Delaware | 001-31617 | 72-0679819 |
(State or other jurisdiction of | (Commission File Number) | (IRS Employer |
incorporation or organization) | Identification Number) | |
2103 City West Blvd., | 77042 | |
4th Floor | (Zip Code) | |
Houston, Texas | ||
(Address of principal executive offices) |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Restricted | Performance Cash | ||
Name | Stock Optons | Stock Units | (at target) |
Jonathan E. Baliff | 191,477 | 68,413 | $1,096,667 |
L. Don Miller | 83,047 | 29,672 | $ 475,644 |
Chet Akiri | 58,665 | 20,961 | $ 336,000 |
Hilary S. Ware | 57,589 | 20,576 | $ 329 838 |
Name | Target Level | Maximum | |||||||
Jonathan E. Baliff | 100% | 250% | |||||||
L. Don Miller | 75% | 187.5% | |||||||
Chet Akiri | 65% | 162.5% | |||||||
Hilary S. Ware | 65% | 162.5% |
Name | Maintained Base Salary (June 7, 2016) |
Jonathan E. Baliff | $700,000 |
L. Don Miller | $425,000 |
Chet Akiri | $400,000 |
Hilary S. Ware | $412,298 |
• | Cash Payments |
◦ | A lump sum cash payment of $783,923 will be paid to Mr. Akel on or prior to June 17, 2016 (the “Payment Date”) as severance pay equal to twelve months salary, his target bonus for fiscal year 2017 and a pro rated portion of his target bonus covering the period from April 1, 2016 to his Effective Departure Date; and |
◦ | A separate payment of $36,605 will be paid to Mr. Akel on or prior to the Payment Date as payment for unused vacation days. |
• | Equity Treatment and Performance Awards |
◦ | Mr. Akel’s unvested stock options and unvested restricted stock unit grants awarded in June 2013, June 2014 and June 2015 shall fully vest on the Payment Date; |
◦ | Mr. Akel’s unvested restricted stock units that were granted to him in February 2014 as a management retention award with a scheduled cliff vesting date in February 2017 will be forfeited in full per the terms of the award as a result of his departure; |
◦ | Mr. Akel’s performance cash awards that were awarded in June 2014 and June 2015 shall become fully vested and earned at the target performance level, and shall be paid to Mr. Akel on the Payment Date; and |
◦ | Mr. Akel’s performance cash award that was awarded in June 2013 with a three year performance period that ended March 31, 2016 that was calculated per the terms of the award resulting in $549,357 being paid to him on June 17, 2016. |
• | Miscellaneous Benefits |
◦ | Mr. Akel will also receive outplacement services for up to twelve months following the Effective Departure Date; |
◦ | The Company will make a pro rata 401K plan contribution for the time Mr. Akel was employed by the Company during the current plan year through the Effective Departure Date; and |
◦ | The Company will reimburse Mr. Akel and his beneficiaries for COBRA insurance coverage for up to 18 months starting on the first day of the month following the Effective Departure Date. |
(1) | Termination of Employment. If your employment terminates for any reason other than death, Disability or retirement (as those terms are used below) after the Annual General Meeting Date, your Option will expire as to any unvested and not yet exercisable installments of the Option on the date of the termination of your employment and no additional installments of your Option will become exercisable, except as otherwise provided in the Company’s Management Severance Benefits Plan for U.S. Employees and Management Severance Benefits Plan for Non-U.S. Employees, as applicable. Your Option will be limited to only the number of Shares of Common Stock which you were entitled to purchase under the Option on the date of the termination of your employment and will remain exercisable for that number of Shares for the earlier of 12 months following the date of your termination of employment or the Expiration Date. Notwithstanding the foregoing, in the event that your employment terminates for any reason other than death, Disability or retirement (as those terms are used below) prior to the Annual General Meeting Date, your Option will be forfeited in full and no portion thereof shall vest upon your termination. |
(2) | Retirement. If your employment terminates no sooner than six months after the date of this award by reason of retirement under a retirement program of the Company or one of its subsidiaries approved by the committee after you have attained age 62 and have completed five continuous years of service or your combined age and length of service is 80 or above (as determined by the Committee), your Option will become vested and fully exercisable as follows. An Option granted more than 12 months prior to your termination date will become fully vested and exercisable until the Expiration Date. An Option granted less than 12 months prior to your termination date will be prorated by multiplying the number of shares subject to the option by the ratio of the number of months worked from the Award Date to your date of termination over twelve. The option will become vested and exercisable for the resulting number of shares until the Expiration Date. |
