EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of October 6, 2001
between Worldwide Flight Services Holdings, a Delaware corporation, together
with its subsidiaries (the "Company") and Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the parties wish to establish the terms of
Executive's future employment with the Company effective as of the Date hereof.
Accordingly, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment by the Company. The Company shall employ the
Executive effective as of the date hereof (the "Effective Date") to render
exclusive and full-time services to the Company. The Executive will serve in the
capacity of Chairman and Chief Executive Officer of the Company and shall serve
as a member of the Board of Directors of the Company. The Executive will perform
such duties as are imposed on the holder of that office by the By-laws of the
Company and such other duties as are customarily performed by one holding such
positions in the same or similar businesses or enterprises as those of the
Company. The Executive will perform such other duties as may be assigned to him
from time to time by the Board of Directors of the Company. The Executive will
devote all his full working-time and attention to the performance of such duties
and to the promotion of the business and interests of the Company. This
provision, however, will not prevent the Executive from investing his funds or
assets in any form or manner, or from acting as a member of the board of
directors of any companies, businesses, or charitable organizations, so long as
such actions do not violate the provisions of Section 5 of this Agreement.
1.2 Acceptance of Employment by the Executive. The Executive
accepts such employment and shall render the services described above.
2. Duration of Employment.
This Agreement and the employment relationship hereunder will
continue in effect for one (1) year from the Effective Date (the "Initial
Term"), and the terms of this Agreement shall continue beyond the Initial Term
in the following manner: the Initial Term shall be automatically extended by one
(1) day to always be not less than one (1) year (the "Extended Term"). The
Initial Term and the Extended Term are sometimes referred to in this Agreement
as the "Term." In the event of the Executive's termination of employment during
the Term or Extended Term, the Company's obligation to continue to pay all base
salary, as adjusted less $25,000, bonus and other benefits then accrued shall
terminate except as may be provided for in Section 4 of this Agreement.
Page 2
3. Compensation by the Company.
3.1 Base Salary. As compensation for all services rendered
pursuant to this Agreement, the Company will pay to the Executive an annual base
salary of $445,000 payable in accordance with the payroll practices of the
Company and subject to upward adjustments annually as determined by the
compensation committee of the Board of Directors (the "Committee") of the
Company (or if there is not a compensation Committee, by the board of directors
of the Company) ("Base Salary").
3.2 Bonus. The Executive shall receive an annual bonus subject
to satisfaction of performance targets to be established annually by the
Committee and provided to the Executive in writing in advance of the applicable
year. For calendar year 2002 the Executive shall receive an annual bonus up to
$550,000 subject to satisfaction of the performance targets to be established by
the Committee. Notwithstanding any provision contained herein to the contrary,
the payment of any bonuses pursuant to this Section 3.2 shall be subject to the
determination by the Committee that all conditions contained in this Section 3.2
relating to the bonuses have been met. Any bonus amount due to the Executive
shall be paid by the Company as soon as practical after the Committee has made
its determination.
3.3 Participation in Employee Benefit Plans. The Executive
shall be permitted, during the Term, if and to the extent eligible, to
participate in any group life, hospitalization or disability insurance plan,
health program, pension plan or similar benefit plan of the Company (whether or
not such plans are intended to be qualified under the Internal Revenue Code of
1986, as amended (the "Code")), which may be available to other executives of
the Company generally, on the same terms as such other executives. In addition,
during the Term, the Company shall pay the premiums associated with the whole
life insurance policy maintained by the Executive for the purpose of providing
benefits upon the Executive's death equal to two times Base Salary as adjusted.
3.4 Stock Options. For each of the first three years of the
Term and provided Executive remains employed by the Company, the Executive shall
be eligible to receive at each of Vinci's annual grant dates an option under the
Vinci Stock Option Plan ("the Plan") to purchase 7,000 shares of Vinci stocks
("the Options"). Notwithstanding any provision contained in the plan to the
contrary, each Option shall fully vest and become exercisable in equal
installments on the second, third and fourth anniversaries of the grant date of
such Option provided he remains in employment on such anniversary dates. All
other terms and conditions of the Options shall be governed by the provisions of
the Plan and any stock option agreement thereunder as approved by the Committee.
