EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of August, 2001, by
and between Pegasus Solutions, Inc., a Delaware corporation (the "Company")
and Mark C. Wells (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is essential and in the best interest of the Company and
its stockholders to enter into this Agreement to retain the services of the
Executive and to ensure his continued dedication and efforts; and
WHEREAS, in order to induce the Executive to enter into and continue
employment by the Company, the Company desires to provide the Executive with
certain benefits during the term of his employment and, in the event his
employment is terminated, to provide the Executive with the benefits and
payments described herein.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Employment Term.
The "Employment Term" shall commence on August 1, 2001 (the "Effective
Date") and shall expire on December 31, 2003 provided that such term will be
automatically renewed and extended indefinitely after December 31, 2003,
until terminated as provided herein, in the event Executive remains in the
employ of the Company after December 31, 2003.
2. Employment.
(a) Subject to the provisions of Section 8 hereof, the Company
agrees to continue to employ the Executive and the Executive agrees to
remain in the employ of the Company during the Employment Term. During the
Employment Term, the Executive shall be employed as Executive Vice President
of the Company. The Executive shall perform the duties, undertake the
responsibilities and exercise the authority customarily performed,
undertaken and exercised by persons situated in a similar executive
capacity. He shall also promote, by entertainment or otherwise, the
business of the Company.
(b) During the Employment Term, excluding periods of vacation and
sick leave to which the Executive is entitled, the Executive agrees to
devote reasonable attention and time during usual business hours to the
business and affairs of the Company to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder. The Executive may (1)
serve on corporate, civil or charitable boards or committees, (2) manage
personal investments and (3) deliver lectures and teach at educational
institutions, so long as such activities do not significantly interfere with
the performance of the Executive's responsibilities hereunder. It is
expressly understood and agreed that to the extent that any such activities
have been conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities similar
in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
3. Compensation.
(a) Base Salary. Beginning on the Effective Date, the Company
agrees to pay or cause to be paid to the Executive an annual base salary as
mutually agreed, and as may be increased from time to time by the
Compensation Committee of the Board (hereinafter referred to as the "Base
Salary"). Such Base Salary shall be payable in accordance with the
Company's customary practices applicable to its executives.
(b) Annual Bonus. In addition to Base Salary, the Executive
shall be awarded, for each fiscal year ending during the Employment Term, an
annual discretionary bonus (the "Annual Bonus") in accordance with the terms
and conditions of the bonus plan approved by the Compensation Committee.
Any actual payment or award under such Annual Bonus plan, and the size of
any payment or award, will be in accordance with the terms of the plan.
Each such Annual Bonus shall be paid no later than the end of the third
(3rd) month of the fiscal year next following the fiscal year for which the
Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus.
(c) Supplemental Employee Retirement Plan. In addition to the
Base Salary and Annual Bonus, the Executive shall be entitled to participate
in the Company's Supplemental Employee Retirement Plan as adopted by the
Company effective January 1, 2000 and as amended thereafter provided that
Executive has agreed to such amendment. Executive shall not be subject to
any amendment to the Supplemental Employee Retirement Plan without
Executive's written consent.
(d) Stock Plans. Executive shall be entitled to participate in
the Company's Stock Option Plans, Employee Stock Purchase Plans and such
other stock-related plans as may be applicable to executives of the Company
and to receive such stock option grants and any and all other rights of
participation as may be provided therein.
(e) Life Insurance. Executive shall be entitled to the
continuation of such life insurance coverage, if any, at the Company's
expense, as is currently in effect as of the date of this Agreement.
(f) Car Allowance. Executive shall be entitled to a car allowance
of Nine Hundred Fifty Dollars ($950.00) per month for each month during the
term of this Agreement.
(g) Club Dues. Executive shall be entitled to reimbursement by
the Company for monthly dues payable to a country club or similar club of
Executive's choosing.
