EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of October 5, 2001
between Worldwide Flight Services, Inc., 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 effective as of the Closing Date,
as defined in the securities purchase agreement by and among the WFS Holdings,
Inc., Airline Container Acquisition Corp., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners III, L.P.,
Vinci S.A., Vinci Airport Inc. and Vinci Merger Sub Corp., dated as of September
7, 2001.
WHEREAS, the parties wish to establish the terms of
Executive's future employment with the Company.
Accordingly, the parties agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment by the Company. The Company shall employ the
Executive effective as of the Closing Date (the "Effective Date") to render
exclusive and full-time services to the Company. The Executive will serve in the
capacity of General Auditor and shall report to the Chief Financial Officer or
to the Chief Executive 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 Chief Executive Officer or the Board of Directors of the Company or
Executive Chairman of the Board. 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.
1.2 Location. The Executive's principal place of employment
shall be the Company's headquarters located in the Dallas/Fort Worth, Texas,
area, subject to any travel required in connection with providing services under
this Agreement.
1.3 Acceptance of Employment by the Executive. The Executive
accepts such employment and shall render the services described above.
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2. Duration of Employment.
This Agreement and the employment relationship hereunder will
continue in effect for two (2) years from the Effective Date (the "Term"). At a
time at least four (4) months prior to the expiration of the Term, the Company
and the Executive shall discuss whether the Agreement should be renewed upon
mutual written agreement. In the event of the Executive's termination of
employment during the Term or Extended Term, the Company's obligation to
continue to pay all base salary, as adjusted, bonus and other benefits then
accrued shall terminate except as may be provided for in Section 4 of this
Agreement.
3. Compensation by the Company.
3.1 Base Salary. As compensation for all services rendered
pursuant to this Agreement, the Company will pay to the Executive an annual base
salary of $100,000 payable in accordance with the payroll practices of the
Company and subject to upward adjustments annually as determined by the
[Executive Committee] of the Board of Directors (the "Committee) of the Company,
consistent with Vinci policy ("Base Salary").
3.2 Bonus. The Executive shall receive an annual bonus of
$50,000 based on performance targets to be established annually by the Committee
and provided to the Executive in advance of the applicable year. Notwithstanding
any provision contained herein to the contrary, the payment of any bonuses
pursuant to this Section 3.2 shall be subject to the approval of the Committee
of the Company, including, but not limited to, the determination that all
conditions contained in this Section 3.2 relating to the bonuses have been met.
Any bonus amount due to the Executive shall be paid by the Company as soon as
practical after the Committee has made its determination.
3.3 Participation in Employee Benefit Plans. The Executive
shall be permitted, during the Term, if an to the extent eligible, to
participate in any group life, hospitalization or disability insurance plan,
health program, pension plan or similar benefit plan of the Company, which may
be available to other executives of the Company generally, on the same terms as
such other executives.
3.4 Stock Options. for each of the first three years of the
Term and provided Executive remains employed by the Company, the Executive shall
be eligible to receive an option under the Vinci Stock Option Plan ("the Plan")
to purchase up to 1000 shares of Vinci stocks ("the Options"). Each Option shall
vest as follows: 50% [3] years after grant date and 50% [5] years after grant
date provided Executive remains in employment on such date. All other terms and
conditions of the Options shall be governed by the provisions of the Plan and
any stock option agreement thereunder as approved by the Committee.
3.5 Car Allowance. The Executive shall be entitled to a
monthly car allowance equal to $650.
3.6 Vacation. The Executive shall be entitled to twenty (20)
days of vacation per year.
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3.7 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.
4. Termination.
4.1 Termination Upon Death. If the Executive dies during the
Term, the Executive's legal representatives shall be entitled to receive payment
of the Executive's Base Salary, as adjusted, accrued bonus, unpaid vacation days
and any other earned or vested benefit set forth in Section 3 hereof for the
period ending on the last day of the month in which the death of the Executive
occurs. Notwithstanding any provision contained in the Plan to the contrary, in
the event of the Executive's death, all Options granted under the Plan that have
not become fully vested and exercisable prior tot he Executive's death, shall
become fully vested and exercisable as of the date of death and may be exercised
by the Executive's legal representatives for one year after the Executive's
death (or such longer period as may be provided under the Plan).
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 payment of the Executive's Base
Salary, as adjusted, accrued bonus, unpaid vacation days and any other earned or
vested benefits set forth in Section 3 hereof for the period ending on the date
such termination occurred. Notwithstanding any provision contained in the Plan
to the contrary, in the event of the Executive's termination of employment as a
result of a disability, all Options granted under the Plan that have not become
fully vested and exercisable prior to the Executive's termination of employment,
shall become fully vested and exercisable as of the date of termination and may
be exercised by the Executive or the Executive's legal representatives, as
applicable, for one year after the Executive's termination of employment (or
such longer period as may be provided under the Plan). Nothing in this Section
4.2 shall be deemed to in any way affect the Executive's right to participate in
any disability plan maintained by the Company and for which the Executive is
otherwise eligible.