3.5 Purchase of Stock. Vinci shall do its best efforts to
implement and allocate a portion of the Vinci French Employee Stock Purchase
Plan (plan d'epargne groupe "Castor") to your voluntary subscription starting in
2002. The favorable tax treatment of such a plan for French employees may not
apply to a United States employee.
3.6 Car Allowance. The Executive shall be entitled to a
monthly car allowance equal to $750. The Company shall provide new vehicles of
similar make and model to the Executive not less than every 2 years.
Page 3
3.7 Vacation. The Executive shall be entitled to 20 business
days of paid vacation per year, except that any unused vacation shall be carried
over for one year maximum. In case of termination, the unused carried-over
vacation shall not be paid to the Executive.
3.8 Club Membership. The Company shall pay directly, or
reimburse the Executive, for the annual dues of a country club membership,
selected by the Executive, in the Dallas/Fort Worth area (or such other area in
which the Company relocates), up to a maximum of $5,000 per year.
3.9 Expense Reimbursement. During the Term, the Executive
shall be entitled to receive prompt reimbursement of all reasonable
out-of-pocket expenses properly incurred by him in connection with his duties
under this Agreement, including reasonable expenses of entertainment and travel,
provided that such expenses are properly approved, documented and reported in
accordance with the policies and procedures of the Company (which will be in
accordance with Vinci's policies and procedures) applicable at the time the
expenses are incurred. Notwithstanding any provision contained in Vinci's
policies and procedures to the contrary, however, the Executive may upgrade to
business class, at the Company's full expense, for domestic air travel and the
executive may upgrade to business class, at the Company's full expense, for
international air travel.
4. Termination.
4.1 Termination Upon Death. If the Executive dies during the
Term, the Executive's legal representatives, heirs or trustees shall be entitled
to receive payment of the Executive's Base Salary, as adjusted, accrued bonus,
unpaid vacation days (up to 20 days) and any other earned and vested benefit set
forth in Section 3 hereof for the period ending on the last day of the month in
which the death of the Executive occurs. Notwithstanding any provision contained
in the Plan to the contrary, in the event of the executive's death, all Options
granted under the Plan that have not become fully vested and exercisable prior
to the Executive's death but would vest within one year following the
Executive's death if he remained in employment for such period, shall become
fully vested and exercisable as of the date of death and may be exercised by the
Executive's legal representatives, heirs or trustees for one year after the
Executive's death. Non-vested Options shall be forfeited.
4.2 Termination Upon Disability. If during the Term the
Executive meets the requirements for physical or mental disability under the
Company's long-term disability plan and is eligible to receive benefits
thereunder, the Company may at any time prior to the Executive's recovery but
after the last day of the sixth consecutive month of such disability, by written
notice to the Executive, terminate the Executive's employment hereunder.
Additionally, in such event, the Executive (or his legal
representatives) shall be entitled to receive payment of the Executive's Base
Salary, as adjusted, accrued bonus, unpaid vacation days (up to 20 days) and any
other earned or vested benefits for the period ending on the date such
termination occurred. Notwithstanding any provision contained in the Plan to the
contrary, in the event of the Executive's termination of employment as a result
of a disability, all Options granted under the Plan that have not become fully
vested and exercisable prior to the Executive's termination of employment but
would vest within one year following the Executive's termination of employment
Page 4
if he remained in employment for such period, shall become fully vested and
exercisable as of the date of termination of employment and may be exercised by
the Executive's legal representatives, heirs or trustees for one year after the
Executive's termination of employment. Non-vested Options shall be forfeited.
Nothing in this Section 4.2 shall be deemed to in any way affect the Executive's
right to participate in any disability plan maintained by the Company and for
which the Executive is otherwise eligible.
4.3 Termination for Cause. The Executive's employment
hereunder may be terminated by the Company for "Cause" (as herein defined) at
any time. "Cause" shall mean with respect to the Executive, (a) the Executive's
continued failure to substantially perform the Executive's duties, (b) repeated
acts of insubordination, or failure to execute Company plans and/or strategies,
(c) acts of dishonesty resulting or intending to result in personal gain or
enrichment at the expense of the Company, (d) conviction of or pleading guilty
or no contest to, a felony; (e) reasonable evidence presented in writing to the
Executive that the Executive engaged in a criminal act or willful misconduct
which is materially detrimental to the Company's business, reputation, character
or standing; provided that, in the case of clauses (a) and (b), the Executive
shall be entitled to written notice from the Company and 20 days to cure such
deficiency. Breach of this Agreement and to the extent that an Executive is
subject to a non-competition and confidentiality agreement, breach of such
non-competition and confidentiality agreement, shall constitute Cause under this
Agreement.
