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EXHIBIT 10.2
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 1st day of January, 2001, by and between XXXXX X. XXXXXXXXXXX, XX., an
individual resident of the State of Georgia ("Employee"), and AHL SERVICES,
INC., a Georgia corporation ("the "Employer").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee, and Employee desires to
be employed by Employer, on the terms and conditions hereinafter set forth,
effective as of January 1, 2001 (the "Effective Date");
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1 Employment.
Subject to the terms hereof, the Employer hereby employs
Employee, and Employee hereby accepts such employment. Employee will serve as
Vice Chairman of the Board of Directors of Employer or in such other executive
capacity as the Board of Directors of Employer (the "Board of Directors") may
hereafter from time to time determine. Employee agrees to devote his full
business time and best efforts to the performance of the duties that Employer
may assign Employee from time to time.
Section 2 Term of Employment.
The term of Employee's employment hereunder (the "Term") shall
be from the Effective Date until the earlier of (a) December 31, 2003 or (b) the
occurrence of any of the following events:
(i) The death or total disability of Employee (total disability
meaning the failure to fully perform his normal required
services hereunder for a period of three (3) months during any
consecutive twelve (12) month period during the term hereof,
as determined by the Board of Directors, by reason of mental
or physical disability);
(ii) The termination by Employer of Employee's employment
hereunder, upon prior written notice to Employee, for "good
cause", as determined by the Board of Directors. For purposes
of this Agreement, "good cause" for termination of Employee's
employment shall exist (A) if Employee is convicted of, pleads
guilty to, or confesses to any felony or any act of fraud,
misappropriation or
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embezzlement, (B) if Employee has engaged in a dishonest act
to the damage or prejudice of Employer or an affiliate of
Employer, or in conduct or activities materially damaging to
the property, business, or reputation of Employer or an
affiliate of Employer, (C) if Employee fails to comply with
the terms of this Agreement, and, within thirty (30) days
after written notice from Employer of such failure, Employee
has not corrected such failure or, having once received such
notice of failure and having so corrected such failure,
Employee at any time thereafter again so fails, or (D) if
Employee violates any of the provisions contained in Sections
5 of this Agreement; or
(iii) The termination of this Agreement by either party upon at
least ninety (90) days prior written notice.
Section 3 Compensation.
3.1 Term of Employment. Except as otherwise provided in
Section 3.2, Employer will provide Employee with the following salary, expense
reimbursement and additional employee benefits during the term of employment
hereunder:
(a) Salary. Employee will be paid a salary (the
"Salary") of no less than Three Hundred
Fifty Thousand Dollars ($350,000) per annum,
less deductions and withholdings required by
applicable law. The Salary shall be paid to
Employee in equal monthly installments (or
on such more frequent basis as other
executives of Employer are compensated). The
Salary shall be reviewed by the Board of
Directors of Employer on at least an annual
basis.
(b) Bonus. Employee will be entitled to an
annual bonus (the "Bonus") of up to 50% of
Salary, which Bonus shall be dependent upon
Employer's financial performance versus
budget and achievement of personal
objectives established for Employee by
Employer. The Bonus shall be paid promptly
upon the availability of annual financial
results (which is expected to occur in early
February of each year).
(c) Car Allowance. Employee shall receive a car
allowance of one Thousand Two Hundred
Dollars ($1,200) per month.
(d) Expenses. Employer shall reimburse Employee
for all reasonable and necessary expenses
incurred by Employee at the request of and
on behalf of Employer.
(e) Benefit Plans. Employee may participate in
such medical, dental, disability,
hospitalization, life insurance and other
benefit plans (such as pension and profit
sharing plans) as Employer maintains from
time to time for the benefit of other senior
executives of
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Employer, on the terms and subject to the
conditions set forth in such plans.