4. Employee Benefits.
During the Employment Term and beginning on the Effective Date, the
Executive shall be entitled to participate in all employee benefit plans,
practices and programs maintained by the Company and made available to
employees generally, including, without limitation, all pension, retirement,
profit sharing, savings, medical, hospitalization, disability, dental, life
or travel accident insurance benefit plans. Unless otherwise provided
herein, the compensation and benefits under, and the Executive's
participation in, such plans, practices and programs shall be on the same
basis and terms as are applicable to employees of the Company generally, but
in no event on a basis less favorable in terms of benefit levels and
coverage than offered to other similarly situated executives of the Company.
The Company may reduce benefit levels if such changes are part of broad-
based changes in the Company's benefit programs offered generally to all
employees. Notwithstanding the foregoing, except as otherwise set forth
herein, nothing herein shall obligate the Company to adopt such plans,
practices or programs.
5. Executive Benefits.
During the Employment Term, the Executive shall be entitled to
participate in all executive benefit or incentive compensation plans
maintained or established by the Company for the purpose of providing
compensation and/or benefits to executives of the Company including, but not
limited to, any supplemental retirement, salary continuation, stock option,
deferred compensation, supplemental medical or life insurance or other bonus
or incentive compensation plans; provided, however, the grant of a stock
option in any year is not guaranteed and will be dependent on the Board's
evaluation of the Executive's performance. Unless otherwise provided
herein, the compensation and benefits under, and the Executive's
participation in, such plans shall be on the same basis and terms as other
similarly situated executives of the Company. No additional compensation
provided under any of such plans shall be deemed to modify or otherwise
affect the terms of this Agreement or any of the Executive's entitlements
hereunder. Notwithstanding the foregoing, except as otherwise set forth
herein, nothing herein shall obligate the Company to adopt such plans,
practices or programs.
6. Other Benefits.
(a) Fringe Benefits and Perquisites. During the Employment Term,
the Executive shall be entitled to all fringe benefits and perquisites
generally made available by the Company to its executives. Unless otherwise
provided herein, the fringe benefits and perquisites provided to Executive
shall be on substantially the same basis and terms as other similarly
situated executives of the Company.
(b) Expenses. The Executive shall be entitled to receive
reimbursement of all expenses reasonably incurred by him in connection with
the performance of his duties hereunder or for promoting, pursuing or
otherwise furthering the business or interests of the Company in accordance
with the accounting procedures and expense reimbursement policies of the
Company as it shall adopt from time to time.
7. Vacation and Sick Leave.
During the Employment Term, at such reasonable times as the Board shall
in its discretion permit, the Executive shall be entitled without loss of
pay, to absent himself voluntarily from the performance of his employment
under this Agreement, provided that:
(a) The Executive shall be entitled to annual vacation in
accordance with the policies as periodically established by the Board.
(b) The Executive shall be entitled to sick leave (without loss
of pay) in accordance with the Company's policies as in effect from time to
time.
8. Termination.
During the Employment Term, the Executive's employment hereunder may be
terminated under the following circumstances:
(a) Cause. The Company may terminate the Executive's employment
for "Cause". A termination of employment is for "Cause" if the Executive:
(1) has been convicted of or plead guilty or no contest to a
felony;
(2) intentionally engaged in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise or
from which he derives an improper material personal benefit;
provided, however, that no termination of the Executive's
employment shall be for Cause as set forth in this clause (2)
until:
(i) there shall have been delivered to the Executive a
copy of a written notice setting forth that the Executive was
guilty of the conduct set forth in this clause (2) and specifying
the particulars thereof in reasonable detail; and
(ii) the Executive shall have been provided an
opportunity to be heard by the Board (with the assistance of the
Executive's counsel if the Executive so desires). No act, nor
failure to act, on the Executive's part shall be considered
"intentional" unless he has acted, or failed to act, with an
absence of good faith and without a reasonable belief that his
action or failure to act was in the best interest of the Company.
(3) commits gross malfeasance or intentionally fails to perform
the duties of the Executive's position; provided, however, the
Company shall first notify the Executive in writing stating with
reasonable specificity the action or inaction of the Executive
which forms the basis for such notice and the Executive fails to
cure such malfeasance or failure within ten (10) days of the date
of such notice, and
(4) violates any valid non-competition or non-disclosure
agreement or the Company's insider trading policy, if any.