Upon termination for Cause hereunder, the Executive shall be
entitled to receive payment of the Executive's Base Salary, as adjusted, other
earned or vested benefits through the date of termination. All Options whether
or not vested shall be forfeited.
4.4 Voluntary Termination. The Executive may upon at least
thirty (30) days' prior written notice to the Company terminate employment
hereunder.
(a) Upon a voluntary termination other than for Good
Reason, the Executive shall be entitled to receive payment of the Executive's
Base Salary, as adjusted, earned or vested benefits set forth in Section 3
hereof through the date of termination. Non-vested Options shall be forfeited.
(b) Upon a voluntary termination for Good Reason, the
Executive shall be entitled to receive, (i) for a period of twelve months of
such termination, payment of his Base Salary, as adjusted, other earned or
vested benefits set forth in Section 3 hereof and accrued vacation days (up to
20 days), (ii) a pro rated bonus to the date of termination and (iii) for the
period of twelve months after such voluntary termination for Good Reason, the
Company shall arrange to provide the Executive with life, disability, accident
and group health insurance benefits substantially similar to those which the
Executive was receiving immediately prior to the notice of termination. Benefits
otherwise receivable by the Executive pursuant to this provision (iii) shall be
reduced to the extent comparable benefits are actually received by the Executive
during the period following the Executive's termination, and any such benefits
actually received by the Executive shall be reported to the Company.
Notwithstanding any provision contained in the Plan to the contrary, in the
event that the Executive terminates his employment with Good Reason, all Options
granted under the Plan that have not become fully vested and exercisable prior
to the Executive's termination but would vest within one year following the
Page 5
Executive's termination if he remained in employment for such period, shall
become fully vested and exercisable as of the date of termination and may be
exercised by the Executive for three months after termination. Non-vested
Options shall be forfeited.
The term "Good Reason" shall mean: 1) a reduction in
Base Salary, as adjusted, or any agreed upon Benefit under this Agreement
without the Executive's consent; provided, that the Company may at any time or
from time to time amend, modify, suspend or terminate any bonus, incentive
compensation or other benefit plan or program provided to the Executive for any
reason and without the Executive's consent if such modification, suspension or
termination is consistent with similarly situated senior executive employees of
the Company; 2) a material change in the Executive's responsibilities, position,
duties, resources, benefits, reporting responsibilities or support personnel
assigned without his prior consent; 3) a change in location of the Company from
the Dallas/Fort Worth, Texas, area other than a change to one of the top ten
domestic markets (by revenues) in which the Company conducts business.
4.5 Termination by the Company Other Than For Cause.
(a) If, prior to the expiration of this Agreement,
the Company terminates the Executive's employment for any reason other than
Cause, the Company shall pay to the Executive (i) for a period of twelve months
of such termination of employment, payment of his Base Salary, as adjusted,
other earned or vested benefits set forth in Section 3 hereof and accrued
vacation days (up to 20 days) and (ii) a pro rated bonus to the date of
termination. Notwithstanding any provision contained in the Plan to the
contrary, in the event that the Executive terminates his employment other than
for Cause, all Options granted under the Plan that have not become fully vested
and exercisable prior to the Executive's termination but would vest within one
year following the Executive's termination if he remained in employment for such
period, shall become fully vested and exercisable as of the date of termination
and may be exercised by the Executive for three months after termination.
Non-vested Options shall be forfeited.
(b) For the period of twelve months after any
termination pursuant to this Section 4.5, the Company shall arrange to provide
the Executive with life, disability, accident and group health insurance
benefits substantially similar to those which the Executive was receiving
immediately prior to the notice of termination. Benefits otherwise receivable by
the Executive pursuant to this paragraph (b) shall be reduced to the extent
comparable benefits are actually received by the Executive during the period
following the Executive's termination, and any such benefits actually received
by the Executive shall be reported to the Company.