3.2 Secondment to Securicor. Employee will be seconded to
Securicor Security Systems Limited or an affiliate thereof ("Securicor") to act
as an executive in Securicor's aviation services group. The secondment shall be
for a term not to exceed eighteen months from the commencement of such
secondment. During the term of secondment: (a) Employee's Salary pursuant to
Section 3.1(a) will be reduced by any salary paid to Employee by Securicor; (b)
Employee will not be entitled to earn a Bonus pursuant to Section 3.1(b); (c)
Employee's car allowance pursuant to Section 3.1(c) will be reduced by any car
allowance paid to Employee by Securicor; (d) any expenses described in Section
3.1(d) reimbursed by Securicor will not be separately reimbursed by Employer;
and (e) Employer shall not be entitled to terminate Employee's employment
pursuant to Section 2(b)(iii) hereof. Employee shall promptly notify Employer of
any payment of Salary, or car allowance described above that Employee receives
from Securicor. During the term of secondment, Employee shall be deemed to be
employed by Employer for all purposes relating to length of employment
including, but not limited to, vesting of stock options and eligibility under
benefit plans.
3.3 Effect of Termination. Except as hereinafter
provided, upon the termination of the employment of Employee hereunder for any
reason, Employee shall be entitled to all compensation and benefits earned or
accrued under Section 3.1 as of the effective date of termination (the
"Termination Date"), but from and after the Termination Date no additional
compensation or benefits shall be earned by Employee hereunder. Employee shall
be deemed to have earned any Bonus payable with respect to the calendar year in
which the Termination Date occurs on a prorated basis (based on the number of
days in such calendar year through and including the Termination Date divided by
365). Any such Bonus shall be payable on the date on which the Bonus would have
been paid had Employee continued his employment hereunder.
If Employee's employment hereunder is terminated by Employer
pursuant to Section 2(b)(iii) hereof, then, in addition to any other amount
payable hereunder, Employer shall continue to pay Employee his normal Salary
pursuant to Section 3.1(a), Employee shall be entitled to receive his normal car
allowance pursuant to Section 3.1 (c) and Employee shall continue to participate
in benefit plans pursuant to Section 3.1 (e) through December 31, 2003 (on the
same basis as if Employee continued to serve as an employee hereunder for such
period).
All stock options granted to Employee pursuant to Section 4
hereof shall be governed in accordance with Section 4.2 hereof upon termination
of Employee's employment.
3.4 Change of Control. Upon a Change of Control (as
defined herein), Employee shall be entitled to receive a lump-sum payment,
within thirty (30) days of such Change of Control, of two (2) times Employee's
then current Salary. A "Change of Control" shall be deemed to have occurred if
(a) any person or any two or more persons acting as a group (exclusive of
Employee), and all affiliates of such person or persons (a "Group"), who prior
to such time owned less than 50% of the then outstanding shares of capital stock
of Employer, shall acquire shares of capital stock of Employer in one or more
transactions or series of transactions,
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and after such transaction or transactions such person or group and affiliates
beneficially own 50% or more of Employer's shares of capital stock, (b) Employer
shall sell all or substantially all of its assets to any Group which,
immediately prior to the time if such transaction, owned less than 50% of the
shares of capital stock of Employer, or (c) Employer shall merge with or
consolidate into any Group which, immediately prior to the time of such
transaction, owned less than 50% of the shares of capital stock of Employer, and
shall not be the surviving entity of such merger or consolidation. The amount
payable pursuant to this provision is in addition to, and not in lieu of, any
obligations of the Employer pursuant to that certain letter agreement between
Employer and Employee, dated December 28, 2000, relating to Securicor.
Section 4 Stock Options.
4.1 Grant of Stock Options. In recognition of Employee's
contributions to Employer to date, Employee has been granted stock options as
follows:
NUMBER OF
EXERCISE SHARES VESTED AT DATE ON WHICH
NUMBER OF PRICE DECEMBER 15, SHARES ARE FULLY
DATE OF GRANT SHARES PER SHARE EXPIRATION DATE 2000 VESTED
October 31, 1997 150,000 17.875 October 31, 2007 112,500 October 31, 2001
October 9, 1998 50,000 21.75 October 9, 2008 25,000 October 9, 2002
May 14, 1999 75,000 25.375 May 14, 2009 18,750 May 14, 2003
October 28, 1999 25,000 20.6875 October 28, 2009 6,250 October 28, 2003
The number of shares of common stock issuable upon exercise of
options granted to Employee by Employer and the exercise price of such options
shall be automatically adjusted to reflect any change in the capitalization of
Employer, including, but not limited to, such changes as stock dividends, stock
splits or recapitalizations. If any adjustment under this Section would create
the right of Employee to acquire a fractional share of stock, such fractional
share shall be disregarded and the number of shares of common stock subject to
the options shall be the next lower number of whole shares of common stock,
rounding all fractions downward.