(3) | Death or Disability. If your employment terminates by reason of Disability, your Option will become 100% vested and fully exercisable as to all of the Shares covered by the Option and will remain exercisable until the Expiration Date. If your employment terminates by reason of your death, your Option will become 100% vested and fully exercisable as to all of the Shares covered by the Option and will remain exercisable by your beneficiary in accordance with the Plan until the Expiration Date. For purposes of this Award Terms Summary, Disability shall have the meaning given that term by the group disability insurance, if any, maintained by the Company for its employees or otherwise shall mean your complete inability, with or without a reasonable accommodation, to perform your duties with the Company on a full-time basis as a result of physical or mental illness or personal injury you have incurred for more than 12 weeks in any 52 week period, whether consecutive or not, as determined by an independent physician selected with your approval and the approval of the Company. |
(4) | Adjustments by the Committee. The Committee may, in its sole discretion, exercise before or after your termination of employment, declare all or any portion of your Option immediately exercisable and/or make any other modification as permitted under the Plan. |
(a) | The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of Shares representing 35% or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this clause (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation or other entity controlled by the Company, or (iv) any acquisition by any corporation or other entity pursuant to a transaction which complies with subclauses (i), (ii) and (iii) of clause (c) below; or |
(b) | Individuals who, as of the Effective Date of the Plan, are members of the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors of the Company; provided, however, that for purposes of this clause (b), any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s |
(c) | Consummation of a reorganization, merger, conversion or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the corporation or other entity resulting from such Business Combination (including, without limitation, a corporation or other entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Voting Securities, (ii) no Person (excluding any corporation or other entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation or other entity resulting from such Business Combination) beneficially owns, directly or indirectly, 35% or more of the combined voting power of the then outstanding voting securities of the corporation or other entity resulting from such Business Combination except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation or other entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board of Directors of the Company, providing for such Business Combination; or |
(d) | Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company other than in connection with the transfer of all or substantially all of the assets of the Company to an affiliate or a Subsidiary of the Company. |
Percentile Rank | Percentage | Level |
75 | 200.00% | Maximum |
67 | 166.70% | |
58 | 133.30% | |
50 | 100.00% | Target |
42 | 83.30% | |
33 | 66.70% | |
25 | 50.00% | Entry |
Below 25th | ZERO |
• | Certain designated officers and employees of the Company and participating affiliates may be eligible to participate in the Company’s Annual Incentive Compensation Plan (the “Plan”). In order to be eligible to participate in the Plan, an officer or employee must first be actively employed in a bonus eligible position for a minimum of three months. Additionally, prospective Plan participants must be recommended to and approved by the CEO, except for the Company’s executive officers who must be recommended to and approved by the Compensation Committee in order to participate in the Plan. |
• | Employees who are approved for participation in the Plan and employed by the Company after the commencement of the Plan year will be eligible to participate in the Plan on a pro-rata basis for such Plan year. Employees who were already Plan participants at the beginning of the Plan year, but whose reporting line has changed from Region to Corporate, Corporate to Region or between Regions during the Plan year will be subject to the applicable KPIs and receive resulting compensation on a pro-rata basis for such Plan year. |
• | KPIs are selected and weighted to give emphasis to performance for which Plan participants have the most direct control. KPIs may vary among Plan participants and may change from year to year. |
• | The Compensation Committee must approve the KPIs, weights and targets as well as any changes thereto. |
• | The AA and TRIR targets for all Plan participants are measured at the consolidated Corporate level. |
