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EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of June 1, 2000
(the "Effective Date") between Worldwide Flight Services, Inc., a Delaware
corporation, together with its subsidiaries (the "Company") and Xxxxxxx X.
Xxxxxxx (the "Executive").
WHEREAS, the parties wish to establish the terms of
Executive's future employment with the Company.
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 June 1, 2000 (the "Effective Date") to
render exclusive and full-time services to the Company. The Executive will serve
in the capacity of Executive Chairman of the Company and shall serve as a member
of the Board of Directors of the Company. The Executive will perform such duties
as may be assigned to him from time to time by the Board of Directors of the
Company. The Executive will devote all his full working-time and attention to
the performance of such duties and to the promotion of the business and
interests of the Company. This provision, however, will not prevent the
Executive from investing his funds or assets in any form or manner, or from
acting as a member of the board of directors of any companies, businesses, or
charitable organizations, so long as such actions do not violate the provisions
of Section 5 of this Agreement and are otherwise in accordance with the
provisions of Section 3.6 of this Agreement.
1.2 Acceptance of Employment by the Executive. The
Executive accepts such employment and shall render the services described above.
2. Duration of Employment.
Subject to Section 4 of this Agreement, (i) this
Agreement and the employment relationship hereunder will continue in effect for
two (2) years from the Effective Date (the "Initial Term") and (ii) 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. If such notice is given, the Initial Term
or the Extended Term then in effect, as the case may be, 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.
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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 ("Base Salary") of Four Hundred Thousand Dollars ($400,000),
subject to an upward adjustment by the Board of Directors of the Company, in its
sole discretion of not less than 5% per annum, and payable in accordance with
the payroll practices of the Company (the "Base Salary").
3.2. Bonus for Calendar Year 2000. (a) For calendar
year 2000, the Executive shall be entitled to receive a bonus of $500,000 to be
accrued during the calendar year 2000, and paid during the calendar year 2001,
when the Company is in full compliance after taking into account such accrual or
payment, with all of the covenants ("Covenant Compliance") contained in (i) its
credit facilities with Chase Manhattan Bank and DLJ Capital Funding, Inc.,
including without limitation, the Credit Agreement among WFS Holdings, Inc.
("Holdings"), the Company, the lenders party thereto, The Chase Manhattan Bank,
as administrative agent and DLJ Capital Funding, Inc., as syndication agent,
dated as of August 12, 1999 (as such Credit Agreement may have been amended to
the date thereof) and (ii) the Indenture among the Company, the guarantors
listed therein and the Bank of New York, as trustee, dated as of August 12, 1999
relating to the 12 1/4% senior notes due 2007 (as such Indenture may have been
amended to the date thereof).
(b) For calendar year 2000, the Executive shall be
entitled to receive an additional bonus of $250,000 if, after accruing for such
bonus, the Company is in Covenant Compliance and CHP III's investment in
Holdings has achieved, after accruing for such bonus, a 30% IRR ("IRR") (as such
term is defined in the WFS Holdings, Inc. 1999 Stock Option Plan) for calendar
year 2000.
(c) For calendar year 2000, the Executive shall be
entitled to receive an additional annual bonus (in addition to any bonus earned
pursuant to subsections (a) and (b) of this Section 3.2) of $10,000 for every 1%
by which the IRR CHP III's investment in Holdings achieves, after accruing for
such bonus, exceeds a 30% IRR, provided that the Company, after accruing for
such bonus, is in Covenant Compliance for such calendar year. For example, if
CHP III's investment in Holdings achieves a 35% IRR, the Executive shall be
entitled to an additional bonus of $50,000.
3.3. Bonus for Calendar Years After 2000. (a) For
each calendar year after 2000, the Executive shall be entitled to receive an
annual bonus of $250,000 if the Company, at all times and after accruing for
such bonus, is in Covenant Compliance for such calendar year.
(b) For each calendar year after 2000, the Executive
shall be entitled to receive an additional annual bonus of $250,000, if the
Company, after accruing for such bonus, is in Covenant Compliance at all times
during such calendar year and CHP III's investment in Holdings has achieved a
30% IRR.
(c) For each calendar year after 2000, the Executive
shall be entitled to receive an additional annual bonus (in addition to any
bonus earned pursuant to subsections (a)
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and (b) of this Section 3.3) of $20,000 for every 1% by which the IRR CHP III's
investment in Holdings achieves, after accruing for such bonus, exceeds a 30%
IRR, provided that the Company, after accruing for such bonus, is in Covenant
Compliance at all times during such calendar year. For example, if the CHP III's
investment in Holdings achieves a 35% IRR, the Executive shall be entitled to an
additional bonus of $100,000.