Notwithstanding anything contained in this Agreement to the contrary,
no failure to perform by the Executive after a Notice of Termination is
given by the Executive shall constitute Cause for purposes of this
Agreement.
(b) Disability. The Company may terminate the Executive's
employment after having established the Executive's Disability. For
purposes of this Agreement, "Disability" means a physical or mental
infirmity which impairs the Executive's ability to substantially perform his
material duties under this Agreement which continues for a period of at
least ninety (90) consecutive days. The Executive shall be entitled to the
compensation and benefits provided for under this Agreement for any period
during the Employment Term and prior to the Termination Date (as hereinafter
defined) resulting from the Executive being unable to work due to a physical
or mental infirmity and as otherwise provided in this Agreement in
connection with Disability. Notwithstanding anything contained in this
Agreement to the contrary, if prior to the Termination Date specified in a
Notice of Termination (as hereinafter defined) relating to the Executive's
Disability, the Executive is no longer under a Disability, the Executive
will be entitled to return to his position with the Company as set forth in
this Agreement in which event no Disability of the Executive will be deemed
to have occurred.
(c) Good Reason.
(1) The Executive may terminate his employment for "Good
Reason". For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the events or conditions described below in
subsections (i) through (vi) hereof:
(i) If the Executive shall cease to be the
Executive Vice President of the Company (or any successor or
parent thereof) or upon the assignment to the Executive of any
material duties or responsibilities which are inconsistent with
his position or responsibilities; or any removal of the Executive
from or failure to reappoint or reelect him to any such offices or
positions, except during a period of Disability or in connection
with the termination of his employment for Disability, Cause, as a
result of his death, or by the Executive other than for Good
Reason;
(ii) A reduction in the Executive's Base Salary or
any failure to pay the Executive any compensation or benefits to
which he is entitled within thirty (30) days of the due date;
(iii) A Change of Control as hereinafter defined;
(iv) Any material breach by the Company of any
provision of this Agreement; provided, however, the Executive
shall first notify the Company in writing stating with reasonable
specificity the breach by the Company and the Company fails to
cure such breach within ten (10) days of the date of such notice;
(v) Any purported termination of the Executive's
employment for Cause by the Company which is found by a court of
competent jurisdiction or an arbitrator not to comply with the
terms of Section 8(a); or
(vi) The failure of the Company to obtain an
agreement, reasonably satisfactory to the Executive, from any
successor or assign of the Company to assume and agree to perform
this Agreement, as contemplated in Section 13 hereof.
(2) The Executive's right to terminate his employment
pursuant to this Section 8(c) shall not be affected by his incapacity
due to physical or mental illness.
(d) Voluntary Termination. Upon thirty (30) days prior written
notice, either the Executive or the Company may voluntarily terminate the
Executive's employment hereunder at any time; provided, however, in the
event of any such termination by the Company, the Company shall pay to the
Executive the amounts set forth in Section 9(d) hereof.
9. Compensation Upon Termination.
Upon termination of the Executive's employment during the Employment
Term, the Executive shall be entitled to the following benefits:
(a) If the Executive's employment with the Company shall be
terminated by the Company for Cause or by the Executive other than for Good
Reason, the Company shall pay the Executive all amounts earned and accrued
through the Termination Date but not paid as of the Termination Date,
including:
(1) the Base Salary,
(2) an amount equal to the Pro Rata Bonus,
(3) reimbursement for reasonable and necessary expenses
incurred by the Executive on behalf of the Company during the period
ending on the Termination Date,
(4) vacation pay, and
(5) sick leave (collectively, "Accrued Compensation").
