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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into effective
as of December 7, 1998 by and between AMR Services Corporation, a Delaware
corporation (the "Company"), and Olivier Bijaoui ("Executive"), having a
mailing address at xxx xx Xxxxxx, 00000 Xxxxx, Xxxxxx.
R E C I T A L S
The Board of Directors of the Company has determined that it
is in the best interests of the Company to reinforce and encourage the
continued attention and dedication of members of the Company's management,
including the Executive, to their assigned duties without distraction during a
possible sale of the Company. To enhance and induce Executive's uninterrupted
service to the Company, and to provide Executive with specific contractual
assurance of Executive's continued employment with the Company following a sale
of the Company, the Company wishes to provide in this Agreement for the
employment of the Executive upon the terms and conditions hereinafter set
forth.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive hereby agree
as follows:
1. Employment. Upon the terms and subject to the conditions
contained in this Agreement, the Executive agrees to provide full-time
services for the Company. The Executive agrees to devote his best
efforts to the business of the Company, and to perform his duties in a
diligent, trustworthy, and business-like manner, all for the purpose
of advancing the business of the Company.
2. Duties. Executive's duties, title and reporting
relationship within the Company's management structure shall during
the term of this Agreement be commensurate with Executive's current
duties, title and reporting relationship, as briefly outlined on
Exhibit A attached hereto. Subject to the provisions of Section
10(e)(A), the Executive's duties may, from time to time, be changed or
modified at the discretion of the President of the Company.
3. Employment Term. Subject to the terms and conditions
hereof, the Company agrees to employ the Executive for a term
commencing on the effective date of this Agreement and, subject to
Section 11(k), continuing through the second anniversary of the date
of consummation (the "Closing Date") of any transaction involving the
sale of substantially all of the assets of the Company or a
controlling equity interest in the Company to, or any merger,
consolidation, business combination, or similar transaction
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with, a party unaffiliated with AMR Corporation. This Agreement may be
extended beyond the foregoing term by mutual agreement of the parties.
4. Salary and Benefits.
(a) Base Salary. From and after the effective date
of this Agreement, the Company shall continue to pay to Executive his
current annual base salary of FF 926,500 ("Base Salary"), pro rated
for periods of less than 12 months. Executive's Base Salary shall be
paid in accordance with the Company's standard payroll practices.
Effective as of the Closing Date and during the remaining term of this
Agreement, Executive's Base Salary shall be increased to FF 972,825.
After the Closing Date, Executive's Base Salary shall be reviewed and
considered for adjustment by the Company at least annually. The
Company may not, however, reduce the Executive's Base Salary at any
time during the term of this Agreement. As provided in Section 11(i)
below, it is the intent of the parties that this Agreement not amend
or modify any agreement between Executive and SFS pertaining to
Executive's employment with or service to SFS as a salaried employee
or in any other capacity; however, any salary, bonus or other
non-severance-related cash compensation paid to Executive directly by
SFS (in SFS's capacity as principal and not merely as a disbursement
or other agent for the Company) shall be subtracted from and reduce
the compensation payable to Executive by the Company under this
Agreement. The effect of potential severance-related payments to
Executive by SFS are governed by Section 5(d) below.
(b) Annual Bonus Payment. The Company shall pay
Executive an annual bonus during the term of this Agreement. The first
such bonus shall be paid on or before March 15, 2000 (relating to the
year 1999), and on or before the March 15, 2001 (relating to the year
2000). If the Agreement expires in 2001 and is not renewed by mutual
agreement of the parties, a prorated bonus shall be paid to Executive
for any portion of the year 2001 falling within the term of this
Agreement. Such prorated bonus shall be payable within thirty days
following the expiration date of this Agreement. The foregoing annual
bonus shall be an amount equal to 30% of the Executive's Base Salary
for the applicable year (the "Guaranteed Bonus"). In the event the
Company's Board of Directors continues the Company's annual incentive
plan (or adopts a new plan), and the pay out under such plan would be
greater than the Guaranteed Bonus, Executive shall in lieu of the
Guaranteed Bonus be eligible to receive the pay out determined in
accordance with such plan. Executive's Guaranteed Bonus shall be paid
in accordance with the Company's standard payroll practices.