Ø | If during the Plan year or the applicable portion thereof for newly acquired or disposed of consolidated affiliates, the Company’s or any of its consolidated affiliate’s air operations, including the Company’s SAR operations, the operations of Bristow Academy, Eastern Airways and Airnorth and the operations of any entity that becomes a consolidated affiliate during the Plan year, results in a “Class A” Accident pursuant to the recommended classification by the Bristow Safety Review Board and ultimate determination by the Compensation Committee, at its sole discretion, the portion of any incentive award hereunder attributable to the safety performance component of AA will be zero for all Plan participants. |
Ø | If during the Plan year or the applicable portion thereof for newly acquired or disposed of consolidated affiliates, the Company’s or any of its consolidated affiliate’s air operations, including the Company’s SAR operations, the operations of Bristow Academy, Eastern Airways and Airnorth, and the operations of any entity that becomes a consolidated affiliate during the Plan year, results in a “Class B” Accident pursuant to the recommended classification by the Bristow Safety Review Board and ultimate determination by the Compensation Committee, at its sole discretion, the portion of any incentive award hereunder attributable to the safety performance component of AA will be as set forth in Attachment I for all Plan participants. |
Ø | If during the Plan year or the applicable portion thereof for newly acquired or disposed of consolidated affiliates, the Company’s or any of its consolidated affiliate’s administrative, ground or air operations, including the Company’s SAR operations, the operations of Bristow Academy, Eastern Airways and Airnorth, and the operations of any entity that becomes a consolidated affiliate during the Plan year, results in the fatality of an employee, passenger, bystander or anyone involved in such operations, the portion of any incentive award hereunder attributable to the safety performance components of AA and TRIR will be zero for all Plan participants; provided however that any crewman/casualty fatality sustained on SAR flights where ‘life and death’ is at stake may be excluded by recommendation of the Bristow Safety Review Board and at the discretion of the Compensation Committee. |
Ø | If during the Plan year or the applicable portion thereof for newly acquired consolidated affiliates, the Company’s or any of its consolidated affiliate’s administrative, ground or air operations, including the Company’s SAR operations, the operations of Bristow Academy, Eastern Airways and Airnorth, and the operations of any entity that becomes a consolidated affiliate during the Plan year, results in a Permanent Disability Case for an employee, passenger, bystander or anyone involved in such operations, the portion of any incentive award hereunder attributable to the safety performance component of TRIR will be zero for all Plan participants; provided however that any crewman/casualty permanent disability sustained on SAR flights where ‘life and death’ is at stake may be excluded by recommendation of the Bristow Safety Review Board and at the discretion of the Compensation Committee. |
Ø | If the Company acquires any new consolidated affiliate during the Plan year, the TRIR performance levels for the consolidated affiliate will be based on the percentage reduction |
• | For the financial KPI, the BVA target for Corporate participants will be compared against improvement in consolidated Corporate BVA. The target for Region level participants will be compared against both improvement in Corporate BVA (weighted 75%) and improvement in Region BVA (weighted 25%). |
• | Each Plan participant will have a discretionary “individual performance” component, and will be evaluated based on specific individual objectives (scorecard) and an overall performance evaluation of their contribution to the organization as well as the performance of the relevant Region, Bristow Academy, or Corporate, as applicable. |
• | The performance measures and their weightings for all Plan participants in fiscal year 2016 will be BVA (50%), AA (12.5%), TRIR (12.5%) and Individual Performance (25%). |
• | Each Plan participant will receive an individual Incentive Award Determination Worksheet that contains his or her specific incentive award opportunity, KPIs and performance goals. |
• | Attachment I summarizes the safety KPI targets for fiscal year 2017. |
Salary Grade | Target |
11 | 45% |
10 | 45% |
9 | 40% |
8 | 35% |
7 | 30% |
6 | 25% |
5 | 20% |
3-4 | 15% |
1-2 | 10% |
Aircraft Accident Classification | Aircraft Accident Damage | Aircraft Accident Injury |
A | Hull Loss | Fatal Injury/Multiple Serious Injuries |
B | OEM Repair | Single Serious Injury/Multiple Minor Injuries |
C | Major Repair | Minor Injury |
D | Minor Repair | First Aid Case |
• | Aircraft Accident Damage shall mean aircraft damage sustained during events classified as an ‘Accident’ under ICAO Annex 13. All SAR and medical emergency operational and training flights will be included. Training flights at Bristow Academy will be reviewed individually by the Company’s Global Safety department to ascertain ‘preventability’ and cost of repair vs. aircraft “write-off’. While “ditching” may result in a hull loss, such events will not in themselves determine the event classification. |
• | Aircraft Accident Injury shall mean those personal injuries sustained by staff and/or passengers during flight operations. Crewman/casualty injury sustained on SAR and medical emergency flights where ‘life and death’ is at stake will not be included. |
• | First Aid Case shall mean a case in which immediate and temporary care is given to a victim of an accident or sudden illness before (or in substitution of) the services of a physician or primary attention is provided by a physician which could have been administered by a qualified first aid provider. For purposes of this definition, first aid may include any single treatment and subsequent observation of minor scratches, cuts, bums, splinters, that do not normally require medical care by a physician. Such treatment and observation is considered a First Aid Case even if provided by a physician or registered professional personnel. |
• | Hull Loss shall mean the aircraft is destroyed or damaged beyond economical repair. |
• | Major Repair shall mean repair work that is required on an aircraft following an accident: |
(b) | where the repair requires more than a visual inspection and is not covered by routine maintenance programs. |
• | Minor Injury shall mean an injury which is sustained by a person during an aircraft accident or incident event which falls between the definition above of “First Aid Case” and below of “Serious Injury”. |
• | Original Equipment Manufacturer (“OEM”) Repair shall mean repair work that is required on an aircraft following an accident that requires input from the OEM in terms of design, execution or approval of the work. |
• | Serious Injury shall mean an injury which is sustained by a person during an aircraft accident or personal injury event which results in: |
(a) | hospitalization for more than 48 hours commencing within seven days |
(b) | a fracture of any bone (except simple fractures of fingers, toes, or nose); |
(c) | lacerations which cause nerve, muscle or tendon damage or severe hemorrhage; |
(e) | second or third degree burns or any burns affecting more than five percent of the body surface; or |
(f) | verified exposure to infectious substances or injurious radiation. |
• | Medical Treatment Case shall mean a case involving any work related injury or illness that does not result in any days away from work, or one or more days of restricted work or job transfer, and where the employee receives medical treatment beyond first aid which can only be administered by a physician (including a dentist or physiotherapist) or on the direction of a physician by medically qualified personnel. For the avoidance of doubt, “medical treatment” shall not include first aid even if provided by a physician or registered professional personnel. |
• | Permanent Total Disability Case shall mean a case involving any work related injury that permanently incapacitates a person and results in termination of employment. |
• | Restricted Work Time Case shall mean a case involving any work related injury that renders the injured person temporarily unable to perform all, but still some, of their normal work on any day after the day on which the injury occurred. |
• | Gross Cash Flow is total revenue, less total operating expense (excluding depreciation and amortization) plus rent expense for the period less taxes, plus (minus) an adjustment for the proportional consolidation of any large strategic equity investment’s gross cash flow and excluding special items, if any. |
• | Gross Operating Assets is a measure of the gross tangible assets deployed into the business to generate the Company’s Gross Cash Flow. Gross Operating Assets include net working capital (excluding cash), gross property, plant and equipment (including the fleet), other non-current tangible assets, capitalized operating leases and an adjustment for the gain or losses on the sale of aircraft. Gross operating assets will also be adjusted for the proportional consolidation of any large strategic equity investment’s gross operating assets. |
• | The Required Return for any fiscal year is fixed at 10.5% (2.625% per quarter). The capital charge is calculated quarterly based on the ending balance and the full fiscal year’s capital charge is the sum of the four quarters. The capital charge is defined as Gross Operating Assets times the Required Return. |
• | The minimum, expected and maximum performance levels for each safety performance metric of AA and TRIR for fiscal year 2017 are set forth in Attachment I. The payoff schedule is a straight line between and around these points. |
• | The BVA target for fiscal year 2017 is equal to the entry level BVA for fiscal year 2016 (as adjusted for new goodwill and intangibles). Achieving this level of performance at both Corporate and the Regions would imply a BVA multiple of 1.0 times bonus target. |
• | If BVA improvement is above or below zero, the BVA multiplier will be above or below 1.0 times bonus target. Each Region will be assigned a bonus sensitivity factor each year set at 1% of Gross Operating Assets at the prior year end (Regions will be 3% of Gross Operating assets at the prior year end). This determines the slope of the curve. If BVA declines by the bonus sensitivity factor, the BVA multiple will drop to 0.0 times bonus target. If BVA increases by the bonus sensitivity factor, the BVA multiple will rise to 2.0 times bonus target. The payoff schedule is a straight line between and around these points. |
• | The Compensation Committee reserves the right to adjust performance goals and resulting payout multiples for significant acquisitions, divestitures or events that were not contemplated when the performance goals and payout multiples were initially set. |
• | Once the Plan year has been completed, the Company’s safety and financial performance will be determined. |
• | The actual incentive award earned by each Plan participant will be equal to the sum of the incentive awards earned for each KPI, including individual performance. |
• | The BVA bonus multiple is capped at 3.0 times bonus target and has a floor of 0.0 times bonus target. In a year where the bonus multiple is above the cap or below the floor, it is expected that the benchmark for measuring the following year change in BVA is the BVA that would have resulted in exactly reaching the cap or floor. |
• | Incentive awards hereunder will be paid as soon as practical after the end of the Plan year and completion and certification of the outside audit of the Company’s financial results. Awards to U.S. taxpayers will be paid no later than 75 days after the end of the applicable fiscal year. All other awards will be paid as soon as administratively feasible, but no later than the end of the month following approval by the Compensation Committee. |
• | A Plan participant will not receive his/her incentive award until they have signed a certification of compliance under the Code of Business Integrity. The Company may recover all or a portion of the incentive award if it is found that the certification was signed with the knowledge of, or participation in, any act determined by the Company’s Compliance Committee to be in violation of the Code of Business Integrity. |
• | The Compensation Committee approves the Plan, with day-to-day responsibility for administration delegated to Company management. The Compensation Committee will interpret the Plan and make appropriate adjustments as necessary. All interpretations made by the Compensation Committee are final. |
• | The Compensation Committee will certify the performance results of the Company and the total amount of incentive awards to be paid at the end of the Plan year. |
• | The incentive awards for the applicable Plan year will be accrued and charged as an expense to the Company, before determining the financial performance under the Plan. |
• | Except as provided below, Plan participants whose employment by the Company is terminated for any reason prior to the payment of any incentive award contemplated hereunder will forfeit such award in full. |
• | Any Plan participant whose employment is terminated without cause may be eligible to receive a pro-rated award pursuant to the terms of the Company’s Management Severance Benefits Plan for U.S. Employees dated June 4, 2014 and the Company’s Management Severance Benefits Plan for Non-U.S. Employees dated June 4, 2014. |
• | Any Plan participant whose employment is terminated for reason of death, disability or normal retirement, may be eligible to receive a pro-rated award, subject to the discretion of Company management. |
• | The Compensation Committee, in its sole discretion, may make special incentive awards to any individual in order to recognize special performance or contributions. |
• | This Plan has been adopted pursuant to the Company’s 2007 Long Term Incentive Plan, as amended from time to time, and will be administered by the Compensation Committee in accordance with the provisions thereof. |
SAFETY KPIs | Minimum(1) | Expected | Maximum(2) |
TRIR(3) | 0.24 | 0.20 | 0.14 |
Performance Score | 0.050 | 0.125 | 0.250 |
AA Class A Accidents(4) | 0 | 0 | 0 |
AA Class B Accidents(4) | 2 | 1 | 0 |
Performance Score | 0.050 | 0.125 | 0.250 |
(1) | Performance resulting in safety KPIs worse than the minimum amounts set forth above will result in a performance score of zero and no payment being provided for that portion of the incentive award. |
(2) | Performance resulting in safety KPIs better than the maximum KPIs set forth above will result in the highest applicable performance score being applied to that portion of the incentive award. |
(3) | TRIR will be measured based on the performance levels of the Company and its consolidated affiliates as of April 1, 2016, as adjusted on a prorated basis (assuming a 365-day year) for the TRIR relative performance of any disposed of consolidated affiliate or newly acquired consolidated affiliate during fiscal year 2017 with such calculation performed by the Bristow Safety Review Board and ultimately determined by the Compensation Committee. |
(4) | AA will be measured based on the performance levels of the Company, its consolidated affiliates as of April 1, 2016 and the performance levels for the applicable period of time during fiscal year 2017 that disposed of or acquired affiliates were deemed to be consolidated affiliates. |
SAFETY KPI | Minimum(1) | Expected | Maximum(2) |
TRIR | 10% reduction | 20% reduction | 30% reduction |
Performance Score | 0.050 | 0.125 | 0.250 |
(1) | Performance resulting in TRIR worse than the minimum amounts set forth above will result in a performance score of zero and no payment being provided for that portion of the incentive award attributable to the applicable consolidated affiliate. |
(2) | Performance resulting in TRIR better than the maximum TRIR set forth above will result in the highest applicable performance score being applied to that portion of the incentive award attributable to the applicable consolidated affiliate. The payoff schedule is a straight line between and around these points. |
June , 2016 | |
Signature of Officer | Date |
Name (please print) |
A. | 1.0 X Annual Salary of $439,189 | = | $ 439,189 |
B. | 1.0 X Full Target Bonus of $329,392 | = | $ 329,392 |
Total | $ 768,581 |
(a) | Confidential Information. During the course of Executive’s employment with the Company, the Company has provided its confidential and trade secret information to the Executive, and the Executive agreed and continues to agree to hold in a fiduciary capacity for the benefit of the Company and the Affiliated Group, all Confidential Information; provided however, that the following shall not constitute confidential and proprietary information: (1) information that Executive can demonstrate was already known to him prior to the commencement of his employment with the Company, (ii) information that is in or has entered the public domain through no breach of this Agreement or other wrongful act of Executive, and (iii) information that has been legally received by Executive from a third party who is not under any obligation of confidentiality with respect to such information. The Executive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the Company and the Affiliated Group, except with the prior written consent of the Company, or as otherwise required by law or legal process or governmental inquiry or as such disclosure or use may be required in the course of the Executive performing the Executive’s duties and responsibilities hereunder. Notwithstanding the foregoing provisions, if the Executive is required to disclose any such confidential or proprietary information pursuant to applicable law or governmental inquiry or a subpoena or court order, the Executive shall promptly notify the Company in writing of any such requirement so that the Company or the appropriate member of the Affiliated Group may at its sole cost seek an appropriate protective order or other appropriate remedy. The Executive shall reasonably cooperate with the Company and the Affiliated Group to obtain such a protective order or other remedy. If such order or other remedy is not obtained prior to the time the Executive is required to make the disclosure, then unless the Company waives compliance with the provisions hereof, the Executive shall disclose only that portion of the confidential or proprietary |
(b) | Work Product and Inventions. The Company and/or its nominees or assigns shall own all right, title and interest in and to the Developments, whether or not patentable, that were reduced to practice or registrable under patent, copyright, trademark or other intellectual property law anywhere in the world, made, authored, discovered, reduced to practice, conceived, created, developed or otherwise obtained by the Executive (alone or jointly with others) during the Executive’s employment with the Company and the Affiliated Group, and arising from or relating to such employment or the business of the Company or of other member of the Affiliated Group (whether during business hours or otherwise, and whether on the premises of using the facilities or materials of the Company or of other members of the Affiliated Group or otherwise). On or prior to the Termination Date, the Executive shall promptly and fully disclose to the Company and to no one else all Developments, and hereby assigns to the Company without further compensation all right, title and interest the Executive has or may have in any Developments, and all patents, copyrights, or other intellectual property rights relating thereto, and agrees that the Executive has not acquired and shall not acquire any rights during the course of the Executive’s employment with the Affiliated Group or thereafter with respect to any Developments. |
(c) | Non-Solicitation of Affiliated Group Employees. The Executive shall not, at any time during the Restricted Period, without the prior written consent of the Company, directly or indirectly, solicit, recruit, or employ (whether as an employee, officer, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve months, an employee, representative, officer or director of the Company or any member of the Affiliated Group. Further, during the Restricted Period, the Executive shall not take any action that could reasonably be expected to have the effect of directly encouraging or inducing any person to cease their relationship with the Company or any member of the Affiliated Group for any reason. A general employment advertisement by an entity of which the Executive is a part |
(d) | Non-Competition. In consideration of the benefits contemplated in Section 2 through Section 8 herein to be provided by the Company to the Executive, the Executive agrees as follows: |
(i) | Areas Other Than Louisiana. Except with respect to competition in the State of Louisiana, or with respect to competition in or above the waters off the State of Louisiana in the areas specified in subparagraph (B) of Section 10(d)(ii) of this Agreement, during the Restricted Period, the Executive shall not, either directly or indirectly, compete with the business of the Company anywhere in the world where the Company or any member of the Affiliated Group conducts business by (1) becoming an officer, agent, employee, partner or director of any other corporation, partnership, limited liability company or other entity, or otherwise render services (including consulting or advisory services) to or assist or hold an interest (except as a less than 2-percent shareholder of a publicly traded corporation or as a less than 5-percent shareholder of a corporation that is not publicly traded) in any business similar to the business of the Company or any member of the Affiliated Group, or from soliciting for such similar business the customers of the business of the Company or any member of the Affiliated Group, or (2) soliciting, servicing, or accepting the business of (A) any active customer of the Company or any member of the Affiliated Group, or (B) any person or entity who is or was at any time during the previous twelve months a customer of the Company or any member of the Affiliated Group, provided that such business is competitive with any business of the Company or any member of the Affiliated Group. Company and Executive agree only the following entities are competitive or similar business: CHC Group (including any advisors, creditors’ committees, trustees, or other entities related to CHC Group’s chapter 11 bankruptcy reorganization), Avincis Group, PHI Group, Era Group, Omni Group, Lider Taxi Aerero S/A—Air Brasil, Cougar Helicopters Inc., Westar Aviation Services SDN BHD, Caverton Helicoptors Limited, NHV Group, HNZ Global, Babcock International Group PLC, AAR Corp., Milestone Aviation Group, Waypoint Leasing Limited, Lobo Leasing Limited, and any other entity that is a successor to the business of any of the foregoing listed companies. The provisions of Article 10(d)(i) shall not apply to any other entity. |
(ii) | Louisiana. With respect to competition in the State of Louisiana, or with respect to competition in or above the waters specified in subparagraph (B) of this Section 10(d)(ii). |
A. | Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the |
B. | Executive, during the Restricted Period, agrees to refrain from carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group or from soliciting for such similar business the customers of the business of the Company or any member of the Affiliated Group in or above the waters of the Gulf of Mexico adjacent to the Parishes of Lafayette, Vermillion, Cameron, Iberia, St. Mary, Plaquemines, Terrebonne, Lafourche, St. Bernard, Orleans, Calcasieu and Jefferson in the State of Louisiana, so long as the Company or any member of the Affiliated Group carries on a like business therein during the Restricted Period. |
C. | All non-capitalized terms in subparagraphs (A) and (B) of this Section 10(d)(ii) are intended to and shall have the same meanings that those terms (to the extent they appear therein) have in La. R.S. 23:921.C. Subject to and only to the extent not inconsistent with the foregoing sentence, the Parties understand the following phrases to have the following meanings: |
(1) | The phrases “carrying on or engaging in a business similar to the business of the Company or any member of the Affiliated Group” and “any business similar to the business of the Company or any member of the Affiliated Group” includes and is limited to engaging, as principal, agent, trustee, or through the agency of any corporation, partnership, limited liability company, association or agent or agency, in any business that conducts an offshore oil and gas helicopter or fixed wing service business in competition with the Company or any member of the Affiliated Group or being the owner (except as a less than 2-percent direct shareholder of a publicly traded corporation or as a less than 5-percent direct shareholder of a corporation that is not publicly traded) of any interest in any corporation or other entity, or an officer, director, or employee of any corporation or other entity (other than the Company or any member of the Affiliated Group), or a member or employee or any partnership, or employee of any other business that conducts an offshore oil and gas |
(2) | The phrase “a similar business to the business of the Company or any member of the Affiliated Group” means an offshore oil and gas helicopter or fixed wing service business. |
(3) | The phrase “carries on a like business” includes, without limitation, actions taken by or through a wholly-owned subsidiary or other affiliated corporation or entity. |
(4) | Company and Executive agree only the following entities are a similar or like business as defined in Article 10(d)(ii)(C) (2) and (3): CHC Group (including any advisors, creditors’ committees, trustees, or other entities related to CHC Group’s chapter 11 bankruptcy reorganization), Avincis Group, PHI Group, Era Group, Omni Group, Lider Taxi Aerero S/A—Air Brasil, Cougar Helicopters Inc., Westar Aviation Services SDN BHD, Caverton Helicoptors Limited, NHV Group, HNZ Global, Babcock International Group PLC, AAR Corp., |
D. | Notwithstanding any other provision of this Agreement, Section 10(d)(ii) of this Agreement shall not apply with respect to any geographic area outside of the geographic territory expressly set forth in this Section 10(d)(ii). |
(e) | Assistance. The Executive agrees that after the Termination Date, upon request by the Company, the Executive will assist the Company and the Affiliated Group in the defense of any claims, or potential claims that may be made or threatened to be made against the Company and/or any member of the Affiliated Group in any Proceeding, and will assist the Company and the Affiliated Group in the prosecution of any claims that may be made by the Company and/or any member of the Affiliated Group in any Proceeding, to the extent that such claims may relate to the Executive’s employment or the period of the Executive’s employment by the Company. The Executive agrees, unless precluded by law, to promptly inform the Company if the Executive is asked to participate (or otherwise become involved) in any Proceeding involving such claims or potential claims. The Executive also agrees, unless precluded by law, to promptly inform the Company if the Executive is asked to assist in any investigation (whether governmental or otherwise) of the Company and/or any member of the Affiliated Group (or their actions), regardless of whether a lawsuit has then been filed against the Company and/or any member of the Affiliated Group with respect to such investigation. The Executive agrees to fully and completely cooperate with any investigations conducted by or on behalf of the Company and for any member of the Affiliated Group from time to time. The Company agrees to reimburse the Executive for all of the Executive’s reasonable out-of-pocket expenses associated with such assistance, including travel expenses and any attorneys’ fees, and shall pay a per diem fee of $500 per hour (the “Per Diem Rate”) for the Executive’s service. In addition, the Executive agrees to provide such services as are reasonably requested by the Company to assist any successor to the Executive in the transition of duties and responsibilities to such successor. Any services or assistance contemplated in this Section 10(e) shall be at mutually agreed to and convenient times and paid at the Per Diem Rate. |
(f) | Remedies. The Executive acknowledges and agrees that the terms of this Section 10 (i) are reasonable in geographic and temporal scope and (ii) are necessary to protect legitimate proprietary and business interests of the Company in, inter alia, near permanent customer relationships and confidential information. The Executive further acknowledges and agrees that (x) the Executive’s breach of the provisions of this Section 10 will cause the Company irreparable harm, which cannot be adequately compensated by money damages, and (y) if the Company elects to prevent |
Grant Date | Option Price | Options Remaining Exercisable | Options Unvested as of the Effective Date and Accelerating on the Termination Date | Option Expiration | ||||||||||||
5/25/2012 | $ | 43.38 | 15,045 | 6/19/2017 | ||||||||||||
6/6/2013 | $ | 62.65 | 16,751 | 5,584 | 6/19/2017 | |||||||||||
6/4/2014 | $ | 74.37 | 24,491 | 16,328 | 6/19/2017 | |||||||||||
6/4/2015 | $ | 58.17 | 49,146 | 49,146 | 6/19/2017 |
Grant Date | RSUs Granted | RSUs Subject to Accelerated Vesting | ||||||
6/6/2013 | 6,365 | 6,365 | ||||||
6/4/2014 | 5,902 | 5,902 | ||||||
6/4/2015 | 9,327 | 9,327 |
Grant Date | Actual Amount | ||||||
6/6/2013 | $549,356.81 | ||||||
Grant Date | Target Amount | ||||||
6/4/2014 | $ | 439,189 | |||||
6/4/2015 | $ | 548,986 | |||||
K. Jeremy Akel | ||
Witness | ||
Name: | ||
Date: |
Age of officer | # Released | # Not Released |
42 | 0 | 1 |
43 | 0 | 1 |
44 | 0 | 1 |
47 | 1 | 0 |
48 | 0 | 1 |
52 | 0 | 1 |
53 | 0 | 1 |
55 | 0 | 1 |
58 | 1 | 2 |
59 | 0 | 2 |
60 | 0 | 1 |
64 | 1 | 0 |
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