Labor
Standards Act, with the exception of claims arising out of the Company's
obligations under this Agreement. Employee further transfers to the Company any
and all rights or benefits he is entitled to receive under any contract related
to the Company, whether oral or written, and covenants to take any and all
actions that may be required by the Company to further such transfer and enforce
such rights, including but not limited to the execution of any required
documents, provided however, the foregoing release does not release the Company
from it's obligation to the Employee pursuant to any consultant, option and/or
security agreement entered into with the Company.
8. RELEASE OF EMPLOYEE. As consideration for the covenants provided by
Employee under this Agreement, the Company, for itself, its subsidiaries,
successors and assigns, does hereby waive and release Employee, and his heirs
and assigns, from any and all claims, actions, causes of action, rights, suits,
demands and/or liabilities, known or unknown, both at law or in equity, relating
to Employee's employment with the Company or Employee's obligations under any
agreements with the Company, which Employee may now have or may ever have had,
with the exception of claims arising out of Employee's obligations under
Sections 6 and 7 of this Agreement, provided however, the foregoing release does
not release Employee from his obligation to the Company pursuant to any
promissory note and security agreement entered into with the Company.
9. RIGHT TO REVOKE RELEASE. Employee has a full seven (7) days
following the execution of this Agreement to revoke the Release and has been and
hereby is advised in writing that this Release shall not become effective or
enforceable until the seven (7) day revocation period has expired.
10. SEPARABILITY. If any provision of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
11. ENTIRE AGREEMENT. This Agreement and the agreements referenced
herein contains the entire understanding between Employee and the Company
relating to his resignation. This Agreement supersedes all other agreements,
oral understandings or other agreements or representations between Employee and
the Company which have not been incorporated herein.
12. THE UNDERSIGNED FURTHER STATES THAT HE HAS CAREFULLY READ THE
WITHIN AND FOREGOING "AGREEMENT OF SEPARATION AND RELEASE," THAT HE IS AWARE
THAT HE HAS THE RIGHT TO REVIEW THIS AGREEMENT FOR A PERIOD OF UP TO TWENTY-ONE
DAYS, THAT HE HAS BEEN ENCOURAGED TO REVIEW THE SAME WITH AN ATTORNEY OF HIS
CHOICE, AND THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THE FOREGOING
"AGREEMENT OF SEPARATION AND RELEASE" AND THAT HE EXECUTES THE SAME AS HIS OWN
FREE ACT AND DEED.
IN WITNESS WHEREOF, the Employee and the Company, by a duly authorized
officer, have set their hands and seals to this Agreement of Separation and
Release as of this 5th day of June, 2000.
WITNESS: EMPLOYEE:
/s/ Mark Mastrini
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Mark Mastrini
ATTEST: 800 TRAVEL SERVICES, INC.
By: /s/ Peter M. Sontag
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Peter M. Sontag
Its: Chief Executive Officer
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