(c) Vacation. The Executive shall be entitled to no
less paid vacation days during each full year of his employment
pursuant to this Agreement than Executive is currently entitled to as
of the date of this Agreement. Vacations shall be taken at such times
as are consistent with the reasonable business needs of the Company.
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(d) Reimbursement of Expenses. The Company shall
reimburse the Executive for all reasonable out-of-pocket expenses
incurred by the Executive in the course of his duties, in accordance
with Company policies in effect from time to time.
(e) Employee Benefits. The Executive shall be
entitled to participate in the employee benefit programs generally
available to employees of the Company, and to all normal perquisites
provided to senior executives of the Company, it being understood and
agreed, however, that (i) the programs and perquisites made available
to Executive during the term of this Agreement shall be commensurate
with those provided to Executive immediately prior to the date of this
Agreement (except for benefits of the type provided under the AMR Long
Term Incentive Plan which may change or be eliminated from and after
the Closing Date), and (ii) unless provided pursuant to a separate
agreement or policy adopted by the Company prior to the Closing Date,
the Company shall not make air travel privileges available to
Executive or other employees of the Company after the Closing Date.
(f) Stay-In-Place Benefits. In addition to any other
amounts due Executive hereunder, the Company shall pay to Executive
certain amounts and make certain other benefits/privileges available
to Executive as outlined in the letter to Executive from the President
of AMR Global Services dated October 9, 1998. The Company's obligation
to pay the foregoing amounts and make the foregoing
benefits/privileges available shall be contingent upon Executive not
(i) voluntarily terminating his employment prior to the Closing Date
(other than for Good Reason); or (ii) being terminated by the Company
for Cause prior to the Closing Date.
(g) Signing Bonus. In addition to any other amounts
due Executive hereunder or provided for in the letter referred to in
Section 4(f), promptly following the Closing Date the Company shall
pay to Executive a bonus equal to eight month's of Executive's Base
Salary, provided that Executive executes and delivers this Agreement
to the Company on or prior to December 7, 1998. Executive's Base
Salary in effect on the date of this Agreement shall be used in
calculating the foregoing bonus amount. The Company's obligation to
pay the foregoing bonus shall be contingent upon Executive not (i)
voluntarily terminating his employment prior to the Closing Date
(other than for Good Reason); or (ii) being terminated by the Company
for Cause prior to the Closing Date.
5. Termination of Employment. The Board of Directors of the
Company may terminate the employment of the Executive at any time as
it deems appropriate. Executive shall likewise be entitled at any time
to terminate his employment with the Company. Upon such termination,
the Company's and Executive's further rights and obligations shall be
determined as set forth in the remaining provisions of this Section 5
and as otherwise provided in this Agreement.
(a) Termination Without Cause; Resignation for Good
Reason. If the Executive's employment is terminated by the
Company without Cause, or the Executive voluntarily
terminates his employment for Good Reason:
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(i) The Company shall continue to pay the
Executive his Base Salary and Guaranteed Bonus as
provided in Sections 4(a) and (b) above until the
end of the term of this Agreement (prorated through
the termination date);
(ii) The Company shall maintain in full
force and effect for the continued benefit of the
Executive, until the end of the term of this
Agreement, all employee benefit plans and programs
or arrangements in which the Executive was entitled
to participate immediately prior to the date of
termination, provided that his continued
participation is possible under the general terms
and provisions of such plans and programs (it being
understood and agreed, however, that unless provided
pursuant to a separate agreement or policy adopted
by the Company prior to the Closing Date, the
Company shall not make air travel privileges
available to Executive or other employees of the
Company after the Closing Date). In the event that
the Executive's participation in any such plan or
program is barred, the Company shall arrange to
provide the Executive with benefits substantially
similar to those which he is entitled to receive
under such plans and programs.
(b) Voluntary Resignation or Termination for Cause.
If the Executive shall voluntarily terminate his employment
other than for Good Reason, or if the Company shall discharge
the Executive for Cause, this Agreement shall terminate
immediately and the Company shall have no further obligation
to make any payment under this Agreement which has not
already become payable, but has not yet been paid; provided,
however, that with respect to any stock options, performance
shares, career equity shares, incentive plans, deferred
compensation arrangements, or other plans or programs in
which the Executive is participating at the time of
termination of his employment, the Executive's rights and
benefits under each such plan shall be determined in
accordance with the terms, conditions, and limitations of the
plan in question.