(c) The benefits provided in this Section 4.5 shall
be in lieu of any and all benefits payable under any severance benefit plan or
program maintained by the Company.
5. Restrictions and Obligations of the Executive.
5.1 Confidentiality. (a) During the course of the Executive's
employment by the Company, the Executive will have access to certain trade
secrets and confidential information relating to the Company, which is not
readily available from sources outside the Company. The confidential and
proprietary information and, in any material respect, trade secrets of the
Page 6
Company are among its most valuable assets, including but not limited to, its
customer and vendor lists, database, engineering, computer programs, frameworks,
models, its marketing programs, its sales, financial, marketing, training and
technical information, and any other information, whether communicated orally,
electronically, in writing or in other tangible forms concerning how the Company
creates, develops, acquires or maintains its products and marketing plans,
targets its potential customers and operates its retail and other businesses.
The Company invested, and continues to invest, considerable amounts of time and
money in its process, technology, know-how, obtaining and developing the
goodwill of its customers its other external relationships, its data systems and
data bases, and all the information described above (hereinafter collectively
referred to as "Confidential Information"), and any misappropriation or
unauthorized disclosure of Confidential Information in any form would
irreparably harm the Company. The Executive acknowledges that such Confidential
Information constitutes valuable, highly confidential, special and unique
property of the Company. The Executive shall hold in a fiduciary capacity for
the benefit of the Company all Confidential Information relating to the Company
and its business, which shall have been obtained by the Executive during the
Executive's employment by the Company and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). Except as required by law or an order
of a court or governmental agency with jurisdiction, the Executive shall not,
during the period the Executive is employed by the Company or at any time
thereafter, disclose any Confidential Information, directly or indirectly, to
any person or entity for any reason or purpose whatsoever, nor shall the
Executive use it in any way, except as necessary in the course of the
Executive's employment with the Company. The Executive shall take all reasonable
steps to safeguard the Confidential Information and to protect it against
disclosure, misuse, espionage, loss and theft. The Executive understands and
agrees that the Executive shall acquire no rights to any such Confidential
Information.
(b) All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the Business (for the purposes of this
Agreement, "Business" shall be as defined in any non competition and
confidentiality agreement that is established between the Executive and the
Company, as well as all customer lists, specific customer information,
compilations of product research and marketing techniques of the Company,
whether prepared by the Executive or otherwise coming into the Executive's
possession, shall remain the exclusive property of the Company, and the
Executive shall not remove any such items from the premises of the Company,
except in furtherance of the Executive's duties under any employment agreement.
(c) It is understood that while employed by the
Company the Executive will promptly disclose to it, and assign to it the
Executive's interest in any invention, improvement or discovery made or
conceived by the Executive, either alone or jointly with others, which arises
out of the Executive's employment. At the Company's request and expense, the
Executive will assist the Company during the period of the Executive's
employment by the Company and thereafter in connection with any controversy or
legal proceeding relating to such invention, improvement or discovery and in
obtaining domestic and foreign patent or other protection covering the same.
(d) As requested by the Company from time to time and
upon the termination of the Executive's employment with the Company for any
reason, the Executive will promptly deliver to the Company all copies and
Page 7
embodiments, in whatever form, of all Confidential Information in the
Executive's possession or within his control (including, but not limited to,
memoranda, records, notes, plans, photographs, manuals, notebooks,
documentation, program listings, flow charts, magnetic media, disks, diskettes,
tapes and all other materials containing any Confidential Information)
irrespective of the location or form of such material. If requested by the
Company, the Executive will provide the Company with written confirmation that
all such materials have been delivered to the Company as provided herein.
5.2 Non-Solicitation of Hire. During the Term and for a one
year period following the termination of the Executive's employment for any
reason, the Executive shall not, (a) solicit, directly or indirectly, any party
who is a customer of the Company or its subsidiaries, or who was a customer of
the Company or its subsidiaries at any time during the 12 month period
immediately prior to the relevant date, for the purpose of marketing, selling or
providing to any party any services or products offered by or available from the
Company or its subsidiaries and relating to the Business (provided that if the
Executive intends to solicit any such party for any other purpose, it shall
notify the Company of such intention) or (b) employ or solicit, directly or
indirectly, for employment any person who is an employee of the Company or any
of its subsidiaries or who was an employee of the Company or any of its
subsidiaries at any time during the 12 month period immediately prior to any
such solicitation or employment. Notwithstanding the foregoing, if the Executive
is subject to any non-competition and confidentiality agreement that is
established between the Executive and the Company, the provisions of such
agreement shall govern non-solicitation and hiring. Notwithstanding any
provision contained herein to the contrary, the provisions of this Section 5.2
shall not apply in the event of the Executive's termination of employment
without good reason.