4.3 Termination for Cause. The Executive's employment
hereunder may be terminated by the Company for "Cause" (as herein defined) at
any time. "Cause" shall mean with respect to the Executive, (a) the Executive's
willful 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 to, a felony, not including any vehicular driving offenses or (e)
willfully engaging in a criminal act or willful misconduct which is materially
detrimental to the Company's business, reputation, character or standing,
provided that, in the case of clauses (a) and (b), the Executive shall be
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entitled to written notice from the Company and 20 days to cure such deficiency.
To the extent that an Executive is subject to a non-competition and
confidentiality agreement, breach of such non-competition and confidentiality
agreement, shall constitute Cause under this Agreement.
Upon termination for Cause hereunder, the Executive shall be
entitled to receive payment of the Executive's Base Salary, as adjusted, other
earned or vested benefits set forth in Section 3 hereof and a pro rated bonus
through the date of termination.
4.4 Voluntary Termination. The Executive may upon at least
thirty (30) days prior written notice to the Company terminate employment
hereunder.
(a) Upon a voluntary termination other than for Good
Reason, the Executive shall be entitled to receive payment of the Executive's
Base Salary as adjusted, earned or vested benefits set forth in Section 3 hereof
and a pro rated bonus through the date of termination.
(b) Upon a voluntary termination for Good Reason, the
Executive shall be entitled to receive, (i) for a period of twelve months of
such termination, payment of his Base Salary, as adjusted other earned or vested
benefits set forth in Section 3 hereof and accrued vacation days, (ii) a pro
rated bonus to the date of termination and (iii) for the period of twelve months
after such voluntary termination for Good Reason, the Company shall arrange to
provide the Executive with life, disability, accident and group health insurance
benefits substantially similar to those which the Executive was receiving
immediately prior to the notice of termination. Benefits otherwise receivable by
the Executive pursuant to this provision (iii) shall be 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. Notwithstanding any provision
contained in the Plan to the contrary, in the event that the Executive
terminates his employment with Good Reason, all Options granted under the Plan
that have not become fully vested and exercisable prior to the Executive's
termination shall become fully vested and exercisable as of the date of
termination and may be exercised by the Executive for 3 months after termination
(or such longer period as may be provided under the Plan).
The term "Good Reason" shall mean: 1) a reduction in
Base Salary, as adjusted, or any agreed upon benefit under this Agreement
without the Executive's consent; provided, that the Company may at any time or
form time to time amend, modify, suspend or terminate any bonuses, 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; 2) a material change in the Executive's responsibilities, position,
duties, resources, benefits, reporting responsibilities or support personnel
assigned without his prior consent; or 3) a change in location of the
Executive's principal place of employment from the Dallas/Fort Worth, Texas,
area.
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4.5 Termination by the Company Other Than For Cause.
(a) The Company may upon at least ninety (90) days
prior written notice to the Executive terminate the Executive's employment
hereunder for a reason other than for Cause. 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) for a period of
twelve months of such termination of employment, payment of his Base Salary, as
adjusted other earned or vested benefits set forth in Section 3 hereof and
accrued vacation days and (ii) a pro rated bonus to the date of termination.
Notwithstanding any provision contained in the Plan to the contrary, in the
event that the Company terminates the Executive's employment other than for
Cause, all Options granted under the Plan that have not become fully exercisable
prior to the Executive's termination, shall become fully vested and exercisable
as of the date of termination and may be exercised by the Executive for 3 months
after termination (or such longer period as may be provided under the Plan).
(b) For the period of three months after any
termination pursuant to this Section 4.5, the Company shall arrange to provide
the Executive with life, disability, accident and group health insurance
benefits substantially similar to those which the Executive was receiving
immediately prior to the notice of termination. Benefits otherwise receivable by
the Executive pursuant to this paragraph (b) shall be reduced to the extent
comparable benefits are actually received by the Executive during the period
following the Executive's termination and any such benefits actually received by
the Executive shall be reported to the Company.
(c) Nothing contained in this Section 4.5 shall
prevent the Executive from receiving any and all benefits payable under any
severance benefit plan or program maintained by the Company to which the
Executive is entitled.
5. Restrictions and Obligations of the Executive.
5.1 Confidentiality. (a) During the course of the Executive's
employment by the Company, the Executive will have access to certain trade
secrets and confidential information relating to the Company, which is not
readily available from sources outside the Company. The confidential and
proprietary information and, in any material respect, trade secrets of the
Company are among its most valuable assets, including but not limited to, its
customer and vendor lists, database, engineering, computer programs, frameworks,
models, its marketing programs, its sales, financial, marketing, training and
technical information, and any other information, whether communicated orally,
electronically, in writing or in other tangible forms concerning how the Company
creates, develops, acquires or maintains its products and marketing plans,
targets its potential customers and operates its retail and other businesses.