4.2 Termination of Employment. The grant of stock options
to Employee by Employer shall not restrict or in any manner affect Employer's
right to terminate the employment of Employee at any time, with or without
cause, as herein provided.
(a) In the case of a termination pursuant to
Section 2(b)(i), the options granted to
Employee by Employer prior to such
termination shall immediately become
exercisable on such termination. The options
will expire in accordance with their
respective scheduled expiration dates.
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(b) Upon the death of Employee, any options
which Employee would otherwise be entitled
to exercise may be exercised by his personal
representatives or heirs, as applicable.
(c) If Employee's employment is terminated by
Employer pursuant to Section 2(b)(iii), the
options granted to Employee by Employer
prior to such termination shall vest in
accordance with their respective scheduled
vesting dates through December 31, 2003, and
options that have not vested as of such date
shall expire. The options shall be
exercisable for a period ending the later of
(1) December 31, 2003 or (2) one year after
such termination, and, after such later
date, all unexercised options will expire.
(d) If Employee's employment is terminated by
Employer pursuant to Section 2(b)(ii) or by
Employee pursuant to Section 2(b)(iii), the
options which are exercisable as of the date
of termination shall be exercisable for a
period of one year after such termination.
After such one year period, all unexercised
options will expire.
4.3 Exercise. The options granted by Employer to Employee
may be exercised by Employee upon five business days' written notice of exercise
to Employer, specifying the number of shares to be purchased and the total
purchase price, accompanied by a check to the order of Employer, in the payment
of such price. The exercise price of such options shall be payable in cash only.
If Employer is required to withhold on account of any present or future tax
imposed as result of any option exercise, the notice of exercise shall be
accompanied by a check to the order of Employer for payment of the amount of
such withholding. Employee agrees to enter into any appropriate agreement or
deliver any appropriate certificate or other such document that Employer may
reasonably request in connection with the exercise of any options to ensure that
the exercise complies with all applicable securities laws.
4.4 Nontransferable. No option granted by Employer to
Employee shall be transferable by Employee other than by will or by the laws of
descent and distribution, and such options shall be exercisable during
Employee's lifetime only by Employee. The options shall not be otherwise
transferred, assigned, pledged, hypothecated or disposed of in any way, whether
by operation of law or otherwise.
4.5 Non-Incentive Options. The options granted by
Employer to Employee are not intended to be, and shall not be treated as,
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended.
Section 5 Partial Restraint on Post-termination
Competition.
5.1 Definitions. For the purposes of this Section 5, the
following definitions shall apply:
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(a) "Company Activities" means the business of
providing security services, including,
without limitation, contractual security
services, investigative services, polygraph
services and pre-employment testing and/or
screening or providing transportation,
including but not limited to guided bus
tours, but excluding transportation or
ground handling relating to aviation
services.
(b) "Competitor" means any business, individual,
partnership, joint venture, association,
firm, corporation or other entity, other
than the Employer or its affiliates or
subsidiaries, engaged, wholly or partly, in
Company Activities.
(c) "Competitive Position" means (i) the direct
or indirect ownership or control of all or
any portion of a Competitor; or (ii) any
employment or independent contractor
arrangement with any Competitor whereby
Employee will serve such Competitor in any
managerial capacity.
(d) "Confidential Information" means any
confidential, proprietary business
information or data belonging to or
pertaining to Employer that does not
constitute a "Trade Secret" (as hereinafter
defined) and that is not generally known by
or available through legal means to the
public, including, but not limited to,
information regarding Employer's customers
or actively sought prospective customers,
suppliers, manufacturers and distributors
gained by Employee as a result of his
employment with Employer.
