W I T N E S S E T H
WHEREAS, the parties wish to provide for the employment of the Executive by the Company and to restrict the ability of the Executive to compete with the Company, all on the terms and conditions herein set forth;
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and agreements herein contained, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Employment. The Company hereby employs Executive for a term of two (2) years (the Employment Term), commencing on the Effective Date, to serve as Senior Vice President Corporate Finance of the Company and to perform such services and duties as are consistent with such position. Executive hereby accepts such employment. During the term of his employment hereunder, Executive shall devote his full time, attention, knowledge and skills faithfully, diligently and to the best of his ability to perform his duties hereunder, and Executive shall not engage in any venture or activity which materially interferes with Executives performance of his duties hereunder. The Executive shall also comply with the World Fuel Services Corporation, (WFS) Code of Corporate Conduct and the WFS Securities Policy (the Corporate Policies), copies of which have been provided to Executive, as such Corporate Policies may be amended from time to time. Executive acknowledges that certain provisions of the Corporate Policies impose obligations which go further than and are additional to those in this Agreement (for example, in relation to the confidentiality) and Executive undertakes and agrees to comply fully with such additional obligations.
2. Compensation and Benefits. During the Employment Term, the Company shall pay Executive the compensation and other amounts set forth below.
2.1 Salary. The Company shall pay Executive an annual salary (Salary) of $190,000 during the Employment Term, payable in equal installments according to the Companys regular payroll practices and subject to such deductions as may be required by law. Salary will be reviewed annually and may at the discretion of the Company be increased.
2.2 Bonus. The Company will pay Executive an annual performance bonus in an amount determined by the Company in its sole discretion. Your target bonus for the first year will be $60,000. The Company may award a lower or higher bonus in its sole discretion upon review of your overall performance; however, your bonus will not be less than $20,000 annually (Minimum Bonus).
2.3 Long Term Service Awards Program (LTSAP). Executive will participate in the LTSAP, under which Executive will be eligible to receive an annual deferred incentive award (Award) in an amount up to ten-percent (10%) of Executives annual cash compensation, as determined by the Company in its sole discretion. Any Awards granted would be payable on an annual installment basis following Executives completion of five (5) years of continuous employment with the Company following the Effective Date (e.g., the award applicable to year two (2) of Executives employment would be payable during Executives seventh (7th) year of continuous employment). In the event of the termination of Executives employment with the Company for any reason, any unpaid Awards would be forfeited; except that (i) unpaid Awards would not be forfeited in the event that Executive remains continuously employed by the Company or any of subsidiaries or
affiliates, following such termination, in which case such Awards would remain payable in accordance with the terms of the LTSAP and (ii) in the event such termination is the result of Executives retirement, the Company may continue to pay any unpaid Awards in its sole discretion.
2.4 Benefits. Executive shall receive: (i) family medical insurance coverage at no cost and the benefits and perquisites provided by the Company to its employees generally from time-to-time; (ii) reimbursement for reasonable and necessary out-of-pocket expenses incurred in the performance of his/her duties hereunder, including but not limited to travel and entertainment expenses (such expenses shall be reimbursed by the Company, from time to time, upon presentation of appropriate receipts therefore and in accordance with the Companys expense policies); and (iii) four (4) weeks paid vacation annually. Vacation time may not be carried over to the following year in accordance with Company policy.
3.1 Executives employment pursuant to this Agreement shall be terminated by the first to occur of the following events:
a) The death of Executive;
b) The Complete Disability of Executive. Complete Disability as used herein shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, to perform the services provided for in this Agreement for an aggregate of ninety (90) days within any period of twelve (12) consecutive months during the Term hereof; or
c) The discharge of Executive by the Company for Cause, Cause as used herein shall mean:
(i) illegal drug use;
(ii) alcohol abuse;
(iii) Executive is named as a defendant in any criminal indictment or the Company has reasonable grounds for suspecting him/her of having committed an offense;
(iv) Executive engages in, or is reasonably suspected by the Company to engage in fraud; misrepresentation; theft or improper removal of Company property; embezzlement; fighting or threatening violence; excessive absenteeism; harassment of employees, clients, or customers; disclosure of confidential information of the Company; or any other serious violation of Company policies or procedures;
(v) Executives willful failure or refusal to comply with the provisions of this Agreement or to perform Executives duties and obligations under this Agreement, in any material respect (a Default); provided, however, that in the case of this subsection (v), termination for Cause shall occur only if (i) the Company has given written notice of the Default to Executive and Executive has failed to cure the Default in question, if curable, during a period of ten (10) days after the date of Executives receipt of such notice or (ii) Executive recommits a Default previously notified to the Executive in writing.
