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EXHIBIT 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of December 2, 1999 between
Worldwide Flight Services, Inc., a Delaware corporation, together with its
subsidiaries (the "Company") and Xxxx Xxxxxxxx (the "Executive").
WHEREAS, the parties wish to establish the terms of Executive's future
employment with the Company.
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 first day he reports to work at the Company as
agreed upon by the Company and the Executive (the "Effective Date") (which date
shall not be later than December 6, 1999) to render exclusive and full-time
services to the Company. The Executive will serve in the capacity of Senior Vice
President, Sales and Marketing of the Company and shall report to the President
and Chief Operating Officer 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,
including, but not limited to, the responsibilities outlined in the "Position
and Candidate Specifications" attached hereto. The Executive will perform such
other duties as may be assigned to him from time to time by the President and
Chief Operating Officer, the Chief Executive Officer or 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 Location. The Executive's principal place of
employment shall be the Company's headquarters located in the Dallas/Fort Worth,
Texas area, subject to any travel required in connection with providing services
under this Agreement.
1.3 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 three (3) years from the Effective Date (the "Term"). At
a time at least nine (9) months prior to the expiration of the Term, the Company
and the Executive shall discuss whether the Agreement should be renewed upon
mutual written agreement. In the event of the Executive's termination of
employment during the Term, the Company's obligation to continue to
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pay all base salary, bonus and other benefits then accrued shall terminate
except as may be provided for in Section 4 of this Agreement.
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 One Hundred Seventy-Five Thousand Dollars ($175,000),
subject to an upward adjustment by the Board of Directors of the Company, in its
sole discretion, and payable in accordance with the payroll practices of the
Company ("Base Salary").
3.2 Bonuses. The Executive shall be entitled to receive
from the Company an annual cash bonus in an amount determined by the
Compensation Committee of the Board of Directors of the Company, up to a maximum
amount of fifty percent (50%) of Base Salary.
3.3 Signing Bonus. The Company shall pay to the Executive
a one-time bonus of Forty Thousand Dollars ($40,000) as follows: (i) Twenty
Thousand Dollars ($20,000) on the Effective Date and (ii) Twenty Thousand
Dollars ($20,000) on the three month anniversary of the Effective Date, with
respect to the foregone value of unpaid retention bonuses payable by Sea-Land.
3.4 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, which may
be available to other executives of the Company generally, on the same terms as
such other executives.
3.5 Stock Options. Over a period of time of not less than
three (3) years and provided the Executive remains employed by the Company, the
Executive shall be granted options under the WFS Holdings, Inc. 1999 Stock
Option Plan (the "Stock Option Plan") for the purchase of up to 5,000 shares of
non-voting common stock of WFS Holdings, Inc. ("Holdings"). All terms and
conditions applicable to such stock options shall be governed by the provisions
of the Stock Option Plan and any stock option agreements thereunder, as approved
by the Compensation Committee of the Board of Directors of Holdings.
3.6 Purchase of Stock. For a period of one (1) month from
the Effective Date, the Executive shall be provided with the opportunity to
purchase additional equity in Holdings in the form of units ("Units"), up to a
number of Units as agreed with the Compensation Committee of the Board of
Directors of Holdings. Each Unit shall consist of one share of voting common
stock of Holdings, priced at $3.25, and 2.5 shares of preferred stock of
Holdings, priced at $10.00 per share, yielding a Unit price of $28.25. The
purchase of the Units shall be subject to the Management Subscription Agreement
and the Stock Buy Back Agreement between Holdings and the Executive. The Company
and Executive may agree to have the Company finance, with full recourse, up to
fifty percent (50%) of the purchase price of such Units.
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3.7 Car Allowance. The Executive shall be entitled to a
monthly car allowance equal to Four Hundred Dollars ($400).
3.8 Club Membership. The Company shall pay the cost of a
corporate membership for the use of the Executive for a Dallas/Fort Worth, Texas
area club membership, up to a maximum one time initiation fee of Twenty-Five
Thousand Dollars ($25,000) and pay the ongoing annual dues of such club, during
the Term, up to a maximum of Two Thousand Five Hundred Dollars ($2,500) per
annum.
3.9 Vacation. The Executive shall be entitled to twenty
(20) days of vacation per year.
3.10 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 applicable at the
time the expenses are incurred.
3.11 Relocation Package. The Company shall offer to the
Executive a comprehensive relocation package designed to cover or reimburse the
Executive for all reasonable expenses associated with the Executive's move from
Atlanta, Georgia to the Dallas/Fort Worth, Texas area in accordance with the
provisions of the Sea-Land relocation policy attached hereto.
4. Termination.
4.1 Termination Upon Death. If the Executive dies during
the Term, the Executive's legal representatives shall be entitled to receive the
Executive's Base Salary and accrued bonus for the period ending on the last day
of the month in which the death of the Executive occurs.
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 the Executive's Base Salary and
accrued bonus for the period ending on the date such termination occurred.
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
willful and continued failure to substantially
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perform the Executive's duties, (b) repeated acts of insubordination, or willful
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, all as determined by the Board of Directors of the Company in its
reasonable judgment; (e) reasonable evidence presented in writing to the
Executive that the Executive engaged in a criminal act involving moral turpitude
or willful misconduct or (f) conduct not conforming to standards of good
citizenship or good moral character, or which is potentially 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 twenty (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 the Executive's Base Salary through the date of termination.
4.4 Voluntary Termination. The Executive may upon at
least ninety (90) days prior written notice to the Company terminate employment
hereunder. Upon a voluntary termination the Executive shall be entitled to
receive the Executive's Base Salary through the date of termination.
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, in lieu of additional salary payments to the Executive for
periods subsequent to the date of such termination, the Company shall pay to the
Executive his Base Salary for the remaining duration of the Term.
(b) For the length of the period for which
severance benefits are provided 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) Nothing contained in this Section 4.5 shall
prevent the Executive from receiving any and all benefits payable under any
severance benefit plan or program maintained by the Company to which the
Executive is entitled.
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
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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, 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 may be established between the Executive and the
Company and/or Holdings), 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.
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(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
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 or Hire. During the Term and for a
three (3) 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 twelve (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 twelve (12) month period
immediately prior to any such solicitation or employment.
5.3 Non-Competition. The Executive shall be bound by the
terms of any non-competition and confidentiality agreement that may be
established between the Executive and the Company and/or Holdings.
5.4 The Executive agrees not to engage in any act that is
intended, or may reasonably by 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.
5.6 Work Product. The Executive agrees that all
inventions, discoveries, systems, interfaces, protocols, concepts, formats,
creations, developments, designs,
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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 in
the opinion of the Board of Directors of the Company 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, four (4) days after the date of mailing, as follows:
(a) If the Company, to:
Worldwide Flight Services, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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With a copy to:
WFS Holdings, Inc.
c/o Xxxxxx Xxxxxx Partners III, L.P.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
And a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(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 3.5, 3.6 and 5.3 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.
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.
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
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Agreement and its rights, together with its obligations, to any other entity
which will substantially carry on the business of the Company.
6.7 Counterparts. This Agreement may be executed
in two (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.
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 4.5 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, provisions, 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.
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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/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President and Chief Operating Officer
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