(e) "Customer" means actual customers or
actively sought prospective customers of
Employer during the Term.
(f) "Noncompete Period" or "Nonsolicitation
Period" means the period beginning the
Effective Date and ending on the second
anniversary of the termination of Employee's
employment with Employer.
(g) "Territory" means the United States of
America and Europe.
(h) "Trade Secrets" means information or data of
or about Employer, including but not limited
to technical or non-technical data,
formulas, patterns, compilations, programs,
devices, methods, techniques, drawings,
processes, financial data, financial plans,
products plans, or lists of actual or
potential customers, clients, distributees
or licensees, information concerning
Employer's finances, services, staff,
contemplated acquisitions, marketing
investigations and surveys, that (i) derive
economic value, actual
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or potential, from not being generally known
to, and not being readily ascertainable by
proper means by, other persons who can
obtain economic value from their disclosure
or use; and (ii) are the subject of efforts
that are reasonable under the circumstances
to maintain their secrecy.
(i) "Work Product" means any and all work
product, property, data documentation or
information of any kind, prepared,
conceived, discovered, developed or created
by Employee for Employer or its affiliates,
or any of Employer's or its affiliates'
clients or customers.
5.2 Trade Name and Confidential Information.
(a) Employee hereby agrees that (i) with regard
to each item constituting all or any portion
of the Trade Secrets, at all times during
the Term and all times during which such
item continues to constitute a Trade Secret
under applicable law; and (ii) with regard
to any Confidential Information, during the
Term and the Noncompete Period:
(i) Employee shall not, directly or by
assisting others, own, manage,
operate, join, control or
participate in the ownership,
management, operation or control
of, or be connected in any manner
with, any business conducted under
any corporate or trade name of
Employer or name similar thereto,
without the prior written consent
of Employer;
(ii) Employee shall hold in confidence
all Trade Secrets and all
Confidential Information and will
not, either directly or indirectly,
use, sell, lend, lease, distribute,
license, give, transfer, assign,
show, disclose, disseminate,
reproduce, copy, appropriate or
otherwise communicate any Trade
Secrets or Confidential
Information, without the prior
written consent of Employer; and
(iii) Employee shall immediately notify
Employer of any unauthorized
disclosure or use of any Trade
Secrets or Confidential Information
of which Employee becomes aware.
Employee shall assist Employer, to
the extent necessary, in the
procurement or any protection of
Employer's rights to or in any of
the Trade Secrets or Confidential
Information.
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(b) Upon the request of Employer and, in any
event, upon the termination of Employee's
employment with Employer, Employee shall
deliver to Employer all memoranda, notes,
records, manuals and other documents,
including all copies of such materials and
all documentation prepared or produced in
connection therewith, pertaining to the
performance of Employee's services hereunder
or Employer's business or containing Trade
Secrets or Confidential Information, whether
made or compiled by Employee or furnished to
Employee from another source by virtue of
Employee's employment with Employer.
(c) To the greatest extent possible, all Work
Product shall be deemed to be "work made for
hire" (as defined in the Copyright Act, 17
U.S.C.A. xx.xx. 101 et seq., as amended) and
owned exclusively by Employer. Employee
hereby unconditionally and irrevocably
transfers and assigns to Employer all
rights, title and interest Employee may have
in or to any and all Work Product,
including, without limitation, all patents,
copyrights, trademarks, service marks and
other intellectual property rights. Employee
agrees to execute and deliver to Employer
any transfers, assignments, documents or
other instruments which Employer may deem
necessary or appropriate to vest complete
title and ownership of any and all Work
Product, and all rights therein, exclusively
in Employer.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Employee
is conducting Company Activities throughout
the Territory. Employee acknowledges that to
protect adequately the interest of Employer
in the business of Employer it is essential
that any noncompete covenant with respect
thereto cover all Company Activities and the
entire Territory.