(c) Mitigation of Amounts Payable Hereunder.
Executive shall not be required to mitigate the amount of any
payment provided for in this Section 5 by seeking other
employment or otherwise, nor shall the amount of any payment
provided for in this Section 5 be reduced by any compensation
earned by the Executive as the result of employment by
another employer after the date of termination, or otherwise.
(d) French Severance Payments. The payments provided
for under this Section 5 shall not reduce any severance or
similar termination-related payments which may be paid to
Executive by SFS ("French Severance Payments") should
Executive's employment with SFS be terminated; provided,
however, that to the extent such termination occurs during
the term of this Agreement and the French Severance Payments
exceed the equivalent of
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U.S. $100,000, then any payments provided for under this
Section 5 shall be reduced by such excess amount.
6. Relocation.
(a) If at any time during the term of this Agreement
the Company requires the Executive to Relocate, the Company shall pay
(or reimburse the Executive) for all reasonable moving expenses
incurred by him relating to a change of his principal residence in
connection with such Relocation and to indemnify the Executive against
any loss (defined as the difference between the actual sale price of
such residence and the higher of (i) his aggregate investment in such
residence, or (ii) the fair market value of such residence as
determined by a real estate appraiser designated by the Company and
reasonably satisfactory to Executive) realized on the sale of the
Executive's principal residence in connection with any such change of
residence. In addition, Executive's Base Salary shall be increased for
the remaining term of this Agreement if and to the extent the Company
requires Executive to Relocate to an area with a higher cost of
living. Such increase shall be proportional to the cost of living
differential between the Current Location and the new location, as
determined in accordance with an index selected by the Company that
indicates the cost of living differential between various metropolitan
areas.
(b) If the Company Relocates Executive during the
term of this Agreement, and Executive's employment with the Company is
thereafter terminated prior to the second anniversary of the
Relocation (regardless of whether Executive is at the time of such
termination employed under this Agreement, any extension hereof or as
an at-will employee or otherwise), then the Company shall, upon
Executive's request, pay (or reimburse the Executive) for all
reasonable moving expenses incurred by him in relocating his principal
residence back to Executive's Current Location or other location
within France designated by Executive, and indemnify Executive against
any loss (as defined in Section 6(a) above) realized on the sale of
the Executive's principal residence in connection with any such change
of residence; provided, however, that if Executive wishes to relocate
to a location other than his Current Location, then Executive shall be
responsible for and pay any relocation expenses in excess of the cost
of relocating to his Current Location.
7. Confidential Information. The Executive recognizes and
acknowledges that he will have access to certain information of
members of the Company Group and that such information is confidential
and constitutes valuable, special and unique property of such members
of the Company Group. The Executive shall not at any time, either
during or subsequent to the term of this Agreement, disclose to
others, use, copy or permit to be copied, except in pursuance of his
duties for and on behalf of the Company, its successors, assigns or
nominees, any Confidential Information of any member of the Company
Group (regardless of whether developed by the Executive) without the
prior written consent of the Company. The Executive shall maintain in
confidence any Confidential Information of third parties received as a
result of his employment with the
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Company in accordance with the Company's obligations to such third
parties and the policies established by the Company.
8. Delivery of Documents upon Termination. The Executive
shall deliver to the Company or its designee at the termination of his
employment all correspondence, memoranda, notes, records, drawings,
sketches, plans, customer lists, product compositions, and other
documents and all copies thereof, made, composed or received by the
Executive, solely or jointly with others, that are in the Executive's
possession, custody, or control at termination and that are related in
any manner to the past, present, or anticipated business of any member
of the Company Group. In this regard, the Executive hereby grants and
conveys to the Company all right, title and interest in and to,
including without limitation, the right to possess, print, copy, and
sell or otherwise dispose of, any reports, records, papers, summaries,
photographs, drawings or other documents, and writings, and copies,
abstracts or summaries thereof, that may be prepared by the Executive
or under his direction or that may come into his possession in any way
during the term of his employment with the Company that relate in any
manner to the past, present or anticipated business of any member of
the Company Group.