3.4 Payment of Bonuses. Any bonuses earned by the
Executive pursuant to Section 3.2 or 3.3 shall be paid by the Company as soon as
practicable after the Compensation Committee of the Board of Directors of the
Company determines that all conditions contained in this Section 3 relating to
the bonuses have been met, provided, however, that if the payment of all or any
portion of a bonus would cause the Company to fail to be in Covenant Compliance,
the Company shall defer such payment until the payment of such bonus or portion
of such bonus would not cause the Company to fail to be in Covenant Compliance.
Any amounts, with regard to Sections 3.2 and 3.3, not accrued in the calendar
year to which they relate, shall remain available and will be accrued in future
calendar years, subject to the same conditions as above.
3.5 Bonus Upon Sale of Holdings. (a) If a sale of
Holdings to a third party that is not an affiliate of Xxxxxx Xxxxxx Partners
III, L.P. ("CHP III") whether by sale of stock, sale of all or substantially all
of the assets of Holdings or by merger (a "Realization Event") occurs before the
first anniversary of the Effective Date, the Company shall pay to the Executive
an amount equal to $2 million.
(b) If a Realization Event occurs after the first
anniversary of the Effective Date and CHP III receives a cash payment equal to
or exceeding 2 times (2x) the amount which CHP III invested in Holdings (such
multiple shall be referred to as the "Multiple"), the Company shall pay to the
Executive an amount equal to: ((the Multiple x $1 million) + $500,000).
3.6 Contributions. During the Term, the Company shall
pay the Executive up to twenty-five thousand dollars ($25,000) per year solely
for the purpose of the Executive to use the after-tax dollars remaining from
such a payment for contributions to be made by the Executive.
3.7 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. In addition, during the Term, the Company shall pay the
premiums associated with the whole life insurance policy maintained by the
Executive for the purpose of providing benefits upon the Executive's death equal
to two times Base Salary.
3.8 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 allocated options under the WFS Holdings, Inc. 1999 Stock
Option Plan (the "Stock Option Plan") for the purchase of up to thirty-seven
thousand five hundred (37,500) shares of non-voting common stock of Holdings.
All terms and conditions applicable to such stock options shall be
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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. The Company shall finance, with full recourse, the full
exercise price of any Options that are exercised by the Executive one (1) day
after the Options are vested, subject to mutually agreeable terms, with an
interest rate equal to eight percent (8%) per annum, paid on a current basis;
provided, however, if Holdings is sold to a third party that is not an affiliate
of CHP III by a sale of Holdings' stock, sale of all or substantially all of
Holdings' assets or by merger and the Executive has not been terminated by the
Company for Cause and the Executive has not terminated his employment with the
Company without Good Reason, any loan, with interest, from the Company to the
Executive under this Section 3.8 shall be cancelled. If the Executive is
terminated for Cause or has terminated his employment without Good Reason, the
loan will be due within 15 days of such termination.
3.9 Purchase of Stock. For a period of one (1) month
from the Effective Date, the Executive shall be provided with the opportunity to
purchase 62,500 shares of voting common stock of Holdings, at the price of $3.25
per share (the "Common Stock"). The Company shall finance, with full recourse,
up to fifty percent (50%) of the purchase price of such Common Stock, subject to
mutually agreeable terms, with an interest rate equal to eight percent (8%) per
annum, paid on a current basis. The purchase of the Common Stock shall be
subject to the Management Subscription Agreement and the Stock Buy-Back
Agreement between Holdings and the Executive, the Stockholders' Agreement among
Holdings, the Executive and other stockholders of Holdings and the Voting Trust
Agreement among Holdings, the Executive, other stockholders of Holdings and
Xxxxxxx Xxxxxx. Upon termination of the Executive's employment for any reason
other than termination by the Company without Cause or by the Executive with
Good Reason, the remaining balance on any outstanding loan under this Section
3.9 shall be paid by the Executive to the Company within fifteen (15) days of
such termination. If the Executive's employment is terminated by the Company
without Cause or the Executive terminates his employment with Good Reason, any
loan under this Section 3.9 shall continue, provided, however, that the loan
shall be paid by the Executive immediately upon a sale of Holdings to a third
party that is not an affiliate of CHP III by a sale of Holdings' stock, sale of
all or substantially all of Holdings' assets or by merger.
3.10 Car Allowance. The Executive shall be entitled
to a monthly car allowance equal to $(750).
3.11 Vacation. The Executive shall be entitled to
twenty (20) business days of paid vacation per year.
3.12 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.
