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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
by and between Aviation Group, Inc., a Texas corporation (the "Company"), and
Xxx Xxxxxxx, an individual resident of the State of Texas ("Employee"), as of
March 1, 1996 (the "Effective Date").
W I T N E S S E T H :
In consideration of the mutual covenants herein contained, the
employment of Employee upon the terms, conditions and covenants set forth
herein and each act performed pursuant hereto, the parties hereto agree as
follows:
I.
Employment and Duties
1.1 Employment. For the term of employment as below stated, the
Company hereby employs Employee as its President and Chief Executive Officer.
Employee shall have the responsibility, subject to the general direction and
control of the Board of Directors of the Company (the "Board"), of formulating
the policies of the Company and administering its affairs and such other duties
as are normally associated with and inherent in the capacities of President and
Chief Executive Officer. Employee shall have authority to hire the staff
necessary to accomplish the Company's goals.
1.2 Employee's Loyalty. Employee agrees that, without the prior
consent of the Company, Employee shall not during the term of this Agreement
directly or indirectly (i) invest in any business which is competitive with
that of the Company, (ii) attempt to influence customers or other business
associates not to do business with or not to continue to do business with the
Company, or (iii) take any other action inconsistent with the fiduciary
responsibility of an employee to his employer.
II.
Term of Employment
2.1 Term. Subject to earlier termination as hereinafter provided,
the initial term of employment of Employee hereunder shall commence on the
Effective Date and shall end on the third anniversary of the Effective Date.
Thereafter, this Agreement shall be automatically extended from year to year
unless either party shall have provided written notice of non-renewal to the
other party hereto not less than thirty (30) days prior to such expiration
date, or unless terminated in accordance with the provisions of Section 2.2 of
this Agreement. As used herein, the phrase "Term of Employment" shall mean
said initial term of employment as well as any renewal terms thereof.
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2.2 Termination. This Agreement may be terminated at any time
during the Term of Employment only by reason of and in accordance with the
following:
(a) Death. If Employee dies during the term of this
Agreement and while in the employ of the Company, this Agreement shall
automatically terminate as of the date of Employee's death; and the
Company shall have no further obligation to Employee or his estate,
except to pay to the estate of Employee (i) any accrued, but unpaid,
Salary (as hereinafter defined) and any vacation or sick leave
benefits which have accrued as of the date of death but were then
unpaid or unused, and (ii) any declared, accrued Bonus Compensation
(as hereinafter defined), if any.
(b) Disability. If, during the term of this Agreement,
Employee shall be prevented from performing his duties hereunder by
reason of becoming totally disabled, then the Company, on thirty (30)
days' prior notice to Employee, may terminate this Agreement. For
purposes of this Agreement, Employee shall be deemed to have become
totally disabled when (i) he receives "total disability benefits"
under the Company's disability plan (whether funded with insurance or
self-funded by the Company), or (ii) the Board, upon the written
report of a qualified physician (after complete examination of
Employee) designated by the Board, shall have determined that Employee
has become physically and/or mentally incapable of performing his
duties under this Agreement on a permanent basis. In the event of
termination pursuant to this Section, the Company shall be relieved of
all of its obligations under this Agreement, except to pay Employee
any accrued, but unpaid Salary, any vacation or sick leave benefits
which have accrued as of the date on which such permanent disability
is determined, but then remain unpaid, and any declared Bonus
Compensation. The provisions of the preceding sentence shall not
affect Employee's rights to receive payments under the Company's
disability insurance plan, if any.
(c) Termination by the Company for Cause. Prior to the
expiration of the term of this Agreement, the Company may discharge
Employee for cause and terminate this Agreement without any further
liability hereunder to Employee or his estate, except to pay any
accrued, but unpaid, Salary, any declared Bonus Compensation, and any
vacation benefits due to him. For purposes of this Agreement, a
"discharge for cause" shall mean termination of Employee upon written
notification to Employee limited, however, to one or more of the
following reasons:
(i) Fraud, misappropriation or embezzlement by
Employee in connection with the Company; or
(ii) Conviction of Employee for a felony crime.
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III.
Compensation and Benefits
3.1 Salary and Bonus. As compensation for his services to the
Company and other duties and responsibilities herein contemplated, Employee
shall receive from the Company an annual salary in the amount of $144,000.00
per year ("Salary"). Employee will be entitled to receive the bonuses and
additional compensation ("Bonus Compensation"), if any, described in Section
3.4 below.
