EXHIBIT 10.27
SEVERANCE AND SETTLEMENT AGREEMENT AND GENERAL RELEASE
1. This Severance and Settlement Agreement and General Release (the "Agreement")
is entered into as of December 8,2001, by and between Xxxxxxx X. Xxxxxxx
("Executive") and Worldwide Flight Services, Inc. ("WFS"). The Executive and WFS
are each referred to as a "Party" and together they are referred to as the
"Parties." Executive and WFS entered into an Executive Employment Agreement,
dated as of October 6,2001 (the "Employment Agreement"), and related
Non-Competition and Confidentiality Agreement, dated as of October 6, 2001 (the
"Non-Competition and Confidentiality Agreement").
2. Executive wishes to voluntarily resign from WFS and the Parties desire to
terminate the Employment Agreement and to resolve all issues related to
Executive's employment with and separation from WFS amicably and, without the
expenditure of time or expense of contested litigation. The Parties also desire
to resolve any other known or unknown claims as more fully set forth below.
Executive's last day of employment with WFS is November 30, 2001.
3. WFS expressly denies any violation of any contract, federal, state or local
statute, ordinance, rule, regulation, order, policy or other law. Neither this
Agreement nor anything contained herein shall be construed to be or shall be
admissible in any proceeding as evidence, or any admission by WFS, of any such
violation of any contract, statute, ordinance, rule, regulation, order, policy
or other law. This Agreement maybe introduced, however, in any proceeding to
enforce its terms, subject to an order protecting its confidentiality.
4. In consideration of the covenants undertaken and the releases given by
Executive, and as a compromise, settlement and release of any claims for
wrongful termination that Executive might assert, and assuming that this
Agreement is not revoked by Executive in accordance with Section 7 hereof, WFS
agrees to: (a) provide Executive with 12 monthly payments of$37,083.33, each
subject to necessary payroll deductions, such payments to begin with the first
WFS pay cycl6 after the date hereof; (b) continue; to the extent Executive does
not receive comparable benefits from a new employer, Executive's existing group
life, hospitalization or disability insurance plan, health program or similar
benefits through November 29, 2002 on the same terms as WFS ' s other senior
executives; (c) continue to pay to maintain through November 29,2002 the monthly
premiums associated with the whole life insurance policy maintained by Executive
for the purpose of providing benefits on Executive's death equal to $890,000;
(d) pay Executive as soon as practicable after the date hereof the full balance
of his account under the WFS defined compensation plan, including all employer
contributions to the date hereof; (e) pay Executive on the date hereof for 20
accrued but unused vacation days, subject to necessary payroll deductions; (f)
pay directly or reimburse Executive, up to $5,000, for annual dues of a country
club membership, selected by Executive in the Dallas/Fort Worth area, incurred
for a period of 12 months of the date hereof; (g) subject to the balance of this
Section 4, upon the sale of Executive's home at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxx 00000 (the "Home"), reimburse Executive an amount equal to the
excess, if any, of Executive's purchase price for the Home over the sale price
for the Home (in each case, less fees, commissions and expenses); (h)
repurchase, subject to the receipt of documentation reasonably satisfactory to
WFS, customary title documents and delivery of such vehicles in overall good
working order and condition, subject to reasonable wear and tear, Executive's
2000 Oldsmobile Bravada and 1999 Buick Park Avenue, at Executive's original
cost; and (i) enter into a consulting agreement substantially on the terms and
conditions set forth on Exhibit A to this Agreement. The Employment Agreement
shall be terminated as of November 30,2001 and be of no further force or
effect thereafter. The terms of the letter addressed to Executive from WFS dated
August 29,2001 shall also terminate as of November 30,2001 and be of no further
force or effect.
In connection with the obligation of WFS pursuant to Section 4(g) of this
Agreement, Executive: (i) agrees to permit WFS, at its cost and expense, to
obtain such appraisals of the Home as WFS reasonably deems are necessary; and
(ii) grants to WFS a right of first refusal to purchase the Home at the same
price and on the same terms as are contained in a bona fide written offer from
any person or entity to whom or which Executive proposes to sell the Home.