(b) Employee hereby agrees that, during the Term
and the Noncompete Period, Employee will
not, in the Territory, either directly or
indirectly, alone or in conjunction with any
other party, accept, enter into or take any
action in conjunction with or in furtherance
of a Competitive Position. Employee shall
notify Employer promptly in writing if
Employee receives an offer of a Competitive
Position during the Noncompete Term, and
such notice shall describe all material
terms of such offer.
Nothing contained in this Section 5 shall prohibit Employee
from acquiring not more than five percent (5%) of any company whose common stock
is publicly traded on a national securities exchange or in the over-the-counter
market.
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5.4 Nonsolicitation During Employment Term. Employee
hereby agrees that Employee will not, during the Term, either directly or
indirectly, alone or in conjunction with any other party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products competitive with
those offered by Employer during the Term;
or
(b) solicit or attempt to solicit any employee,
consultant, contractor or other personnel of
Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen
that party's affiliation with Employer or
such affiliate or subsidiary or to violate
the terms of any agreement or understanding
between such employee, consultant,
contractor or other person and Employer.
5.5 Nonsolicitation During Nonsolicitation Period.
Employee hereby agrees that Employee will not, during the Nonsolicitation
Period, either directly or indirectly, alone or in conjunction with any other
party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products competitive with
those offered by Employer during the Term;
provided, however, that the covenant in this
clause shall limit Employee's conduct only
with respect to those Customers with whom
Employee had substantial contact (through
direct or supervisory interaction with the
Customer or the Customer's account) during a
period of time up to but no greater than two
(2) years prior to the last day of the Term;
or
(b) solicit or attempt to solicit any "key"
employee, consultant, contractor or other
personnel of Employer or any of its
affiliates or subsidiaries residing at the
time of the solicitation in the Territory to
terminate, alter or lessen that party's
affiliation with Employer or such affiliate
or subsidiary or to violate the terms of any
agreement or understanding between such
employee, consultant, contractor or other
person and Employer. For purposes of this
clause (b), "key" employees, consultants,
contractors, or other personnel are those
with knowledge of or access to Trade Secrets
and Confidential Information.
5.6 Exemption for Provision of Services to Securicor.
Employer hereby agrees that Employee's secondment to Securicor and the actions
performed by Employee within
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the reasonable scope of such secondment shall be exempt from the covenants and
agreements contained in this Section 5.
Section 6 Miscellaneous.
6.1 Severability. The covenants in this Agreement shall
be construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and Employer. Any claim that Employee
may have against Employer shall not constitute a defense to enforcement by
Employer of this Agreement.
6.2 Survival of Obligations. The covenants in Section 5
of this Agreement shall survive termination of Employee's employment, regardless
of who causes the termination and under what circumstances.
6.3 Notices. Any notice or other document to be given
hereunder by any party hereto to any other party hereto shall be in writing and
delivered in person or by courier, by telecopy transmission or sent by any
express mail service, postage or fees prepaid at the following addresses:
Employer
AHL Services, Inc.
Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Suite 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
Employee
Xx. Xxxxx X. Xxxxxxxxxxx, Xx.
c/o AHL Services, Inc.
Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Xxxxx 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 Binding Effect. This Agreement inures to the benefit
of, and is binding upon, Employer and their respective successors and assigns,
and Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
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6.5 Entire Agreement This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement supersedes and terminates all prior
employment and compensation agreements, arrangements and understandings between
or among Employer and Employee. This Agreement may be modified only by a written
instrument signed by all of the parties hereto.
6.6 Governing Law. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed, and governed by
and in accordance with, the laws of the State of Georgia. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
6.7 Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
6.8 Specific Performance. Each party hereto hereby agrees
that any remedy at law for any breach of the provisions contained in this
Agreement shall be inadequate and that the other parties hereto shall be
entitled to specific performance and any other appropriate injunctive relief in
addition to any other remedy such party might have under this Agreement or at
law or in equity.
6.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AHL SERVICES, INC.
By:
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Xxxxx X. Xxxxxxx
Chief Executive Officer
EMPLOYEE
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Xxxxx X. Xxxxxxxxxxx, Xx.
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