EXHIBIT 10.10
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EMPLOYMENT AND SEVERANCE AGREEMENT
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1.0 Parties and Date
1.1 Parties. The parties to this modified and restated employment agreement
(this "agreement") are Kitty Hawk Cargo, Inc. ("Kitty Hawk"), with its principal
place of business located at 0000 X. 00/xx/ Xxxxxx, P.O. Box 612787, XXX
Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 00000, with a fax number of (000) 000-0000, and
Xxxx X. Xxxxx ("Xxxxx"), who resides at 102 Monday Haus, Xxxxxxxx Xxxxxxx, Xxxxx
00000.
1.2 Date. This agreement is dated and effective October 3, 2002.
2.0 Recitations and Acknowledgments
2.1 Previous Employment Agreements. Xxxxx has been employed by Kitty Hawk
since on or about July 23, 1990 and there is currently no written employment
agreement effective between Xxxxx and Kitty Hawk. This agreement supersedes,
modifies and restates all previous employment agreements between Xxxxx and Kitty
Hawk.
3.0 Terms of Employment
3.1 Responsibilities. Xxxxx will be Vice President and General Manager of
Kitty Hawk, and will be subject to the direction of Xxxxx Xxxx'x Chief Executive
Officer and board of directors, but he will have authority commensurate with his
responsibilities and shall use his full working time and in fulfillment of his
employee and fiduciary duties will commit his productive time and exert his
efforts to the extent normally and generally expected of a full-time vice
president and general manager of a corporation of the size and complexity of
Kitty Hawk in carrying out those responsibilities. Xxxxx is expected to continue
to be involved in all of Xxxxx Xxxx'x business, and to play a major role in the
success of the entire enterprise. Both Xxxxx and Kitty Hawk expect Xxxxx'x
responsibility, authority and compensation to be adjusted from time to time as
determined by Xxxxx Xxxx'x board of directors.
3.2 Annual Compensation. Xxxxx'x basic annual compensation ("basic annual
compensation") shall not be less than $160,000.00, payable in equal semi-monthly
installments. His basic annual compensation may otherwise be adjusted from time
to time, and he may be paid other bonus compensation
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from time to time based upon his performance and the success of the Kitty Hawk
enterprise, all as determined by the board of directors.
3.3 Fringe Benefits. Xxxxx shall receive the employee fringe benefits that
are generally available to all Kitty Hawk employees, and such other fringe
benefits as may be determined from time to time by the board of directors.
3.4 Medical Insurance. During his employment under this agreement and as
provided in P. 3.6B below, Kitty Hawk will provide to Xxxxx at no cost to Xxxxx
medical and hospitalization insurance coverage at least substantially equivalent
to the coverage that is now provided to Xxxxx under Xxxxx Xxxx'x employee
medical plans.
3.5 Proprietary information.
X. Xxxxx shall while in Xxxxx Xxxx'x employ diligently safeguard Xxxxx
Xxxx'x proprietary information; and when leaving Xxxxx Xxxx'x
employment for whatever reason, shall surrender to Kitty Hawk all
written or recorded evidence of Xxxxx Xxxx'x proprietary information,
as well as all Kitty Hawk property, in Xxxxx' actual or constructive
possession.
B. After leaving Xxxxx Xxxx'x employment for whatever reason, Xxxxx shall
never disclose, disseminate or utilize Xxxxx Xxxx'x proprietary
information unless Xxxxx Xxxx'x chief executive officer expressly
authorizes the disclosure, dissemination or utilization in writing.
C. For the purpose of this agreement, the term "proprietary information"
shall specifically not include: (a) information that is now in or
hereafter enters the public domain without a breach of this agreement
by Xxxxx; (b) information Xxxxx knew already prior to the time of his
employment by Kitty Hawk; (c) information that is obtained, after the
date of Xxxxx'x termination, by Xxxxx from any third party that is
lawfully in possession of such information, but only if such
disclosure of information to Xxxxx does not violate any contractual or
legal obligation to Kitty Hawk on the part of such third party or does
not breach a confidential relationship of such third party to Kitty
Hawk; and (d) information required or requested to be disclosed by
court order, subpoena, data request or other legal process or by
applicable regulatory authorities; provided, however, that Xxxxx
provide Kitty Hawk with prompt written notice of any such request or
requirement so that we may seek a protective order or other
appropriate remedy.
3.6 Termination. Both Kitty Hawk and Xxxxx shall have the right to
terminate this employment agreement with or without cause at any time with
30-days' written notice to the other party.
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A. If Xxxxx terminates the agreement without material breach by Kitty
Hawk, Xxxxx shall waive all rights to any compensation under this
agreement that would otherwise have been payable after the
termination. If Xxxxx terminates the agreement without material
breach, Xxxxx agrees to deliver to Kitty Hawk a letter of resignation
related to all positions Xxxxx holds within Kitty Hawk.