(b) If the Executive's employment with the Company shall be
terminated by the Company for Disability, the Company shall pay the
Executive all amounts earned or accrued through the Termination Date but not
paid as of the Termination Date, including the Accrued Compensation. In
addition, the Executive shall be entitled to the following:
(1) the Base Salary and all other benefits customarily
received for a period of one (1) year from the Termination Date
resulting from such Disability,
(2) an amount equal to the Pro Rata Bonus. The "Pro Rata
Bonus" is an amount equal to the maximum bonus amount the Executive
would have been entitled to in the fiscal year of the Termination Date
multiplied by a fraction, the numerator of which is the number of days
in such fiscal year through the Termination Date and the denominator of
which is 365,
(3) payments as more specifically provided by the
Supplemental Employee Retirement Plan, and
(4) one (1) additional year of vesting from the Termination
Date of all stock option grants not then expired or terminated.
(c) If the Executive's employment with the Company shall be
terminated by reason of the Executive's death, the Company shall pay the
Executive all amounts earned or accrued through the Termination Date but not
paid as of the Termination Date, including the Accrued Compensation. In
addition, the Company shall pay to the Executive's beneficiaries the
following:
(1) the Base Salary and all other benefits customarily
received for a period of one (1) year from the date of such death,
(2) an amount equal to the Pro Rata Bonus,
(3) payments as more specifically provided by the
Supplemental Employee Retirement Plan, and
(4) one (1) additional year of vesting from the Termination
Date of all stock option grants not then expired or terminated.
(d) If the Executive's employment with the Company shall be
terminated by the Company voluntarily, without Cause or by the Executive for
Good Reason, the Company shall take the following actions and pay to the
Executive the following:
(1) all Accrued Compensation and a Pro Rata Bonus,
(2) the Company shall continue to pay the Executive as
severance pay and in lieu of any further compensation (except as
otherwise provided herein) a monthly payment for a period of twenty-
four (24) months following the Termination Date equal to the sum of
(A) the Executive's monthly Base Salary in effect for the month
immediately preceding the Termination Date and (B) one twelfth (1/12)
of the Bonus. The "Bonus" is an amount equal to the maximum bonus
amount the Executive would have been entitled to in the fiscal year of
the Termination Date,
(3) during the twelve (12) month period immediately
following the Termination Date (the "Continuation Period"), the Company
shall at its expense continue on behalf of the Executive and his
dependents and beneficiaries the life insurance, disability, medical,
dental and hospitalization benefits provided (A) to the Executive
immediately prior to the Notice of Termination or (B) to other
similarly situated executives who continue in the employ of the Company
during the Continuation Period. Notwithstanding the immediately
preceding sentence, the coverage and benefits (including deductibles
and costs) provided in this Section 9(d)(3) during the Continuation
Period shall be no less favorable to the Executive and his dependents
and beneficiaries, than the coverages and benefits in effect as of the
Termination Date. The Company's obligation hereunder with respect to
the foregoing benefits shall terminate in the event the Executive
obtains any such benefits (regardless of level and scope of coverage)
pursuant to a subsequent employer's benefit plans. This Section
9(d)(3) shall not be interpreted as to limit any benefits to which the
Executive, his dependents or beneficiaries may be entitled under any of
the Company's employee benefit plans, programs or practices following
the Executive's termination of employment, including without
limitation, retiree medical and life insurance benefits,
(4) the restrictions on any outstanding stock options
(including restricted stock and granted performance shares or units)
granted to the Executive under any stock option plans or under any
other incentive plan or arrangement shall lapse and such incentive
award shall become 100% vested, all stock options and stock
appreciation rights granted to the Executive shall become immediately
exercisable and shall become 100% vested, and all performance units
granted to the Executive shall become 100% vested,
(5) for a period of two (2) years after the date of
termination, the Company shall continue to contribute to the
Supplemental Employee Retirement Plan for the benefit of the Executive
and the Executive shall be entitled to the benefits of the Supplemental
Employee Retirement Plan in the same manner as if the Executive had
continued as an employee for the additional two (2) years and the
Executive shall be deemed to have satisfied the requirements for
eligibility for benefits as described in the Supplemental Employee
Retirement Plan, and
(6) the Company shall reimburse to the Executive the costs
of any outplacement services incurred by Executive, up to a maximum
amount of Fifteen Thousand Dollars ($15,000.00).