3.2 Employment Benefits. In addition to the Salary and Bonus
Compensation payable to Employee hereunder, Employee shall be entitled to the
following benefits upon satisfaction by Employee of the eligibility
requirements therefor, subject to the following limitations:
(a) Sick Leave Benefits and Disability Insurance. Unless
this Agreement is terminated pursuant to the provisions of Section
2.2(b) hereof, Employee shall be paid sick leave benefits at his then
prevailing Salary rate during his absence due to illness or other
incapacity, reduced by the amount, if any, of worker's compensation,
social security entitlements or disability benefits, if any, under the
Company's group disability insurance plan. The Company, at its own
expense, shall provide Employee with the maximum amount of disability
insurance benefits allowed for one in the position of Employee with
the Company under and consistent with any group disability insurance
plan which the Company, at its election, may adopt. Notwithstanding
anything herein to the contrary, Employee's sick leave days shall not
exceed the number of sick leave days provided to employees of similar
tenure and position in the Company as provided in the Company's policy
manual, if any.
(b) Life Insurance. The Company, at its own expense,
shall provide Employee, subject to Employee passing any physical
examination required by the Company's insurance company, life
insurance benefits in a face amount of not less than one year's Salary
under and consistent with any group term life insurance plan which the
Company, at its election, may adopt.
(c) Hospitalization, Accident, Major Medical and Dental
Insurance. The Company, at its own expense, shall provide Employee
(and all dependents of Employee) with group hospitalization, group
accident, major medical, and dental insurance in amounts of coverage
comparable to the coverage, if any, provided other employees in
similar positions with the Company.
(d) Vacations. Employee shall be entitled to a
reasonable paid vacation each year during the term of this Agreement
as determined by the Board, exclusive of holidays and weekends, which
vacation shall be taken by Employee in accordance with the business
requirements of the Company at the time and its personnel policies
then in effect relative to this subject. Employee shall be entitled
to at least four weeks of paid vacation per year, which
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Employee may use at any time during each year, and to the extent not
used, during a subsequent year.
(e) Working Facilities. The Company shall provide, at
its expense, adequate facilities, equipment, supplies and personnel
(including professional, clerical, support and other personnel) for
Employee's use in performing his duties and responsibilities under
this Agreement.
(f) Other Employment Benefits. As an employee of the
Company, Employee shall participate in and receive such other fringe
benefits as may be in effect from time to time for employees of the
Company, whether or not specifically enumerated herein and whether or
not through any written plan or arrangement, upon satisfaction by
Employee of the eligibility requirements therefor.
3.3 Reimbursement of Employee Expenses. Employee is authorized to
incur ordinary, necessary and reasonable expenses in connection with the
performance of his duties and responsibilities under this Agreement and for the
promotion of the business and activities of the Company during the term hereof,
including, without limitation, expenses for necessary travel and entertainment
and other items of expenses required in the normal and routine course of
Employee's employment hereunder. The Company will reimburse Employee from time
to time for all such business expenses incurred pursuant to and in conformity
with the provisions of this Section provided that Employee presents to the
Company documentary evidence of such expenses necessary to satisfy the
reporting requirements of the Internal Revenue Code of 1986, as amended.
3.4 Bonus Compensation. As additional compensation to Employee
for his services to the Company and other duties and responsibilities herein
contemplated, Employee may receive a bonus, the amount of which shall be within
the sole discretion of the Board, based on merit, the Company's financial
performance and other relevant criteria.
3.5 Severance Pay. If the Company terminates the employment of
Employee at any time, or if a change in ownership or control (as defined below)
of the Company occurs and Employee voluntarily terminates his employment with
the Company within one year after such change in ownership or control, the
Company shall be required to pay Employee severance pay in an amount equal to
the sum of the unpaid Salary for the remainder of the term of this Agreement
plus the total Salary and Bonus Compensation paid to Employee by the Company
during the 365 day period preceding such termination. Such severance pay shall
be payable to Employee by the Company in cash on or before the thirtieth day
after the effective date of such termination. For purposes of this Section
3.5, a "change in ownership or control" of the Company shall mean:
(a) the appointment of any person other than Employee as
President or Chief Executive Officer of the Company, or the failure to elect or
re-elect Employee to, or the removal of Employee from, either of such
positions;
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(b) any change in the composition of the Board of
Directors of the Company whereby a majority of its number consists of persons
who are not members of the Board as of the date of this Agreement, except if
the election or appointment of such new directors was recommended or approved
in advance and in writing by Employee;
(c) any change in the constructive or actual ownership of
the Company which would trigger the application of Section 382 of the Internal
Revenue Code of 1986, as amended, to the Company;
(d) any transfer or issuance of shares of the Company's
stock representing more than 25% of the beneficial ownership of the Company if
such transfer is not approved in advance and in writing by Employee;
(e) any material change in the nature or scope of the
authority, powers, functions or duties attached to the positions of President
and Chief Executive Officer of the Company; or
(f) any breach by the Company of any provision of this
Agreement that is not embraced within the foregoing clauses (a) through (e) and
that is not remedied within ten (10) days after receipt by the Company of
written notice from Employee.
IV.