5.3 Non-Competition. The Executive shall be bound by the terms
of the non-competition and confidentiality agreement established between the
Executive and the Company, attached hereto as Appendix A.
5.4 Reputation. The Executive agrees not to engage in any act
that is intended, or may reasonably be expected to harm the reputation,
business, prospects or operations of the Company, its officers, directors,
stockholders or employees. The Company further agrees that it will engage in no
act, which is intended, or may reasonably be expected to harm the reputation,
business or prospects of the Executive.
5.5 Property. The Executive acknowledges that all originals
and copies of materials, records and documents generated by him or coming into
his possession during his employment by the Company are the sole property of the
Company ("Company Property"). During the term, and at all times thereafter, the
Executive shall not remove, or cause to be removed, from the premises of the
Company, copies of any record, file, memorandum, document, computer related
information or equipment, or any other item relating to the business of the
Company, or any affiliate, except in furtherance of his duties under the
Agreement. When the Executive terminates his employment with the Company, or
upon request of the Company at any time, the Executive shall promptly deliver to
the Company all copies of Company Property in his possession or control.
Page 8
5.6 Work Product. The Executive agrees that all inventions,
discoveries, systems, interfaces, protocols, concepts, formats, creations,
developments, designs, programs, products, processes, investment strategies,
materials, computer programs or software, data bases, improvements, or other
properties related to the business of the Company or any of its affiliates,
conceived, made or developed during the term of his employment with the Company,
whether conceived by the Executive alone or working with others, and whether
patentable or not (the "Work Product"), shall be owned by and belong exclusively
to the Company. The Executive hereby assigns to the Company his entire rights to
the Work Product and agrees to execute any documents and take any action
reasonably requested by the Company to protect the rights of the Company in any
Work Product. The Executive acknowledges that any copyrightable subject matter
created by the Executive within the scope of his employment, whether containing
or involving Confidential Information or not, is deemed a work-made-for-hire
under Chapter 17 of the United States Code, entitled "Copyrights", as amended,
and the Company shall be deemed the sole author and owner thereof for any
purposes whatsoever. In the event of any unauthorized publication of any
Confidential Information, the Company shall automatically own the copyright in
such publication. Further, the Company shall automatically hold all patents
and/or trademarks, if any, with respect to any Work Product.
5.7 Tax Withholding. The Company or other payor is authorized
to withhold, from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary to satisfy
all obligations for the payment of such withholding taxes.
6. Other Provisions.
6.1 Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, telegraphed, telexed, sent by facsimile transmission or sent by
certified, registered or express mail, postage prepaid, and shall be deemed
given when so delivered personally, telegraphed, telexed, or sent by facsimile
transmission or, if mailed, 4 days after the date of mailing, as follows:
(a) If the Company, to:
[WORLDWIDE FLIGHT SERVICES HOLDINGS, INC.
0000 XXXX XXXXXX XXXXXXXXX
XXXXX 000
XXXXXX, XXXXX 00000
ATTENTION:
TELEPHONE:
FAX:
WITH A COPY TO:
-------------------
Page 9
ATTENTION:
TELEPHONE:
FAX:
(b) If the Executive, to his home address set forth
in the records of the Company.
6.2 Entire Agreement. Except as provided in Sections 3 and 5
hereof, this Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto, including, but not limited to, the
Executive Employment Agreement between the Worldwide Flight Services, Inc. and
the Executive, dated as of June 1, 2000 and the letter addressed to the
Executive from Worldwide Flight Services, Inc. dated August 29, 2001. The terms
of the letter addressed to the Executive from the Company dated August 29, 2001
shall remain in effect.