9. Remedies. The Executive acknowledges that a remedy at law
for any breach or attempted breach of the Executive's obligations
under Sections 7 and 8 may be inadequate, agrees that the Company may
be entitled to specific performance and injunctive and other equitable
remedies in case of any such breach or attempted breach, and further
agrees to waive any requirement for the securing or posting of any
bond in connection with the obtaining of any such injunctive or other
equitable relief.
10. Definitions. For purposes of this Agreement, capitalized
terms shall have the respective meanings set forth below or as
elsewhere provided in this Agreement:
(a) "Cause" means (A) the willful and continued
failure by the Executive to perform his duties with the
Company (other than any such failure resulting from
incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to
the Executive by the Board which specifically identifies the
manner in which the Board believes that he has not
substantially performed his duties and specifying a
reasonable period during which Executive shall be afforded an
opportunity to cure such failure, or (B) the willful engaging
by the Executive in gross misconduct materially and
demonstrably injurious to the Company. For purposes of this
paragraph, no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be
done, by him (i) not in good faith and (ii) without
reasonable belief that his action or omission was in the best
interest of the Company.
(b) "Company Group" means the Company, and any
entity that from time to time directly or indirectly
controls, is controlled by, or is under common control with,
the Company, and for purposes of this definition "control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of
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the management and policies of such entity, whether through
the ownership of voting securities, by contract or otherwise.
(c) "Confidential Information" means with respect to
any person means any secret or confidential information or
know-how and shall include, but shall not be limited to, the
plans, customers, costs, prices, uses, and applications of
products and services, results of investigations, studies or
experiments owned or used by such person, and all apparatus,
products, processes, compositions, samples, formulas,
computer programs, computer hardware designs, computer
firmware designs, and servicing, marketing or manufacturing
methods and techniques at any time used, developed,
investigated, made or sold by such person, before or during
the term of this Agreement, that are not readily available to
the public or that are maintained as confidential by such
person.
(d) "Disability" means Executive's qualification for
long-term disability benefits under the Company's disability
plan or insurance policy; or, if no such plan or policy is
then in existence (or if Executive does not participate in
such plan or policy), Executive becoming unable to perform
his or her employment duties for a period of four continuous
months (or four months in any six-month period) because of
ill health or physical or mental disability.
(e) "Good Reason" means:
(A) Without his express written consent,
the assignment to the Executive of any duties not
commensurate with his current duties, title and
reporting relationship, as specified in Exhibit A,
or any removal of the Executive from or any failure
to re-elect the Executive to any of such positions,
except in connection with the termination of his
employment (i) for Cause or as a result of his
death, or (ii) by the Executive other than for Good
Reason;
(B) A reduction by the Company of
Executive's Base Salary (as in effect from time to
time) or Executive's Guaranteed Bonus;
(C) The taking of any action by the Company
which would materially and adversely affect the
Executive's participation in or materially reduce
his benefits under any benefit or compensation plan,
or the failure by the Company to (i) pay any
relocation expense or indemnify Executive against
any relocation loss to the extent provided for in
Section 6 above, or (ii) provide the Executive with
at least that number of paid vacation days to which
he is entitled as set forth in Section 4(c) above
(provided, however, that discontinuance of
Executive's travel privileges after the Closing Date
(without prejudice to any travel commitments made in
any other agreement) shall not give rise to a Good
Reason); or
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(D) Without his express written consent,
requiring Executive to Relocate prior to the first
anniversary of the Closing Date (it being understood
and agreed that requiring Relocation after such
anniversary date shall not constitute a "Good
Reason").
(f) "Relocation" or "Relocate" means a requirement
by the Company that Executive primarily perform his duties at
a location more than 50 miles from the Current Location and
such new location is further from Executive's principal
residence than the Current Location. A Relocation shall be
deemed to occur on the date Executive actually begins to
primarily perform his duties at the new location. "Current
Location" means the location where Executive primarily
performs his duties as of the effective date of this
Agreement.
11. Miscellaneous Provisions.
(a) Successors of the Company. The Company will
require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the
Company, to assume and agree to perform this Agreement.
Except for purposes of the foregoing sentence, as used in
this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid.