3.13 Location and Commuting Expenses. For a period
not to exceed eighteen (18) months from the Effective Date, the Company shall
provide reimbursement to the
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Executive for (i) a furnished rental apartment in the Dallas/Fort Worth, Texas,
area at a cost not to exceed Two Thousand Five Hundred Dollars ($2,500) per
month and (ii) travel to and from Forest Lake, Minnesota to Dallas/Fort Worth
for the Executive or his family at a cost not to exceed Three Thousand Five
Hundred Dollars ($3,500) per month, with the Executive using his best reasonable
efforts to coordinate personal travel with Company business related travel.
3.14 Relocation Package. The Company shall offer to
the Executive a comprehensive relocation package (including, but not limited to,
real estate fees and expenses on the sale and purchase of his residence) in the
event that the Executive chooses to move from Minnesota to the Dallas/Fort Worth
area.
4. Termination.
4.1 Termination Upon Death. If the Executive dies
during the term hereof, the Executive's legal representatives shall be entitled
to receive the Executive's Base Salary, as adjusted, and accrued bonus and
unpaid vacation days 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,
as adjusted, and accrued bonus and unpaid vacation days and other benefits 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
continued failure to substantially perform the Executive's duties, (b) repeated
acts of insubordination, or failure to execute Company plans and/or strategies,
(c) acts of dishonesty resulting or intending to result in personal gain or
enrichment at the expense of the Company, (d) conviction of, or pleading guilty
or no contest to, a felony, all as determined by the Board of Directors of the
Company in its reasonable judgment; (e) if the Executive engaged in a criminal
act constituting a felony or (f) conduct, including with respect to non-Company
matters, which is potentially materially adverse 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.
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Upon termination for Cause hereunder the Executive
shall be entitled to receive the Executive's Base Salary, as adjusted, other
benefits and pro rated bonus through the date of termination.
4.4 Voluntary Termination by the Executive. The
Executive may upon at least thirty (30) days' prior written notice to the
Company terminate employment hereunder.
(a) Upon a voluntary termination for other
than Good Reason, the Executive shall be entitled to receive the Executive's
Base Salary, as adjusted, other benefits and pro rated bonus through the date of
termination.
(b) Upon a voluntary termination for Good
Reason (other than the Executive's election to terminate his employment
following a Change in Control as provided in Section 4.5 hereof), the Executive
shall be entitled to receive, (i) for a period of twelve months of such
termination, his Base Salary, as adjusted, other benefits 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 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.
The term "Good Reason" shall mean (1) a
reduction in Base Salary or any agreed upon benefit under this Agreement without
the Executive's consent; provided, that the Company may at any time or from time
to time amend, modify, suspend or terminate any bonus, incentive compensation or
other benefit plan or program provided to the Executive for any reason and
without the Executive's consent if such modification, suspension or termination
is consistent with similarly situated senior executive employees of the Company
or (2) a material adverse change in the Executive's responsibilities, position,
duties, resources, personnel, reporting responsibilities or support assigned to
the Executive without his or her prior consent.
4.5 Voluntary Termination by the Executive upon a
Change in Control.
In the event of a Change in Control, the
Executive shall have the right (by written notice to the Company within ten (10)
business days of such Change in Control) to terminate his employment with the
Company upon his election. In that event, the Executive shall be entitled to (a)
receive for a period of twelve (12) months after such termination, his Base
Salary, as adjusted, other benefits and accrued vacation days, (b) a pro rated
bonus to the date of termination and (c) for the period of twelve (12) months
after such voluntary termination upon a Change in Control, 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 (c) shall be reduced to
the extent comparable benefits are actually received by the Executive during the
period following the Executive's termination, and
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any such benefits actually received by the Executive shall be reported to the
Company. The term "Change in Control" shall be as defined in Section 2 of the
Stock Option Plan.
4.6 Termination by the Company Other Than For Cause.
(a) If, prior to the expiration of this
Agreement, the Company terminates the Executive's employment for any reason
other than Cause, the Company shall pay to the Executive (i) his Base Salary, as
adjusted and other benefits for the remaining duration of the Term and (ii) a
pro rated bonus to the date of termination.
(b) For the period after any termination
pursuant to this Section 4.6, 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 4.6
shall prevent the Executive from receiving any and all benefits or bonus 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
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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.
(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
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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, 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
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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: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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
Attention: Xxxxxx Xxxxx
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
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(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
3.8, 3.9 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 applicable to
agreements made and to be performed entirely within such state, without regard
to conflicts of laws principles.
6.6 Assignability. This Agreement, and the
Executive's rights and obligations hereunder, may not be assigned by the
Executive. Subject to the Executive's rights under Section 4.5, the Company may
assign this 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
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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 Sections 4.4, 4.5 and 4.6
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 Internal Revenue Code of 1986, as amended
(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 due 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.
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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/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