6.3 Representations and Warranties by Executive. The Executive
represents and warrants that he is not a party to or subject to any restrictive
covenants, legal restrictions or other agreements in favor of any entity or
person which would in any way preclude, inhibit, impair or limit the Executive's
ability to perform his obligations under this Agreement, including, but not
limited to, non-competition agreements, non-solicitation agreements or
confidentiality agreements.
6.4 Waiver and Amendments. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
6.5 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and not to be performed entirely within such state, without
regard to conflicts of laws principles.
6.6 Assignability. This Agreement, and the Executive's rights
and obligations hereunder, may not be assigned by the Executive. The Company may
assign this Agreement and its rights, together with its obligations, to any
other entity that will substantially carry on the business of the Company;
provided, however, that all terms, agreements and provisions of this Agreement
shall remain in effect after such assignment.
6.7 Counterparts. This Agreement may be executed in 2 or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
6.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
Page 10
6.9 Remedies. Specific Performance. The parties hereto hereby
acknowledge that the provisions of Section 5 are reasonable and necessary for
the protection of the Company. In addition, the Executive further acknowledges
that the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company will be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining the
Executive from any actual or threatened breach of such covenants. In addition,
without limiting the Company's remedies for any breach of any restriction on the
Executive set forth in Section 5, except as required by law, the Executive shall
not be entitled to any payments set forth in Section 4 hereof if the Executive
breaches any of the covenants applicable to the Executive contained in Section
5, the Executive will immediately return to the Company any such payments
previously received under Section 4 upon such a breach, and, in the event of
such breach, the Company will have no obligation to pay any of the amounts that
remain payable by the Company under Section 4.
6.10 Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provision, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. The Executive acknowledges that the
restrictive covenants contained in Section 5 are a condition of this Agreement
and are reasonable and valid in geographical and temporal scope and in all other
respects.
6.11 Judicial Modification. If any court or arbitrator
determines that any of the covenants in Section 5, or any part of any of them,
is invalid or unenforceable, the remainder of such covenants and parts thereof
shall not thereby be affected and shall be given full effect, without regard to
the invalid portion. If any court or arbitrator determines that any of such
covenants, or any part thereof, is invalid, or unenforceable because of the
geographic or temporal scope of such provision, such court or arbitrator shall
reduce such scope to the minimum extent necessary to make such covenants valid
and enforceable.
6.12 Attorney Fees. The prevailing party in any litigation
between the Company and the Executive with respect to this Agreement shall be
entitled to an award of the reasonable legal fees and disbursements incurred by
such party with respect to third party claims.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have executed this Agreement as of the day and year first
above mentioned.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxx
Page 11
WORLDWIDE FLIGHT SERVICES HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx-Xxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx-Xxxx
P/O Xxxxxxxx Xxxxxxx
Title: CEO, Vinci Concessions
EXHIBIT A
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
This NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
("Agreement"), dated as of October 6, 2001, is by and between Worldwide Flight
Services, Inc., a Delaware corporation ("WFS"), WFS Holdings, Inc., a Delaware
corporation ("Holdings"), and their subsidiaries, affiliates and assigns
(collectively, the "Company") and Xxxxxxx X. Xxxxxxx ("the Executive").
WHEREAS, WFS is a wholly-owned subsidiary of Holdings;
WHEREAS, for the purposes of this Agreement, the Company
includes the subsidiaries, affiliates, and assigns of Holdings and WFS,
respectively;
WHEREAS, the Executive's position with the Company gives the
Executive access to customers, trade secrets and other proprietary
information regarded by the Company as confidential in that it gives
the Company an advantage over its competitors;
WHEREAS, it is recognized that it may often be difficult to
draw an exact line between proprietary information, which is the
exclusive property of the Company, and the information that is part of
the background of skill and experience normally acquired in the course
of personal business experience, which the Executive is free to use;
and
WHEREAS, the parties hereto wish to set forth guidelines in
the use of proprietary information that the Executive may acquire while
employed by the Company.
IT IS THEREFORE AGREED AS FOLLOWS:
1. Non-Competition.
(a) The Executive covenants and agrees that he will
not Compete (as defined below) with the Company or any of the Company's
affiliates or successors at any time during his employment with the Company and
for one year after his departure from the Company: provided that the Executive
shall be permitted to compete in the event of the Executive's termination of
employment without good reason as defined in the employment agreement.