(b) Disability. If, during the term of this
Agreement, the Executive incurs a Disability, the Company
shall continue to pay to the Executive all amounts payable
under Sections 4(a) and (b) above during the remaining term
of this Agreement. In addition, the Company shall maintain in
full force and effect for the continued benefit of the
Executive, until the end of the term of this Agreement, all
employee benefit plans and programs or arrangements in which
the Executive was entitled to participate immediately prior
to the date of Disability, provided that his continued
participation is possible under the general terms and
provisions of such plans and programs (it being understood
and agreed, however, that unless provided pursuant to a
separate agreement or policy adopted by the Company prior to
the Closing Date, the Company shall not make air travel
privileges available to Executive or other employees of the
Company after the Closing Date). In the event that the
Executive's participation in any such plan or program is
barred, the Company shall arrange to provide the Executive
with benefits substantially similar to those which he is
entitled to receive under such plans and programs. Amounts
payable under this Section 11(b) shall be in addition to any
amounts paid under any disability insurance policies that may
be maintained in Executive's favor.
(c) Executive's Heirs, etc. The Executive may not
assign his rights or delegate his duties or obligations
hereunder without the written consent of the Company. This
Agreement shall inure to the benefit of and be enforceable by
the
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Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any cash
compensation amounts would still be payable to him hereunder
if he had continued to live, all such amounts, unless other
provided herein, shall be paid in accordance with the terms
of this Agreement to his designee or, if there be no such
designee, to his estate.
(d) Notice. For the purposes of this Agreement,
notices and all other communications provide for in the
Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested,
postage prepaid, addressed, in the case of Executive, to his
address set forth on the first page of this Agreement and, in
the case of the Company, to the address of its headquarters
office (provided that all notices to the Company shall be
directed to the attention of the President of the Company
with a copy to the Secretary of the Company), or to such
other address designated in writing in accordance herewith,
except that notices of change of address shall be effective
only upon receipt.
(e) Amendment; Waiver. No provisions of this
Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer as may be
specifically designated by the Board of Directors of the
Company (which shall in any event include the Company's
President). No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which
are not set forth expressly in this Agreement.
(f) Invalid Provisions. Should any portion of this
Agreement be adjudged or held to be invalid, unenforceable or
void, such holding shall not have the effect of invalidating
or voiding the remainder of this Agreement and the parties
hereby agree that the portion so held invalid, unenforceable
or void shall, if possible, be deemed amended or reduced in
scope, or otherwise be stricken from this Agreement to the
extent required for the purposes of validity and enforcement
thereof.
(g) Survival of the Executive's Obligations. The
Executive's obligations under Section 7 and 8 of this
Agreement shall survive regardless of whether the Executive's
employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or
without Cause.
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(h) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and
the same instrument.
(i) Governing Law. This Agreement shall be governed
by and construed under the laws of the State of Texas. This
Agreement shall not be deemed to modify or amend any
agreement between Executive and SFS pertaining to Executive's
employment with or service to SFS as a salaried employee or
in any other capacity.
(j) Captions and Gender. The use of captions and
Section headings herein is for purposes of convenience only
and shall not effect the interpretation or substance of any
provisions contained herein. Similarly, the use of the
masculine gender with respect to pronouns in this Agreement
is for purposes of convenience and includes either sex who
may be a signatory.
(k) Termination of Agreement if No Sale.
Notwithstanding any other provision of this Agreement, if the
Closing Date has not occurred by July 31, 1999, the Company
shall thereafter be entitled to terminate this Agreement at
any time without further obligation or liability.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the date first written above.
AMR SERVICES CORPORATION
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
President
By: /s/ Olivier Bijaoui
----------------------------------------
Olivier Bijaoui
Exhibit A: Job Description
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EXHIBIT A
SENIOR VICE PRESIDENT - EUROPE AND MIDDLE EAST
As a Senior Vice President - Europe and Middle East,
Executive reports to the President of the Company. The position is responsible
for the financial and operational performance of the Company's European
stations, including, at the present time, Belgium, France, Poland, Spain and
the United Kingdom. Executive directs and coordinates overall activities at his
designated stations in such functional areas as station operations, financial
planning and product marketing. Executive participates in the formulation and
administration of Company policies and long range goals, objectives and
strategy.