3.2 Upon any termination pursuant to Section 3.1, the Company shall be released from all obligations hereunder, including without limitation, the obligation to compensate Executive pursuant to Section 2.
3.3 Notwithstanding the foregoing, the Company may terminate Executives employment pursuant to this Agreement, at any time, and for any reason upon giving written notice to Executive; provided, however, that in the event such employment is terminated by the Company for reasons other than those enumerated in Section 3.1, the Company will pay Executive an amount equal to the Salary and Minimum Bonus which would have been paid during the remaining months left in the Employment Term had this Agreement not been terminated by the Company, subject to Executives execution of a release of all claims Executive may or could have against the Company (in a form acceptable to the Company), and the Company shall not provide Executive with any other Compensation or Benefits described in Section 2. The foregoing amounts shall be paid on an installment basis over the one-year period following the date of termination; provided, however, that in the event the Executive is in violation of Section 4 of this Agreement, any unpaid amounts will be forfeited.
4. Covenant Against Unfair Competition.
4.1 Executive agrees that during the Employment Term and for a period of one (1) year, following the termination of his employment for any reason (the Restricted Period) he will not, for his own account or jointly with another, directly or indirectly, for or on behalf of any individual, partnership, corporation, or other legal entity, as principal, agent or otherwise:
(a) own, control, manage be employed by, consult with, or otherwise participate in, a business (other than that of the Company) involved within the Trade Area (as hereinafter defined) with any of the following businesses (the Businesses): (1) the storage, handling, delivery, marketing, sale, distribution or brokerage of aviation fuel, diesel fuel, gasoline, marine fuel or lubricants, aviation flight services, or marine fuel services, or (2) the offering or sale of derivative, swap or similar products for purposes of managing fuel price risk or (3) any other service or activity which is competitive with the services or activities which are or have been performed by the Company at the time of Executives separation from employment or have been performed by the Company or its subsidiaries or affiliates during the twelve (12) month period preceding the termination of Executives employment (the Prior Period);
(b) solicit (directly or indirectly) the patronage of any Restricted Customer or Prospective Customer;
(c) interfere, or seek to interfere, with the continuance of supplies to the Company or any of its subsidiaries or affiliates (or the terms relating to such supplies) from any suppliers who supplied goods or services to the Company and/or any of its subsidiaries or affiliates during the Prior Period; or
(d) solicit or induce, or in any manner attempt to solicit or induce, any person employed by the Company or any of its subsidiaries or affiliates to leave such employment, whether or not such employment is pursuant to a written contract and whether or not such employment is at will, or hire any person who has been employed by the Company or any of its subsidiaries or affiliates at any time during the one (1) year period preceding such hiring.
4.2 As used herein, the term Trade Area, Restricted Customer and Prospective Customer shall have the following meanings: (i) the term Trade Area shall mean the United States of America, and any other foreign countries or regions, which are regularly serviced by the Company during the Prior Period, (ii) the term Restricted Customer shall mean any individual, partnership, corporation, or other legal entity to whom the Company or any of its subsidiaries or affiliates sold products or provided services at any time during the Prior Period, and (iii) the term Prospective Customer shall mean any individual, partnership, corporation, or other legal entity from whom the Company or any of its subsidiaries or affiliates solicited business at any time during the Prior Period.