(b) For the purposes of this Agreement, the term
"Compete" shall mean to directly or indirectly, whether individually, as a
director, stockholder, partner, owner, employee, consultant or agent of any
business, or in any other capacity, other than on behalf of the Company or an
affiliate or successor of the Company, (1) organize, establish, own, operate,
manage, control, engage in, participate in, invest in, permit his name to be
used by, act as a consultant or advisor to, render services for (alone or in
association with any person, firm, corporation or business organization), or
otherwise assist any person or entity that engages in or owns, invests in,
operates, manages or controls any venture or enterprise which directly or
indirectly, exclusively or occasionally, engages or proposes to engage (A) in
providing ground handling services to the aviation industry, which includes
Page 2
cargo services, ramp services, passenger services and technical and industry
services or any other business in which the Company or its subsidiaries may be
engaged or proposing to engage (the "Business") or (B) in providing services
that are similar to, may be used as substitutes for or are in competition with
any of the Businesses, anywhere in the world in which the Company or any of its
subsidiaries engages or proposes to engage in such Business, (2) solicit,
directly or indirectly, any party who is a customer of the Company or its
subsidiaries, or who was a customer of the Company or its subsidiaries at any
time during the twelve month period immediately prior to any such solicitation,
for the purpose of marketing, selling or providing to any party any services or
products offered by or available from the Company or its subsidiaries and
relating to the Business (provided that if the Executive intends to solicit any
such party for any other purpose, he shall notify the Company of such intention)
or (3) employ or solicit, directly or indirectly, for employment any person who
is an employee of the Company or any of its subsidiaries or who was an employee
of the Company or any of its subsidiaries at any time during the twelve month
period immediately prior to any such solicitation or employment.
(c) Except for the Executive's interest and ownership
of stock in SmarteCarte, Inc., nothing in this Agreement shall prevent the
Executive from owning for passive investment purposes not intended to circumvent
this Agreement, less than 5% of the publicly traded equity securities of any
competing enterprise (so long as the Executive has no power to manage, operate,
advise, consult with or control the competing enterprise and no power, alone or
in conjunction with other affiliated parties, to select a director, general
partner, or similar governing official of the competing enterprise other than in
connection with the normal and customary voting powers afforded the Executive in
connection with any permissible equity ownership).
(d) The Executive further acknowledges that the
foregoing restrictions placed upon him are necessary and reasonable in scope and
duration to adequately protect the Company's interests and the goodwill of the
Company, and are a material inducement for the Company to execute, deliver and
perform its obligations arising under or pursuant to the employment agreement
dated as of October 6, 2001 by and between the Company and Executive (the
"Employment Agreement").
2. Confidential Information.
(a) During the course of the Executive's employment
by the Company, the Executive will have access to certain trade secrets and
confidential information relating to the Company that is not readily available
from sources outside the Company. The confidential and proprietary information
and, in any material respect, trade secrets of the Company are among its most
valuable assets, including but not limited to, its customer and vendor lists,
database, engineering, computer programs, frameworks, models, marketing
programs, sales, financial marketing, training and technical information, and
any other information, whether communicated orally, electronically, in writing
or in other tangible forms concerning how the Company creates, develops,
acquires or maintains its products and marketing plans, targets its potential
customers and operates its retail and other businesses. The Company invested,
and continues to invest, considerable amounts of time and money in its process,
technology, know-how, obtaining and developing the goodwill of its customers,
its other external relationships, its data systems and data bases, and all
Page 3
the information described above (hereinafter collectively referred to as
"Confidential Information"), and any misappropriation or unauthorized disclosure
of Confidential Information in any form would irreparably harm the Company. The
Executive acknowledges that such Confidential Information constitutes valuable,
highly confidential, special and unique property of the Company. The Executive
shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information relating to the Company and its business that the
Executive obtains during the Executive's employment by the Company, and which
would not otherwise be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
Except as required by law or an order of a court or governmental agency with
jurisdiction, the Executive shall not disclose any Confidential Information,
directly or indirectly, to any person or entity for any reason or purpose
whatsoever, nor shall the Executive use it in any way, except as necessary in
the course of the Executive's employment with the Company. The Executive shall
take all reasonable steps to safeguard the Confidential Information and to
protect it against disclosure, misuse, espionage, loss and theft. The Executive
understands and agrees that he shall acquire no rights to any such Confidential
Information.
(b) All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the Business, as well as all customer
lists, specific customer information, compilations of product research and
marketing techniques of the Company, whether prepared by the Executive or
otherwise coming into his possession, shall remain the exclusive property of the
Company, and the Executive shall not remove any such items from the premises of
the Company.
(c) It is understood that while employed by the
Company, the Executive has the obligation to promptly disclose and assign to the
Company the Executive's interest in any invention, improvement or discovery made
or conceived by the Executive, either alone or jointly with others, which arises
out of his employment. At the Company's request and expense, the Executive will
assist the Company in connection with any controversy or legal proceeding
relating to any such invention, improvement or discovery and in obtaining
domestic and foreign patent or other protection covering the same.
(d) As requested by the Company from time to time and
upon termination of the Executive's employment for any reason, the Executive
will promptly deliver to the Company all copies and embodiments, in whatever
form, of all Confidential Information in his possession or within his control
(including, but not limited to, memoranda, records, notes, plans, photographs,
manuals, notebooks, documentation, program listings, flow charts, magnetic
media, disks, diskettes, tapes and all other materials containing any
Confidential Information), irrespective of the location or form of such
material. If requested by the Company, the Executive will provide the Company
with written confirmation that all such materials have been delivered to the
Company as provided herein.
3. Remedies: Specific Performance and Judicial Modification.
(a) The parties hereto hereby acknowledge that the
provisions of Sections 1 and 2 hereof are reasonable and necessary for the
protection of the Company. In addition, the Executive further acknowledges that
the Company will be irrevocably damaged if such covenants are not specifically
Page 4
enforced. Accordingly, the Executive agrees that, in addition to any other
relief to which the Company may be entitled, the Company will be entitled to
seek and obtain injunctive relief (without the requirement of any bond) from a
court of competent jurisdiction for the purposes of restraining the Executive
from any actual or threatened breach of such covenants.
(b) If any court or arbitrator determines that any of
the covenants in Sections 1 or 2 hereof, or any part of any of them, is invalid
or unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court or arbitrator determines that any of such
covenants, or any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court or arbitrator shall
reduce such scope to the minimum extent necessary to make such covenants valid
and enforceable.
4. Other Provisions.
(a) Entire Agreement. This Agreement, together with
the Employment Agreement to which it is annexed contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto. In the event of any
inconsistency between this Agreement and the Employment Agreement, this
Agreement shall govern.
(b) Waivers and Amendments. This Agreement or any
part thereof may only be waived, amended, modified, superseded, canceled,
renewed or extended by a written instrument signed by the parties (or, in the
case of a waiver, signed by the party waiving compliance). No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party or any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PRINCIPLE OF CONFLICT-OF-LAWS
THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
(d) Assignment. The Executive may not assign this
Agreement, or any of his rights or obligations herein. The Company may assign
this Agreement and its rights, together with its obligations, to any other
entity that will substantially carry on the business of the Company.
(e) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one of the same instrument and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
Page 5
(f) Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(g) Severability. If any term, provision, covenant or
restriction of this agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(h) Notice. Any notice or other communication
required or which may be given hereunder shall be in writing and shall be
delivered personally, telegraphed, telexed, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid, and shall be
deemed given when so delivered personally, telegraphed, telexed, or sent by
facsimile transmission or, if mailed, four days after the date of mailing, as
follows:
If the Company, to:
[Worldwide Flight Services, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
If the Executive, to his home address set forth in
the records of the Company.
(i) Attorneys Fees. The prevailing party in any
litigation between the Company and the Executive with respect to this Agreement
shall be entitled to an award of the reasonable legal fees and disbursements
incurred by such party.
Page 6
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
/s/ Xxxxxxx X. Xxxxxxx 10/5/2001
--------------------------------- -------------------------------------
XXXXXXX X. XXXXXXX Date signed
AGREED TO AND ACCEPTED ON BEHALF OF THE COMPANY BY:
/s/ Xxxxxxx Xxxxxx-Xxxx 10/5/2001
--------------------------------- -------------------------------------
XXXXXXX XXXXXX-XXXX Date signed
P/O XXXXXXXX XXXXXXX
Worldwide Flight Services, Inc.