B. If Kitty Hawk terminates his employment without material breach by
Xxxxx prior to December 31, 0000, Xxxxx shall be entitled as his
exclusive remedies to (i) such portion of the basic annual
compensation he would have received from the date of termination
through December 31, 2002, payable when it would have been paid in the
absence of such termination, and (ii) the medical insurance benefits
provided under P. 3.4 he would have otherwise received through
December 31, 2002 in the absence of such termination, plus (iii) three
(3) months worth of his basic annual compensation, payable when it
would have been paid in the absence of termination and (iv) the
medical insurance benefits provided under P. 3.4 for a period of three
(3) months after the date of termination. If Kitty Hawk terminates his
employment without material breach by Xxxxx after December 31, 0000,
Xxxxx shall be entitled as his exclusive remedies to (i) three (3)
months worth of his basic annual compensation, payable when it would
have been paid in the absence of termination and (ii) the medical
insurance benefits provided under P. 3.4 for a period of three (3)
months after the date of termination. If Kitty Hawk terminates Xxxxx'
employment for cause, he shall not be entitled to the remedies set
forth in this P. 3.6B. If Kitty Hawk terminates Xxxxx'x employment
without his material breach either before or after December 31, 0000,
Xxxxx agrees to deliver to Kitty Hawk a letter of resignation related
to all positions Xxxxx holds within Kitty Hawk, Aircargo and Cargo.
C. If because of disability Xxxxx becomes unable to perform his duties
under his employment prior to any termination, or if Xxxxx dies during
his employment under this agreement prior to any termination, Xxxxx
shall rely on the proceeds of insurance policies covering his
disability or death as maintained by Kitty Hawk as his sole remedy in
lieu of the compensation set for in P. 3.6B above. If Xxxxx shall
become disabled or shall die after termination and during the time the
severance compensation is being paid, Xxxxx'x estate shall be paid the
compensation as set forth in P. 3.6B above.
4.0 Hiring of Kitty Hawk Employees After Termination. If Xxxxx is terminated
without material breach of this agreement, for a period of three (3) years
after Xxxxx'x termination, Xxxxx agrees that he will not attempt to
knowingly hire, directly or by someone under his direct supervision and
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at his direction, as an employee, independent contractor or otherwise,
any of Xxxxx Xxxx'x officers or key employees, so long as such officer
or key employee was not terminated by Kitty Hawk and such officer or
key employee is still employed by Kitty Hawk.
5.0 RELEASES
A. UPON XXXXX'X TERMINATION, IN CONSIDERATION OF THE SEVERANCE
PROVIDED INP. 3.6B ABOVE AND OTHER GOOD AND VALUABLE CONSIDERATION,
THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, XXXXX SHALL
RELEASE, TO THE GREATEST EXTENT ALLOWABLE BY APPLICABLE LAW, ALL
CLAIMS AGAINST KITTY HAWK, ITS SUBSIDIARIES AND EACH OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, RELATED TO
HIS EMPLOYMENT AND HIS TERMINATION, EXCEPT FOR ANY CLAIM OF WILLFUL
BREACH. SUBJECT TO THE PRECEDING SENTENCE, THIS FULL, FINAL AND
UNCONDITIONAL RELEASE SHALL INCLUDE, BUT IS NOT LIMITED TO, ANY AND
ALL CLAIMS AND CAUSES OF ACTION WHATSOEVER, WHETHER FOUNDED ON
CONTRACT (EXCEPT FOR THIS AGREEMENT), TORT, STATUTE, REGULATION
(FEDERAL, STATE OR LOCAL), COMMON LAW, OR ANY OTHER THEORY OR
GROUNDS, INCLUDING BUT NOT LIMITED TO, ANY ADMINSTRATIVE CLAIMS,
AND CLAIMS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
AMERICANS WITH DISABILITIES ACT, TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964 AND ANY SUBSEQUENT YEARS (INCLUDING, BUT NOT LIMITED TO,
THE CIVIL RIGHTS ACT OF 1991), THE OLDER WORKERS BENEFIT PROTECTION
ACT, THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AND ANY
DISCRIMINATION ON THE BASIS OF NATIONAL ORIGIN, SEX, RACE, AGE,
HANDICAP, OR MARITAL STATUS, BREACH OF CONTRACT, BREACH OF ANY
OTHER EMPLOYMENT AGREEMENT OR CONTRACT, PROMISSORY ESTOPPEL,
HOSTILE WORK ENVIRONMENT, WRONGFUL DISCHARGE, SEXUAL HARASSMENT,
BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING, HARASSMENT AND
OR DISCRIMINATION OF ANY TYPE, INTENTIONAL OR NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS, WRONGFUL TERMINATION, FRAUD,
MISREPRESENTATION, DEFAMATION, INTERFERENCE WITH PROSPECIVE
ECONOMIC ADVANTAGE, FAILURE TO PAY WAGES OR OTHER MONIES OWED.