Pursuant to such right of first refusal, Executive shall promptly furnish a copy
of such offer to WFS. The copy of such offer shall be sent, by certified mail;
return receipt requested, or overnight receipted delivery service to Worldwide
Flight Services, Inc., 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxx-Xxxxxxxx Gouedard, with a copy sent by the same method to
Xxxxxxxx X. Xxxxx, Esq., Xxxxxx Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000. Within 5 business days following
its receipt of such offer, WFS shall either accept or reject such offer in
writing. Such offer shall be deemed rejected if WFS does not accept it in
writing within such period. If WFS timely accepts such offer, it shall proceed
to purchase the Home at the price and on the terms set forth in the offer. If
WFS fails to timely accept the offer, Executive shall be free to accept the
offer and convey the Home to the offeror in accordance with the terms of the
offer, provided, however, that Executive shall not convey the Home to the
offeror or to any other party at a price which is less than 97% of the price
contained in the offer or otherwise on terms which are materially less favorable
to Executive without first reoffering the Home to WFS at such reduced price
and/or modified terms in the manner set forth above.
5. Executive hereby resigns each and every position as an officer and director
of WFS and any and all of its affiliates.
6. In consideration of the covenants undertaken herein by the Parties and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, provided, however, that notwithstanding anything in this
Agreement to the contrary, neither Executive nor WFS release, waive, absolve or
discharge any Claims (as defined below) arising out of this Agreement or the
Consulting Agreement. The Parties do hereby acknowledge full and complete
satisfaction and settlement of and do hereby release, absolve and discharge each
other, and any parent, subsidiary and related companies or business concerns,
past and present, and each of them, as well as trustees, directors, officers,
agents, servants and employees, past and present, and each of them (hereinafter
collectively referred to as "Releasees") from any and all claims, causes of
action and liabilities of whatever kind or nature, whether known or unknown,
suspected or unsuspected, direct or indirect, which the Parties now or may in
the future have or at any other time had against Releasees, or any of them,
arising out of or in any way connected with (a) Executive's employment with and
separation from WFS; or (b) any event, act or omission, committed, omitted or
occurring prior to the date hereof ("Claims"). This release includes, but is not
limited to, claims arising under (i) federal, state or local laws prohibiting
employment discrimination (on the basis of, for example, age, sex, race, color,
national origin, religion, disability, handicap status or sexual orientation),
including without limitation, the Civil Rights Acts of 1964 and 1991, the
American with Disabilities Act, the Age Discrimination in Employment Act, the
Older Workers Benefit Protection Act and any similar state law, rule or
regulation; (ii) the Family and Medical Leave Act and any similar state law,
rule or regulation; (iii) federal or state common law, including without
limitation, claims for wrongful discharge,
breach of express or implied contract, violation of public policy, defamation,
negligent hiring, retention and/or supervision and intentional and negligent
infliction of emotional distress; and (iv) any state workers compensation act
and any state labor code.
7. Executive acknowledges and agrees that: (a) pursuant to this release, he is
waiving and releasing rights or claims under, among other things, the Age
Discrimination in Employment Act (" ADEA "); (b) rights and claims under the
ADEA that may arise for events occurring after the date this release is executed
are not waived; (c) he has been advised in writing to consult with an attorney
prior to executing this release and he has~ in fact, reviewed the release with
an attorney; ( d) he was given a period of at least twenty-one (21) days within
which to consider the release, although his determination to consent to the
release was made in less than 21 days; and ( e) he is knowingly and voluntarily
entering into the release in exchange for consideration provided by WFS, which
consideration is in addition to anything of value to which he is already
entitled from WFS.
Executive further acknowledges and agrees that he may revoke this Agreement
during the seven-day period following his execution of this Agreement by
notifying WFS in writing at the following address: Worldwide Flight Services,
Inc., 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
Xxxx-Xxxxxxxx Gouedard, Fax no. (000) 000-0000. Executive further acknowledges
and agrees that this Agreement shall not become effective or enforceable until
Executive's seven-day revocation period has expired.