(e) The amounts provided for in Sections 9(a), 9(b)(2), 9(c)(2)
and 9(d)(1) shall be paid within thirty (30) days after the Executive's
Termination Date. Expenses incurred by Executive under Section 9(d)(6)
shall be paid within thirty (30) days of the receipt by the Company of a
claim for reimbursement submitted by the Executive.
(f) The Executive hereby acknowledges that full payment and/or
performance by the Company of its obligations as set forth in Sections 9(a),
(b), (c) or (d) hereof shall be in lieu of any other remedy or cause of
action the Executive may have, either at law or in equity, as a result of
the termination of the Executive's employment pursuant to such Sections.
10. Definitions.
(a) Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which indicates the specific
termination provision in this Agreement, if any, relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated. Any purported termination by the Company or by the Executive
shall be communicated by written Notice of Termination to the other. For
purposes of this Agreement, no such purported termination of employment
shall be effective without such Notice of Termination.
(b) Termination Date, Etc. For purposes of this Agreement,
"Termination Date" shall mean in the case of the Executive's death, his date
of death, or in all other cases, the date specified in the Notice of
Termination subject to the following:
(1) If the Executive's employment is terminated by the Company
for Cause, the date of the Notice of Termination,
(2) If the Executive's employment is terminated by the Company
due to Disability, the date specified in the Notice of Termination
shall be at least thirty (30) days from the date the Notice of
Termination is given to the Executive, provided that the Executive
shall not have returned to the full-time performance of his duties
during such period for at least thirty (30) days, and
(3) If the Executive's employment is terminated for Good Reason,
the date specified in the Notice of Termination shall be not more than
thirty (30) days from the date the Notice of Termination is given to
the Company.
(c) Change In Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(1) An acquisition of any voting securities of the Company (the
"Voting Securities") by any "Person" (as the term person is used for
purposes of Section 12(d) or 13(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) other than any parent,
subsidiary or affiliate of the Company immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than fifty percent (50%) of
the combined voting power of the Company's then outstanding voting
securities; provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a Non-
Control Acquisition (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Company or
(B) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this
definition, a "Subsidiary") or (ii) the Company or its Subsidiaries,
(2) The individuals who, as of the date of this Agreement is
approved by the Board, are members of the Board (the "Incumbent Board")
cease for any reason to constitute at least one half (1/2) of the
members of the Board; provided, however, that if the election, or
nomination for election of any new director was approved by a vote of
the members of the Board as provided by the Company's Bylaws, such new
director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided, however, that no individual
shall be considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest, or
(3) Approval by the stockholders of the Company of:
(i) A complete liquidation or dissolution of the
Company, or
(ii) An agreement for the sale or other disposition of
all or substantially all of the assets of the Company to any
Person (other than a transfer to a Subsidiary or a parent in
a Non-Control Acquisition).
11. Excise Tax Payments.
In the event of a determination that a portion of any payment or
benefit to the Executive or for his benefit payable or distributable
pursuant to the terms of this Agreement is or will be deemed to be an
"excess parachute payment" within the meaning of Section 280G(b)(1) of the
Internal Revenue Code of 1986, as amended, the Company shall be responsible
for the payment of any excise or similar tax assessed in connection
therewith.
12. Noncompetition.
(a) Except with the prior written consent of the Company
authorized by a resolution adopted by the Board, for the period beginning
upon the date hereof and ending on (i) in the event of the termination of
the Executive's employment by the Executive for Good Reason pursuant to
Section 8(c) or by the Company pursuant to Section 8(d) hereof and the
Executive is receiving payments from the Company pursuant to Section 9(b) or
(d) hereof, the date on which the last such payment is received; or (ii) in
the event of the voluntary termination of the Executive's employment by the
Executive pursuant to Section 8(d) hereof or termination by the Company for
Cause, the date which is nine (9) months from the Termination Date.
Executive shall not directly or indirectly as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever engage
in, become substantially financially interested in, employed by or have any
connection with, any business engaged principally in the processing of
electronic hotel reservations or travel agent commissions in any country
where the Company or any of its subsidiaries is then engaged in such
business; provided, however, that Executive may own any securities of any
corporation which is engaged in such business and is publicly traded stock
or securities of such corporation.
(b) Executive agrees that for a period of one (1) year following
termination of employment with the Company, he will not solicit or in any
manner encourage employees of the Company, its subsidiaries or parent to
leave its employ.
(c) In case one or more of the terms contained in Subsections (a)
or (b) of this Section 12 shall for any reason become invalid, illegal, or
unenforceable, such invalidity, illegality or unenforceability shall not
affect any other terms herein, but such invalid, illegal or unenforceable
terms shall be deemed deleted and such deletion shall not affect the
validity of the other terms of this Section. In addition, if any one or
more of the terms contained in Subsections (a) or (b) of this Section shall
for any reason be held to be excessively broad with regard to time,
duration, geographic scope or activity that term shall be construed in a
manner to enable it to be enforced to the extent compatible with applicable
law.
13. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns and the Company shall
require any successor or assign to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken
place. The term "Company" as used herein shall include such successors and
assigns. The term "successors and assigns" as used herein shall mean a
corporation or other entity acquiring all or substantially all the assets
and business of the Company (including this Agreement) whether by operation
of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, his beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
14. Fees and Expenses.
The Company shall pay all legal fees and related expenses (including
the costs of experts, evidence and counsel) incurred by the Executive as a
result of the breach or default by the Company of the terms hereof.
15. Notice.
For purposes of this Agreement, notice and all other communications
provided for in the Agreement (including the Notice of Termination) shall be
in writing and shall be deemed to have been duly given when personally
delivered or sent by certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses last given by each party to
the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All
notices and communications shall be deemed to have been received on the
earlier of the date of delivery thereof or on the third (3rd) business day
after the mailing thereof, except that notice of change of address shall be
effective only upon receipt.
16. Non-exclusivity of Rights.
Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its subsidiaries and for
which the Executive may qualify, nor shall anything herein limit or reduce
such rights as the Executive may have under any other agreements with the
Company or any of its subsidiaries. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan or
program of the Company or any of its subsidiaries shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
17. Settlement of Claims.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off
(except against amounts actually owed by the Executive to the Company as
evidenced by promissory notes, loan agreements and similar documents
executed by the Executive), counterclaim, defense, recoupment or other right
which the Company may have against the Executive or others.
18. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and
signed by the Executive and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly
set forth in this Agreement.
19. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas without giving effect to the
conflict of law principles thereof. Subject to Section 22 of this
Agreement, any action brought by any party to this Agreement shall be
brought and maintained in a court of competent jurisdiction in Dallas
County, Texas.
20. Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provisions hereof shall not affect the
validity or enforceability of the other provisions hereof.
21. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, if any, understandings and
arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof.
22. Arbitration.
Any dispute or controversy arising out of or relating to this Agreement
shall be determined and settled by arbitration in the City of Dallas, Texas,
in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association then in effect, and judgement upon the award
rendered by the arbitrator may be entered in any court of competent
jurisdiction. Such arbitrator shall have no power to modify any of the
provisions of this Agreement, and his or her jurisdiction is limited
accordingly. A party requesting arbitration hereunder shall give ten (10)
days' written notice to the other party to request such arbitration. Unless
the arbitrator decides otherwise, the successful party in any such
arbitration shall be entitled to reasonable attorneys' fees and costs
associated with such arbitration. If the parties hereto cannot agree upon
an arbitrator, then one shall be appointed by the governing office of the
American Arbitration Association. Any arbitrator so appointed shall have
extensive experience in a profession connected with the subject matter of
the dispute. Whenever any action is required to be taken under this
Agreement within a specified period of time and the taking of such action is
materially affected by a matter submitted to arbitration, such period shall
automatically be extended by the number of days plus ten (10) that are taken
for the determination of that matter by the arbitrator.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its Chairman of the Board or Chairman of the Compensation
Committee.
PEGASUS SOLUTIONS, INC. EXECUTIVE:
By: _____________________________ By: _____________________________
Mark C. Wells
Print: ___________________________
Title: ___________________________