1
Exhibit 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of March 29, 1999
between AMR Services Corporation, a Delaware corporation, together with its
subsidiaries (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇ (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 upon the Closing Date, (the "Effective Date") as
such term is defined in the stock purchase agreement by and among MR Services
Acquisition Corporation ("MR Services"), AMR Services Holding Corporation and
AMR Corporation, dated as of December 23, 1998, for itself and its affiliates,
to render exclusive and full-time services to the Company. The Executive will
serve in the capacity of Chief Financial Officer of the Company. 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. The Executive will perform such other 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.
1.2 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 three (3) years from the Effective Date.
It may be extended by mutual, written agreement at any time. In the event of the
Executive's termination of employment during the term of this Agreement, 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 Sections
4.1, 4.2, 4.3, 4.4, and 4.5 of this Agreement.
2
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 one-hundred sixty-five thousand DOLLARS
($165,000), payable in equal semi-monthly installments of $6,875.
3.2. Bonuses. The Executive shall be entitled to
receive from the Company an annual cash bonus in an amount determined by the
Compensation Committee of the Board of Directors of the Company which could
reach 50% percent of Base Salary.
3.3 Participation in Employee Benefit Plans. The
Executive shall be permitted, during the term of this Agreement, 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. Executive shall be entitled to paid
vacation and all customary holidays each year during the term of this Agreement
in accordance with the Company's policies as the same may be established from
time to time.
3.4 Car Allowance. The Executive shall be entitled to
a monthly car allowance equal to $300.00.
3.5 Expense Reimbursement. During the term of this
Agreement, 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.
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 and accrued bonus 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
of this Agreement 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, Executive (or his legal
representatives) shall be entitled to receive the Executive's Base Salary and
accrued bonus for the period
2
3
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 an Executive, (a) the Executive's
willful and continued failure to substantially perform the Executive's duties,
(b) repeated acts of insubordination, or willful 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) reasonable evidence
presented in writing to the Executive that the Executive engaged in a criminal
act involving moral turpitude or willful misconduct or (f) conduct not
conforming to standards of good citizenship or good moral character, or which is
potentially detrimental 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.
Upon termination for Cause hereunder the Executive
shall be entitled to receive the Executive's Base Salary through the date of
termination.
4.4 Voluntary Termination. The Executive may upon at
least sixty (60) days' prior written notice to the Company terminate employment
hereunder. Upon a voluntary termination the Executive shall be entitled to
receive the Executive's Base Salary through the date of termination.
4.5 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, in lieu of additional salary payments to the Executive for
periods subsequent to the date of such termination, the Company shall either (i)
pay a lump sum severance payment (together with the payments provided in
paragraph (b) below, to the Executive at the time of termination (the "Lump Sum
Severance Payment")) or (ii) continue to pay the Executive Base Salary for the
remaining term of this Agreement. The Lump Sum Severance Payment shall be an
amount equal to the number of years, including fractional years, remaining until
this Agreement would expire but for such termination multiplied by the
Executive's Base Salary rate as in effect as of the date of termination.
(b) For the length of the period for which
severance benefits are provided 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
3
4
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. 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 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). After termination of the
Executive's employment with the Company, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate, divulge or use any such information, knowledge or
data to anyone other than the Company and those designated by it.
5.2 Non-Solicitation or Hire. During the stated term
of this Agreement (as set forth in Section 2) and for a three (3) year period
following the termination of the Executive's employment for any reason, the
Executive shall not, directly or indirectly (i) employ or seek to employ any
person who is at the date of termination, or was at any time within the six (6)
month period preceding the date of termination, an officer, general manager,
station manager or director or equivalent or more senior level employee of the
Company or any of its subsidiaries or otherwise solicit, encourage, cause or
induce any such employee of the Company or any of its subsidiaries to terminate
such employee's employment with the Company or such subsidiary for the
employment of another company (including for this purpose the contracting with
any person who was an
4
5
independent contractor (excluding consultant) of the Company during such period)
or (ii) take any action that would interfere with, disrupt or damage the
relationship of the Company or its subsidiaries with their suppliers, customers,
employees, consultants or any other business relationship without, in any case,
the prior written consent of the Board of Directors of the Company, or engage in
any other action or business that would have a material adverse effect on the
Company.
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 MR Services.
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 of this Agreement,
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
5
6
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:
AMR SERVICES CORPORATION
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If the Executive, to his home address set forth
in the records of the Company.
6.2 Entire Agreement. 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
7
6.3 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.
6.4 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of New York.
6.5 Assignability. This Agreement, and the
Executive's rights and obligations hereunder, may not be assigned by the
Executive. 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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
7
8
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.
6.10 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.
8
9
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/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
AMR SERVICES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
9