8. WFS agrees that except as required pursuant to lawful court order or
subpoena, or as otherwise agreed to in writing with Executive, it will provide
only the following information in response to requests for information regarding
Executive's employment: dates of employment; titles and positions held by
Executive; and compensation and benefits received by Executive.
9. The Parties agree that the Non-Competition and Confidentiality Agreement
shall remain in full force and effect until November 30, 2002. Executive agrees
to return on November 30, 2001, his last day of employment, all property of WFS
in Executive's possession, including without limitation any and all credit
cards, telephone cards, air pass cards and - computer equipment.
10. The Parties acknowledge that they are aware they may hereafter discover
facts different from, or in addition to, those they now know or believe to be
true with respect to the claims, causes of action and liabilities herein
released, and agree that the release herein shall be and remain in all respects
a complete and general release as to all matters released herein,
notwithstanding any such unknown or additional facts.
11. It is the intention of the Parties that in executing this instrument that it
shall be effective as a bar to each and every Claim waived herein, and the
Parties consent and agree that this Agreement shall be given full force and
effect according to each and all of its express terms and provisions.
12. The Parties agree that the terms of this Agreement shall remain strictly
confidential and, except as required by law, lawful court order or subpoena,
that neither shall disclose to any third person any of the terms of this
Agreement, except that WFS may advise its appropriate corporate officers or
employees and its counsel and auditors, of the terms of this Agreement and
Executive may advise his counsel and members of his immediate family of the
terms of this Agreement. A breach of this provision of this Agreement shall be
deemed a material violation of the Agreement.
13. If any provision of this Agreement or application thereof is held invalid,
the invalidity shall not affect other provisions or applications of the
Agreement which may be given effect without the invalid provision or
application. The provisions of this Agreement are severable.
14. The Parties agree that they will not assert or maintain against any Party
they have released in this Agreement any claim, suit or proceeding arising out
of or in connection with the matters respectively released herein.
15. The Parties represent and warrant to each other that they have not
heretofore assigned or transferred or purported to assign or transfer to any
person or entity any Claim, herein released. The Parties agree to indemnify and
hold harmless the other against any Claim, including attorneys' fees actually
paid or incurred, arising out of or in any way connected with any such transfer
or assignment or any such purported or claimed transfer or assignment by such P
arty.
16. This Agreement and all covenants and releases set forth herein shall be
binding upon and shall inure to the benefit of the respective Parties hereto,
their legal successors, heirs, assigns, partners, attorneys, officers, directors
and shareholders. .
17. This Agreement shall be construed in accordance with, and deemed governed
by, the laws of the State of New York applicable to agreements made and not to
be entirely performed within such State, without regard to conflicts of laws
principles.
18. This Agreement may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original and the counterparts shall
together constitute one and same agreement.
19. The Parties acknowledge that they have read this Agreement, fully understand
its rights, privileges and duties under this Agreement and enter into this
Agreement freely and voluntarily. The Parties further acknowledge they have had
the opportunity to consult with an attorney to explain the terms of this
Agreement and the consequences of signing it.
20. The Parties acknowledge and represent to each other that no promise or
representation not contained in this Agreement has been made to them and
acknowledge and represent that this Agreement contains all terms and conditions
pertaining to the subject matter hereof. The terms of this Agreement are
contractual and not a mere recital. The Agreement may not be orally modified,
amended or changed. No other promises or agreements shall be binding unless they
be in writing and signed by WFS and Executive.
21. This Agreement and the provisions contained herein shall not be construed or
interpreted for or against any Party on the grounds that such Party drafted or
caused that Party's legal representative to draft any of its provisions.
Each of the Parties has read the foregoing Severance and Settlement Agreement
and General Release and accepts and agrees to the provisions contained herein
and hereby executes it voluntarily and with full understanding of its
consequences.
EXECUTIVE
Dated: November 30, 2001 /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
WORLDWIDE FLIGHT SERVICES, INC.
Dated: November 30, 2001 By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Senior Vice President