4.3 Executive recognizes the importance of the covenant contained in this Section 4 and acknowledges that, based on his past experience and training as a Executive of the Company and the projected expansion of the Companys business, the restrictions imposed herein are: (i) reasonable as to scope, time and area; (ii) necessary for the protection of the Companys legitimate business interests, including without limitation, the Companys trade secrets, goodwill, and its relationship with customers and suppliers; and (iii) not unduly restrictive of any of Executives rights as an individual. Executive acknowledges and agrees that the covenants contained in this Section 4 are essential elements of this Agreement and that but for these covenants, the Company would not have entered into this Agreement. Such covenants shall be construed as agreements independent of any other provision of this Agreement. The existence of any claim or cause of action against the Company by Executive, whether predicted on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants contained in this Section 4.
4.4 If Executive commits a breach or threatens to commit a breach of any of the provisions of this Section 4, the Company shall have the right and remedy, in addition to any others that may be available, at law or in equity, to have the provisions of this Section 4 specifically enforced by any court having equity jurisdiction,
through injunctive or other relief (without any bond or security being required to be posted), it being acknowledged that any such breach or threatened breach will cause irreparable injury to the Company, the amount of which will be difficult to determine, and that money damages will not provide an adequate remedy to the Company.
4.5 If any covenant contained in this Section 4, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenants, which shall be given full effect, without regard to the invalid portions, and any court having jurisdiction shall have the power to reduce the duration, scope and/or area of such covenant and, in its reduced form, said covenant shall then be enforceable. If Executive breaches the covenants set forth in this Section 4, the running of the non-compete period described herein (but not his obligation) shall be tolled for so long as such breach continues.
4.6 The provisions of this Section 4 shall survive the expiration and termination of this Agreement, and the termination of Executives employment hereunder, for any reason. If after termination of this Agreement, or the initial Employment Term (or any renewal thereof), the Executive continues to provide services to the Company or any of its subsidiaries and affiliates as an employee, consultant or in any other capacity, whether on a full or part-time basis, then notwithstanding anything to the contrary set forth herein, the Restricted Period shall not commence to run until the last day Executive provides services to the Company, even though this Agreement or the Employment Term may have terminated at an earlier date.
5. Trade Secrets/Confidential Information. Executive agrees that during the Employment Term and thereafter she will not, for his own account or jointly with another, directly or indirectly, for or on behalf of any individual, partnership, corporation, or other legal entity, as principal, agent or otherwise, use or disclose any trade secrets or confidential information of the Company, its subsidiaries or its affiliates. Trade secrets and confidential information shall include, but not be limited to; (1) lists of names and addresses of customers and suppliers of the Company, its subsidiaries or its affiliates, and (2) software and computer programs, market research and data bases, sources of leads and methods of obtaining new business, and methods of purchasing, marketing, selling, performing and pricing products and services employed by the Company, its subsidiaries or affiliates.
6. Related Party Transactions. So long as Executive is employed by the Company, he shall not, without the prior written consent of the Company, cause or permit the Company or any of its subsidiaries or affiliates to enter into or effect any agreement or transaction, or provide or receive any service, between the Company on the one hand, and Executive or a Related Party, on the other hand, except for the employment relationship contemplated hereby. In any event, any such agreements, transactions or services shall be at prices and terms which are not less favorable to the Company than the prices and terms available for similar agreements, transactions or services with unrelated third parties. As used herein, Related Party means (i) Executive, (ii) any person related by blood, adoption or marriage to Executive, (iii) any corporation or other entity in which any of the foregoing parties has, directly or indirectly, at least five percent (5%) beneficial interest in the capital stock or other type of equity interesting such corporation, or (iv) any partnership in which any such party is a general partner or limited partner having a five percent (5%) or more interest therein.