The Company invested, and continues to invest, considerable amounts of time and
money in its process, technology, know-how, obtaining and developing the
goodwill of its customers its other external relationships, its data systems and
data bases, and all the information described above (hereinafter collectively
referred to as "Confidential Information"), and any misappropriation or
unauthorized disclosure of Confidential Information in any form would
irreparably harm the Company. The Executive acknowledges that such Confidential
Information constitutes valuable, highly confidential, special and unique
property of the Company. The Executive shall hold in a fiduciary capacity for
the benefit of the Company all Confidential Information relating to the
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company and its business, which shall have been obtained by the Executive during
the Executive's employment by the Company and which shall not be or become
public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). Except as required by law or an order
of a court or governmental agency with jurisdiction, the Executive shall not,
during the period the Executive is employed by the Company or at any time
thereafter, disclose any Confidential Information, directly or indirectly, to
any person or entity for any reason or purpose whatsoever, nor shall the
Executive use it in any way, except as necessary in the course of the
Executive's employment with the Company. The Executive shall take all reasonable
steps to safeguard the Confidential Information and to protect it against
disclosure, misuse, espionage, loss and theft. The Executive understands and
agrees that the Executive shall acquire no rights to any such Confidential
Information.
(b) All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the Business (for the purposes of this
Agreement, "Business" shall be as defined in any non competition and
confidentiality agreement that is established between the Executive and the
Company, 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 of Hire. During the Term and for and for
a three 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 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
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(provided that if the Executive intends to solicit any such party for any other
purpose, it shall notify the Company of such intention) or (b) employ or
solicit, directly or indirectly, for employment any person who is an employee of
the Company or any of its subsidiaries or who was an employee of the Company or
any of its subsidiaries at any time during the 12 month period immediately prior
to any such solicitation or employment. Notwithstanding the foregoing, if the
Executive is subject to any non-competition and confidentiality agreement that
is established between the Executive and the Company, the provisions of such
agreement shall govern non-solicitation and hiring.
5.3 Non-Competition. The Executive shall be bound by the terms
of the non-competition and confidentiality agreement established between the
Executive and the Company, attached hereto as Appendix A.
5.4 Reputation. The Executive agrees not to engage in any act
that is intended, or may reasonably be 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.
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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 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, 4 days after the date of mailing, as follows:
(a) If the Company, to:
[WORLDWIDE FLIGHT SERVICES, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTENTION:
TELEPHONE:
FAX:
WITH A COPY TO:
-------------------
ATTENTION:
TELEPHONE:
FAX:
(b) If the Executive, to his home address set forth
in the records of the Company.
6.2 Entire Agreement. Except as provided in Section 5 hereof,
this Agreement contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto, including, but not limited to, the Executive Employment
Agreement between Worldwide Flight Services, Inc. and the Executive, dated as of
June 1, 2001.
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.
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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 Texas applicable to
agreements made and not to be performed entirely within such state, without
regard to conflicts of laws principles.
6.6 Assignability. This Agreement, and the Executive's rights
and 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 that will substantially carry on the business of the Company;
provided, however, that all terms, agreements and provisions of this Agreement
shall remain in effect after such assignment..
6.7 Counterparts. This Agreement may be executed in 2 or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
6.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
6.9 Remedies. Specific Performance. The parties hereto hereby
acknowledge that the provisions of Section 5 are reasonable and necessary for
the protection of the Company. In addition, the Executive further acknowledges
that the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company will be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining the
Executive from any actual or threatened breach of such covenants. In addition,
without limiting the Company's remedies for any breach of any restriction on the
Executive set forth in Section 5, except as required by law, the Executive shall
not be entitled to any payments set forth in Section 4 hereof if the Executive
breaches any of the covenants applicable to the Executive contained in Section
5, the Executive will immediately return to the Company any such payments
previously received under Section 4 upon such a breach, and, in the event of
such breach, the Company will have no obligation to pay any of the amounts that
remain payable by the Company under Section 4.
6.10 Tax Gross-Up. In the event that any payment made to the
Executive pursuant to this Agreement with the Company becomes subject to excise
taxes under Section 4999 of the Code, the Company will pay to the Executive the
amount of such excise taxes plus all federal, state and local taxes applicable
to the Company's payment of such excise taxes including any additional excise
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taxes due under Section 4999 of the Code with respect to payments made pursuant
to this Agreement.
6.10 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, provision, 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.
6.11 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.
6.12 Attorney Fees. The prevailing party in any litigation
between the Company and the Executive with respect to this Agreement shall be
entitled to an award of the reasonable legal fees and disbursements incurred by
such party with respect to third party claims.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have executed this Agreement as of the day and year first
above mentioned.
EXECUTIVE
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: