EXHIBIT 10.107
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered
into as of January 1, 2004 ("Effective Date") by and between TIMCO AVIATION
SERVICES, INC. ("TIMCO"), a Delaware corporation, and XXX XXXXXXX (the
"Employee").
RECITALS
TIMCO'S subsidiary, Triad International Maintenance Corporation, currently
employs Employee pursuant to that certain Employment Agreement, dated effective
as of September 12, 2001 (the "Old Agreement");
TIMCO wishes to amend and restate the Old Agreement and to employ the Employee
on the terms and conditions set forth in this Agreement.
In consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement, the parties hereto agree as follows:
1. Agreement to Supercede Old Agreement. This Agreement shall supercede
the Old Agreement, which shall be of no further force and effect.
2. Employment
(a) Employment. TIMCO agrees to employ the Employee as Senior Vice
President of Airframe Maintenance. Employee agrees to accept such employment and
serve in such position, on the terms and subject to the conditions of this
Agreement.
(b) Employment Period. The period during which the Employee shall serve
as an employee of TIMCO under this Agreement shall commence on the Effective
Date, and unless earlier terminated pursuant to this Agreement or extended
through agreement of the parties, shall expire on December 31, 2006 (the period
for which the Employee is an employee of TIMCO is hereinafter referred to as the
"Employment Period").
(c) Duties and Responsibilities. During the Employment Period, the
Employee shall have such authority and responsibility and perform such duties as
may be assigned to him from time to time at the direction of the Chief Operating
Officer of TIMCO, or, if no Chief Operating Officer is then serving, by the
Chief Executive Officer of TIMCO, and in the absence of such assignment, such
duties customary to Employee's office as are necessary to the business and
operations of TIMCO and its affiliates. During the Employment Period, the
Employee's employment shall be full time and the Employee shall perform his
duties honestly, diligently, competently, in good faith and in the best
interests of TIMCO and shall use his best efforts to promote the interests of
TIMCO and shall refer to TIMCO opportunities in the aerospace industry that have
been referred to Employee.
3. Compensation and Benefits.
(a) Base Salary. In consideration for the Employee's services hereunder
and the restrictive covenants contained herein, the Employee shall be paid an
annual base salary of $225,000 (the "Salary"), payable in accordance with the
Company's customary payroll practices. Notwithstanding the foregoing, Employee's
annual Salary may be increased at any time and from time to time to levels
greater than the level set forth in the preceding sentence at the sole
discretion of the Compensation Committee of the Board of Directors of TIMCO
("Committee") to reflect merit or other increases.
(b) Bonus. In addition to the Salary, the Employee shall be eligible to
receive an annual bonus ("Bonus") equal to 65% of the Employee's Base Salary.
The Bonus shall be based on the achievement of corporate goals and objectives as
established by the Committee after consultation with the management of TIMCO.
The achievement of said goals and objectives shall be determined by the
Committee. With respect to any Fiscal Year during which the Employee is employed
by the Company for less than the entire Fiscal Year, the Bonus shall be prorated
for the period during which the Employee was so employed. The Bonus shall be
payable within thirty (30) days after the completion of the financial statements
for the particular Fiscal Year as to which the Bonus relates. The term "Fiscal
Year" as used herein shall mean each period of twelve (12) calendar months
commencing on January 1st of each calendar year during the Employment Period and
expiring on December 31st of such year.
(c) Retention Bonus. In consideration for Employee entering into the
Agreement, and in addition to the other compensation and benefits payable
hereunder, Employee shall receive a retention bonus (the "Retention Bonus") in
the amount of $75,000, $25,000 of which shall be paid on the Effective Date,
$25,000 of which shall be paid on January 1, 2005 (so long as Employee has not
been terminated for Cause or voluntarily resigned from his employment with TIMCO
as of such date), and $25,000 of which shall be paid on January 1, 2006 (so long
as Employee has not been terminated for Cause or voluntarily resigned from his
employment with TIMCO as of such date).
(d) Remainder of Signing Bonus due under Old Agreement. Under the Old
Agreement, Employee was entitled to a signing bonus, $30,000 of which remains
payable on September 12, 2004 if Employee has not been terminated for Cause or
voluntarily resigned his employment with Triad International Maintenance
Corporation as of that date. In addition to the other benefits payable
hereunder, Employee shall receive the remaining balance of his signing bonus due
under the Old Agreement if as of September 12, 2004 Employee has not been
terminated for Cause or voluntarily resigned from his employment with TIMCO as
of such date.
(e) Stock Options. Employee shall be eligible to receive grants of
stock options or other equity incentives at the discretion of the Committee.
(f) Other Compensation Programs. The Employee shall be entitled to
participate in TIMCO's incentive and deferred compensation programs and such
other programs as are established and maintained generally for the benefit of
TIMCO's employees or executive officers, subject to the provisions of such plans
or programs.
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(g) Vacations. The Employee shall be entitled to three weeks of
vacation on an annual basis. Employee shall be entitled to be reimbursed for any
accrued and unused vacation time as of the date he is no longer an employee of
TIMCO.
(h) Other Benefits. During the term of this Agreement, the Employee
shall also be entitled to participate in any other health insurance programs,
life insurance programs, disability programs, stock option plans, bonus plans,
pension plans and other fringe benefit plans and programs as are from time to
time established and maintained for the benefit of TIMCO's employees or
executive officers, subject to the provisions of such plans and programs.
(i) Expenses. The Employee shall be reimbursed for all out-of-pocket
expenses reasonably incurred by him on behalf of or in connection with the
business of TIMCO, pursuant to the normal standards and guidelines followed from
time to time by TIMCO.
(j) Withholding. All payments made to the Employee hereunder shall be
made net of any applicable withholding for income taxes and the Employee's share
of FICA, FUTA or other taxes. The Company shall withhold such amounts from such
payments to the extent required by applicable law and remit such amounts to the
applicable governmental authorities in accordance with applicable law.
4. Termination.
(a) For Cause. The Company shall have the right to terminate this
Agreement and to discharge the Employee for Cause (as defined below), at any
time during the term of this Agreement. Termination for Cause shall mean, during
the term of this Agreement, (i) Employee's willful and continued failure to
substantially perform his duties after he has received written notice from the
Company identifying the actions or omissions constituting willful and continued
failure to perform, (ii) Employee's conduct that would constitute a crime under
federal or state law, (iii) Employee's actions or omissions that constitute
fraud, dishonesty or gross misconduct, (iv) Employee's breach of any fiduciary
duty that causes material injury to the Company, (v) Employee's breach of any
duty causing material injury to the Company, (vi) Employee's inability to
perform his material duties to the reasonable satisfaction of the Company due to
alcohol or other substance abuse, or (vii) any violation of the Company's
policies or procedures involving discrimination, harassment, substance abuse or
work place violence. Any termination for Cause pursuant to this Section shall be
given to the Employee in writing and shall set forth in detail all acts or
omissions upon which the Company is relying to terminate the Employee for Cause.
Upon any determination by the Company that Cause exists to terminate
the Employee, the Company shall cause a special meeting of the Board of
Directors to be called and held at a time mutually convenient to the Board of
Directors and Employee, but in no event later than ten (10) business days after
Employee's receipt of the notice that the Company intends to terminate the
Employee for Cause. Employee shall have the right to appear before such special
meeting of the Board of Directors with legal counsel of his choosing to refute
such allegations and shall have a reasonable period of time to cure any actions
or omissions which provide the Company with a basis to terminate the Employee
for Cause (provided that such cure period shall not exceed 30 days). A majority
of the members of the Board of Directors must affirm that Cause
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exists to terminate the Employee. No finding by the Board of Directors will
prevent the Employee from contesting such determination through appropriate
legal proceedings provided that the Employee's sole remedy shall be to xxx for
damages, not reinstatement, and damages shall be limited to those that would be
paid to the Employee if he had been terminated without Cause.
(b) Without Cause. At any time during the Employment Period, TIMCO
shall have the right to terminate the Employment Period and to discharge the
Employee without cause effective upon delivery of written notice to the
Employee. Upon any such termination by TIMCO without cause, provided that
Employee is otherwise in compliance with the provisions of Sections 5 and 6
hereof, the Employee shall be entitled to receive each month for every month
remaining in the Employment Period an amount equal to the monthly portion of his
Salary, when and as the same would have been due and payable hereunder but for
such termination, and otherwise TIMCO shall not have any further obligations
hereunder from and after the date of such termination.
(c) Death or Disability. At any time during the Employment Period if
Employee is unable to perform his duties and responsibilities as provided
herein, due to his death or due to a physical or mental disability for more than
one hundred eighty (180) days, TIMCO upon written notice may terminate the
Employment Period provided that Employee shall receive disability payments
during the term of Employees disability which Employee is entitled to receive
under the applicable Companies (as defined hereafter) Disability Plan.
5. Restrictive Covenants. In consideration of the foregoing, the
Employee agrees that he shall not:
(a) during the Employment Period and for a period of one-year following
the termination of the Employment Period for any reason, directly or indirectly,
alone or as a partner, joint venture, officer, director, member, employee,
consultant, agent, independent contractor or shareholder of, or lender to, any
company or business, engage in any business in the aerospace industry directly
or indirectly in competition with the business of TIMCO or its affiliates (TIMCO
and its affiliates being referred to herein collectively as the "Companies") as
such business now exists or as it may exist at the time of termination;
provided, however, that, the beneficial ownership of less than five percent (5%)
of the shares of stock of any other corporation having a class of equity
securities actively traded on a national securities exchange or over-the-counter
market shall not be deemed, in and of itself, to violate the prohibitions of
this Section; and, provided further, that Employee shall be entitled to receive
each month for one-year following the termination of the Employment Period
Employee's monthly portion of the Salary, unless Employee has been was
terminated for "Cause," in which case this restrictive covenant shall apply
notwithstanding the payment of severance;
(b) for a period of one-year following the termination of the
Employment Period, directly or indirectly (i) induce any Person which is a
customer of any of the Companies, to patronize any business in the aerospace
industry directly or indirectly in competition with business conducted by any of
the Companies; (ii) canvass, solicit or accept from any Person which is a
customer of any of the Companies, any such competitive business; or (iii)
request or advise any Person which is a customer or supplier of any of the
Companies, to withdraw, curtail
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or cancel any such customer's or supplier's business with any of the Companies,
or its or their successors;
(c) for a period of one year following the Employment Period, directly
or indirectly employ, or knowingly permit any company or business directly or
indirectly controlled by him, to employ, any person who was employed by any of
the Companies, at or within the prior three months, or in any manner seek to
induce any such person to leave his or her employment;
(d) at any time following the date hereof, directly or indirectly, in
any way outside of his employment with any of the Companies utilize, disclose,
copy, reproduce or retain in his possession any of the Companies' proprietary
rights or records, including, but not limited to, any of its customer lists.
6. Confidentiality. The Employee agrees that at all times during and
after the Employment Period, the Employee shall (i) hold in confidence and
refrain from disclosing to any other party all information, whether written or
oral, tangible or intangible, of a private, secret, proprietary or confidential
nature, of or concerning the Companies and their business and operations, and
all files, letters, memoranda, reports, records, computer disks or other
computer storage medium, data, models or any photographic or other tangible
materials containing such information ("Confidential Information"), including
without limitation, any technical specifications, any sales, promotional or
marketing plans, programs, techniques, practices or strategies, any expansion
plans (including existing entry into new geographic and/or product markets), and
any customer lists, (ii) use the Confidential Information solely in connection
with his employment with the Companies and for no other purpose, (iii) take all
reasonable precautions necessary to ensure that the Confidential Information
shall not be, or be permitted to be, shown, copied or disclosed to third
parties, without the prior written consent of AVS, and (iv) observe all security
policies implemented by the Companies from time to time with respect to the
Confidential Information. In the event that the Employee is ordered to disclose
any Confidential Information, whether in a legal or regulatory proceeding or
otherwise, the Employee shall provide AVS with prompt notice of such request or
order so that the Companies may seek to prevent disclosure. In the case of any
disclosure, the Employee shall disclose only that portion of the Confidential
Information that he is ordered to disclose.
7. Acknowledgments of the Parties. The parties agree and acknowledge
that the restrictions contained in Sections 5 and 6 are reasonable in scope and
duration and are necessary to protect the Companies. If any provision of Section
5 or 6 as applied to any party or to any circumstance is adjudged by a court to
be invalid or unenforceable, the same shall in no way affect any other
circumstance or the validity or enforceability of any other provision of this
Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The Employee agrees and acknowledges that the
breach of Section 5 or 6 will cause irreparable injury to the Companies and upon
breach of any provision of such Sections, the Companies shall be entitled to
injunctive relief, specific performance or
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other equitable relief; provided, however, that, this shall in no way limit any
other remedies which the Companies may have.
8. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed given on the
date delivered if delivered by certified or registered mail (first class postage
pre-paid) or guaranteed overnight delivery and on the date sent if sent by
facsimile transmission if such transmission is confirmed by delivery by
certified or registered mail (first class postage pre-paid) or guaranteed
overnight delivery, in each case to the following addresses and facsimile
numbers (or to such other addresses or telecopy numbers which such party shall
designate in writing to the other party): (a) if to TIMCO, at 000 Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxx Xxxx, Chief Operating Officer
(facsimile: 1-336-664-0339), with a copy to Xxxxxx X. Xxxxxxxx, Esq., Xxx
Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (facsimile: 1-305-374-5095); and
(b) if to the Employee at the address and facsimile number listed on the
signature page hereto.
9. Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other Agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
10. Assignment; Third Party Beneficiary; Guaranty. This Agreement, and
the Employee's rights and obligations hereunder, may not be assigned or
delegated by him. The rights and obligations of TIMCO under this Agreement shall
inure to the benefit of and be binding upon their respective successors and
assigns.
11. Severability; Survival. In the event that any provision of this
Agreement is found to be void and unenforceable by a court of competent
jurisdiction, then such unenforceable provision shall be deemed modified so as
to be enforceable (or if not subject to modification then eliminated herefrom)
for the purpose of those procedures to the extent necessary to permit the
remaining provisions to be enforced. The provisions of Sections 5, 6, 10 and 11
will survive the termination of this Agreement and the Employment Period for any
reason.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
13. Governing Law. This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of North Carolina
applicable to contracts executed and to be wholly performed within such State.
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(a) Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of its subject matter and supersedes all prior
agreements and understandings (oral or written) between or among the parties
with respect to such subject matter.
14. Headings. The headings of Paragraphs and Sections are for
convenience of reference and are not part of this Agreement and shall not affect
the interpretation of any of its terms.
15. Construction. This Agreement shall be construed as a whole
according to its fair meaning and not strictly for or against any party. The
parties acknowledge that each of them has reviewed this Agreement and has had
the opportunity to have it reviewed by their respective attorneys and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this Agreement.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TIMCO AVIATION SERVICES, INC.
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: President
EMPLOYEE:
/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Address for Notices:
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Fax:
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