7. Company Property.
(a) The Company shall be the sole owner of all products and proceeds of the Executives services hereunder, including, but not limited to, all materials, ideas, concepts, formats, suggestions, developments, arrangements, packages, programs and other intellectual properties that the Executive may acquire, obtain, develop or create in connection with and during the term of the Executives employment hereunder, free and clear of any claims by the Executive (or anyone claiming under the Executive) of any kind or character whatsoever (other than the Executives right to receive compensation hereunder). The Executive shall, at the request of the Company, execute such assignments, certificates or other instruments as the Company may from time to time deem necessary or desirable to evidence, establish, maintain, perfect, protect, enforce or defend its
right, title and interest in or to any such properties. Upon the termination of the Executives employment for any reason whatsoever, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the Business which are in the possession of the Executive (including all copies thereof), shall be promptly returned to the Company.
(b) The Executive agrees that all processes, programs, improvements, systems complications, technologies and inventions (Inventions), including new contributions, improvements, ideas and discoveries, whether patentable or not, conceived, developed, invented or made by him during his employment by the Company shall belong to the Company, provided that such Inventions grew out of the Executives work with the Company, are related in any manner to the Business or are conceived or made on the Companys time or with the use of the Companys facilities or materials. The Executive shall (i) promptly disclose such Inventions to the Company; (ii) assign to the Company, without additional compensation, all patent and other rights to such Inventions for the United States and foreign countries; (iii) sign all papers necessary to carry out the foregoing; and (iv) give testimony in support of his inventorship.
8.1 Modification and Waiver. Any term or condition of this Agreement may be waived at any time by the party hereto that is entitled to the benefit thereof; provided, however, that any such waiver shall be in writing and signed by the waiving party, and no such waiver of any breach or default hereunder is to be implied from the omission of the other party to take any action on account thereof. A waiver on one occasion shall not be deemed to be a waiver of the same or of any other breach on a future occasion. This Agreement may be modified or amended only by a writing signed by both parties hereto.
8.2 Governing Law/Arbitration. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to any conflict-of-law rule or principle that would give effect to the laws of another jurisdiction. Each party hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum in Miami-Dade County, Florida. Should any dispute arise relating to the meaning, interpretation, or application of this Agreement, such dispute shall be heard in Miami, Florida, before the American Arbitration Association in accordance with its employment dispute arbitration rules.
8.3 Tax Withholding. The Company may withhold from any amounts payable under this Agreement such taxes as shall be required to be withheld pursuant to any applicable law or regulation.
8.4 Section Captions. Section and other captions contained in this Agreement are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
8.5 Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this Agreement.
8.6 Integrated Agreement. This Agreement constitutes the entire understanding and agreement among the parties hereto with respect to the subject matter hereof, and supersedes any other employment agreements executed before the date hereof. There are no agreements, understandings, restrictions, representations, or warranties among the parties other than those set forth herein or herein provided for.
8.7 Interpretation. No provision of this Agreement is to be interpreted for or against any party because that party or that partys legal representative drafted such provision. For purposes of this Agreement: herein, hereby, hereunder, herewith, hereafter, and hereinafter refer to this Agreement in its entirety, and not to any particular section or subsection. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument.
8.8 Notices. All notices, requests, demands, or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given upon receipt if delivered in person or by facsimile transmission (with confirmation transmission), or upon the expiration of four (4) days after the date sent, if sent by Federal Express (or similar overnight courier service) to the parties at the following addresses:
If to Executive:
|15243 SW 39th Street|
|Davie, Florida 33331|
If to the Company:
|World Fuel Services Corporation|
|9800 N.W. 41st Street, Suite 400|
|Miami, Florida 33178|
|Attn: Ileana de Armas, V.P. of Human Resources|
|Fax Number: (305) 392-5608|
Notices may also be given in any other manner permitted by law, effective upon actual receipt. Any party may change the address to which notices, requests, demands or other communications to such party shall be delivered or mailed by giving notice thereof to the other parties hereto in the manner provided herein. Any notice may be given on behalf of a party by its counsel.
8.9 Successors. This Agreement is personal to Executive and without the prior written consent of the Company shall not be assignable by Executive. This Agreement is assignable by the Company and shall inure to the benefit of and be binding upon the Company and its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
World Fuel Services Corporation
|By:||/s/ Robert Tocci|
Executive Vice President & Chief Financial Officer