EXHIBIT 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of January 15, 2002 between
Worldwide Flight Services, Inc., a Delaware corporation, together with its
subsidiaries (the "Company") and Xxxxxxxx X. Xxxx (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 she 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 January 21, 2002 to render exclusive and full-time services to the
Company. The Executive will serve in the capacity of Senior Vice President,
General Counsel and Secretary of the Company and shall report to the President
and Chief Operating Officer . 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 her 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 her 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 her 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 two (2) years from the Effective Date (the "Initial Term"). The
terms of this Agreement shall continue beyond the Initial Term in the following
manner: starting with the day immediately after the first anniversary of the
Effective Date and on each calendar day thereafter, the Term shall be
automatically extended by one (1) day to always be not less than one (1) year
("the Extended Term") unless either party gives the other party written notice
at least three (3) months prior to the expiration of the Initial Term or the
date beyond which such Agreement shall not be extended. Any extensions
thereafter shall require a written contract or written amendment hereto. The
Initial Term and any
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, the
Company's obligation to continue to 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
$250,000, payable in accordance with the payroll practices of the Company and
subject to upward adjustments as determined by the Executive Compensation
Committee (the "Committee") of the Company, consistent with WFS policy ("Base
Salary").
3.2. Bonus. The Executive shall receive an annual bonus of up to 40% of
base salary based on performance targets as described in Appendix 2 and provided
to the Executive in advance of the applicable year. Notwithstanding any
provision contained herein to the contrary, the payment of any bonuses pursuant
to the Section 3.2 shall be subject to the approval of the Committee of the
Company, including, but not limited to, the determination that all conditions
contained in this Section 3.2 relating 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 Signing Bonus. The Company shall pay to the Executive a onetime
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 six month anniversary of the Effective Date.
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.
3.6 Car Allowance. The Executive shall be entitled to a monthly car
allowance equal to four hundred Dollars ($400) and an additional monthly
allowance of two hundred fifty Dollars ($250) for the next two years.
3.7 Vacation. The Executive shall be entitled to twenty (20) days of
vacation 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 her in connection with her duties under this
Agreement, including reasonable expenses of entertainment and travel, and
including monthly membership fees to a private club of her choice not to exceed
$200 per month in monthly membership fees 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.
4. Termination.
4.1 Termination Upon Death. If the Executive dies during the Term, the
Executive's legal representatives shall be entitled to receive payment of the
Executive's Base Salary, as adjusted, accrued bonus, unpaid vacation days and
any other earned or 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.
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 her legal
representatives) shall be entitled to receive payment of the Executive's Base
salary, as adjusted, and accrued bonus, unpaid vacation days and any other
earned or vested benefit set forth in Section 3 hereof 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 perform the Executive's duties, (b) willful
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 to a felony, not including any vehicular driving offenses or (e)
willfully engaging in a criminal act or willful misconduct which is materially
detrimental to the Company's business, reputation, character or standing;
providing 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. 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 the Agreement.
Upon termination for Cause hereunder, the Executive shall be entitled
to receive the Executive's Base Salary, as adjusted, other earned or vested
benefits set forth in Section 3 hereof and a pro rated bonus through the date of
termination.
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 and a pro
rated bonus through the date of termination.
(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 her Base Salary, as adjusted, other earned or vested
benefits set forth in Section 3 hereof and accrued vacation 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 reduce 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.
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; provide, that the Company many 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 with
out 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 her prior consent; or (3) a change in location of the Executive's
principal place of employment from the Dallas/Fort Worth, Texas area.
4.5 Termination by the Company Other Than For Cause.
(a) The Company may upon at least ninety (90) days prior written
notice to the Executive termination the Executive's employment hereunder for a
reason other than for Cause. If, prior to the expiration of the 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 after
such termination of employment, payment of her Base Salary, as adjusted other
earned or vested benefits set forth in Section 3 here of and accrued vacation
days and (ii) a pro rated bonus to the date of termination.
(b) For the length of 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) 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 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 noncompetition 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.
(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 her 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. 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.
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 Reputation. 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 her or coming into her
possession during her employment by the Company are the sole property of the
Company ("Company Property"). During the Term, and at all times there after, 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 her duties under the
Agreement. When the Executive terminates her 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 her possession or control.
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 her employment with the Company,
whether conceived by the Executive alone or working with others, and whether
patentable or not (the "1Work Product"1), shall be owned by and belong
exclusively to the Company. The Executive hereby assigns to the Company her
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 her 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,"t 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-Xxxxxxxx Gouedard
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Worldwide Flight Services, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) If the Executive, to her 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 Worldwide Flight Services, Inc. and the Executive, dated as of
January 21, 2002.
6.3 Representations and Warranties by Executive. The Executive
represents and warrants that she 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 her 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 farther 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 Texas 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 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.
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 Tax Gross-Up. In the event that any payment made to the Executive
pursuant to this Agreement with the Company becomes subject to excise taxes
under Section 4999 of the Code, the Company will pay to the Executive the amount
of such excise taxes plus all federal, state and local taxes applicable to the
Company's payment of such excise taxes including any additional excise taxes
under Section 4999 of the Code with respect to payments made pursuant to this
Agreement.
6.11 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.
6.12 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.
6.13 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/ XXXXXXXX X. XXXX
---------------------------------------
Xxxxxxxx X. Xxxx
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ XXXX-XXXXXXXX GOUEDARD
-----------------------------------
Name: Xxxx-Xxxxxxxx Gouedard
Title: President & Chief
Operating Officer