B. UPON XXXXX'X TERMINATION, KITTY HAWK SHALL RELEASE XXXXX OF ALL
CLAIMS, KNOWN OR UNKNOWN, AGAINST XXXXX IN CONNECTION WITH HIS
OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
EXCEPT
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SUCH RELEASE SHALL NOT APPLY TO CLAIMS THAT ARE THE RESULT OF
XXXXX' WILLFUL MISCONDUCT, INCLUDING BUT NOT LIMITED TO
UNDISCOVERED INTENTIONAL BREACHES OF PROHIBITIONS AGAINST THE
DISCLOSURE OF THE PROPRIETARY INFORMATION OF KITTY HAWK OR
EITHER OF ITS AFFILIATES, OR A COMMITMENT MADE TO BIND KITTY
HAWK OR EITHER OF ITS AFFILIATES WITHOUT APPARENT OR REAL
AUTHORITY. NOTHING HEREIN SHALL BE DEEMED A MODIFICATION OF THE
INDEMNICATION PROVISIONS OF XXXXX XXXX'X CERTIFICATE OF
INCORPORATION, AND IF A CONFLICT ARISES BETWEEN THIS AGREEMENT
AND THE CERTIFICATE OF INCORPORATION, THE CERTIFICATE OF
INCORPORATION SHALL GOVERN.
6.0 General Provisions
6.1 Entire Agreement and Amendments. This agreement is the entire
agreement between Kitty Hawk and Xxxxx with respect to the subject matter set
forth in this agreement and it merges and supersedes all former agreements,
promises or representations, whether oral or written, express or implied, that
relate to Xxxxx'x employment with Kitty Hawk. To amend this agreement, Kitty
Hawk and Xxxxx must sign a written amendment that identifies by paragraph number
the provision that it purports to amend. No noncomplying course of dealing or
waiver shall be construed to amend this agreement.
6.2 Construction. This agreement has been executed and delivered in
Texas, whose substantive law (excluding conflict of laws rules that might apply
the substantive law of another jurisdiction) shall govern its effect and
construction, except that Delaware corporate law shall govern the internal
affairs of Kitty Hawk and other corporate matters where applicable. No rule of
construction resolving ambiguity against a drafting party shall apply. This
agreement binds and benefits the parties and their respective heirs, personal
representatives, successors and assigns. Xxxxx agrees that his obligations under
this agreement to protect Xxxxx Xxxx'x proprietary information are in addition
to Xxxxx'x implied obligations under Texas law, and that all of those
obligations may be enforced by equitable remedies, such as injunction, as well
as by damages resulting from their breach. If any provision of this agreement is
invalid or unenforceable, the remaining provisions shall nevertheless be
enforceable.
6.3 Notices. All notices hereunder must be in writing. Notices may
be given by mail, fax or other delivery to a party at its notice address, which
is that party's address in P. 1.0 unless that party has designated another
notice address by notice hereunder. A notice given by Federal Express or U.S.
Express Mail, fee prepaid, return receipt requested, addressed to the intended
recipient at its notice address, will be deemed given three business days after
deposit with
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Federal Express or the U.S. Postal Service. Any notice given by other means will
be effective only when received by the addressee.
6.4 Breach, Notice and Time to Cure. In the event that either party
breaches this agreement, the non-breaching party shall give the breaching party
written notice of such breach and the breaching party shall have the opportunity
for five (5) business days from the date of receipt of such notice to cure the
breach.
6.5 Binding Agreement to Arbitrate Disputes. Any controversy or
claim arising out of or relating to this agreement, performance under it, or the
arbitrability of any claim between the parties, must be settled exclusively by
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"); except that (i) P. 6.2 must govern applicable law and
construction, (ii) no arbitration demand or action upon a claim arising out of
or relating to this agreement or its performance may be commenced more than two
years after the cause of action accrues, (iii) the locale of any arbitration
must be Dallas, Texas, (iv) the arbitration shall be conducted by a single
arbitrator, which shall be mutually selected by both parties, (v) the language
of the arbitration must be English, (vi) any award must state the arbitrator's
material findings of fact and conclusions of law, (vii) a party may seek
preliminary injunctive or other equitable relief from any court of competent
jurisdiction only to preserve the status quo pending selection of the
arbitrator, (viii) the arbitrator may by interim or final award grant
declarative and injunctive and other equitable relief; and (ix) a prevailing
party in litigation to require arbitration or to obtain preliminary relief
pending selection of an arbitrator, in arbitration, or in litigation to confirm
or enforce an arbitration award will be entitled to recover its reasonable
attorneys' fees and costs. Any suit to require arbitration under this agreement,
or to enforce judgment upon an arbitration award, may be brought in any court of
competent jurisdiction.
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
KITTY HAWK CARGO, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.,
President and Chief Executive Officer
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