Restrictive Covenants
4.1 Trade Secrets, Propriety and Confidential Information.
Employee recognizes and acknowledges that Employee will acquire during his
employment hereunder access to certain trade secrets and confidential and
proprietary information of the Company (including, but not limited to,
financial data, marketing and sales plans, customer and supplier lists, and
technical and commercial information relating to the Company's properties,
customers and suppliers). Employee acknowledges that the information he
obtains through his employment hereunder constitutes valuable, special, and
unique property of the Company and that the Company would suffer great loss and
damage if he should violate the covenants set forth in this Agreement.
Employee acknowledges that such covenants and conditions are reasonable and
necessary for the protection of the Company's business.
4.2 Solicitation of Employees. Employee agrees that during the
Term of Employment and until three years after the termination or expiration of
the Term of Employment, he will not, directly or indirectly, or by act in
concert with others, employ or attempt to employ or solicit for employment to
any business which is competitive with the Company, any of the Company's
employees, or seek to influence any employees of the Company to leave their
employment with the Company.
4.3 Nondisclosure of Trade Secrets, Propriety and Confidential
Information. Employee agrees that without the prior written approval of the
Company, Employee shall not during the Term of Employment or following the
cessation of the Term of Employment for any reason disclose any
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of the Company's trade secrets or confidential or proprietary information to
any person or firm, company, association, or other entity (except for
authorized personnel of the Company) for any reason or purpose whatsoever;
provided, however, that this Section shall not apply to the extent that
Employee shall be required to provide information pursuant to a valid, lawful
subpoena or court order so long as Employee shall have made his best efforts in
good faith to cause the court of relevant jurisdiction, to the greatest extent
possible, to limit the scope of such subpoena or order and protect the
confidentiality of the information so disclosed.
4.4 Noncompetition Agreement. Employee covenants and agrees to
refrain for three years after any termination or expiration of his employment
with the Company from engaging in, or being employed by or performing
consulting services for any company or firm engaged in, the business of
providing painting and/or paint stripping services for aircraft, aircraft
cleaning services, ground handling services and/or light catering to the
airline industry or any other business in which the Company may be engaged at
the time of such employment termination or expiration.
4.5 Solicitation of Business of Company. Employee covenants and
agrees that during the Term of Employment Employee will not attempt to
influence customers, suppliers, and other business associates not to do
business with or not to continue to do business with the Company or its
affiliates.
4.6 Survival of Covenants. Sections 4.2, 4.3 and 4.4 hereof shall
survive any expiration or termination of this Agreement and shall continue to
bind the parties hereto in accordance with the terms hereof. The covenants
contained in this Article IV shall be construed as covenants or agreements
independent of any other provision of this Agreement and the allegation or
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of the covenants contained herein.
4.7 Remedies. In the event of breach or threatened breach by
Employee of any provision of this Article IV, the Company shall be entitled to
relief by temporary restraining order, temporary injunction, permanent
injunction, or otherwise in addition to other legal and equitable relief to
which it may be entitled, including any and all monetary damages which the
Company may incur as a result of said breach, violation or threatened breach or
violation. The Company may pursue any remedy available to it concurrently or
consecutively in any order as to any breach, violation, or threatened breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or threatened breach or violation,
or as to any other breach, violation, or threatened breach or violation.
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V.
Miscellaneous Provisions
5.1 Notices. Whenever, in connection with this Agreement, any
notice is required to be given or any other act or event is to be done or occur
on or by a particular number of days, and the date thus particularized should
be a Saturday, Sunday, or bank holiday in the City of Dallas, Texas, such date
shall be postponed to the next day which shall not be a Saturday, Sunday, or
bank holiday in the City of Dallas, Texas. In the event a notice or other
document is required to be given hereunder to the Company or Employee, such
notice or other document shall either be personally delivered or be mailed to
the party entitled to receive the same by registered or certified mail, return
receipt requested, at the appropriate address set forth below or at such other
address as such party shall designate in a written notice given in accordance
with this Section:
Company: Employee:
Aviation Group, Inc. Xxx Xxxxxxx
0000 Xxxxxx Xxxxxxx, Xxxxx 000 000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000 Xxx Xxxx, Xxxxx 00000
Notice shall be deemed given on the date of actual delivery, if delivered in
person, or, if mailed, then on the date noted on the return receipt.
5.2 Binding Effect. The rights and obligations of the parties
shall inure to the benefit of and shall be binding upon their heirs,
representatives, successors and assigns as the case may be.
5.3 Severability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable had
not been contained herein.
5.4 Waiver, Modification, and Integration. The waiver by any
party hereto of a breach of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach by any party. This
instrument contains the entire agreement of the parties concerning employment
and supersedes all prior and contemporaneous representations, understandings
and agreements, either oral or in writing, between the parties hereto with
respect to the employment of Employee by the Company and all such prior or
contemporaneous representations, understandings and agreements, both oral and
written, are hereby terminated. This Agreement may not be modified, altered or
amended except by written agreement of all the parties hereto.
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5.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ACTIONS HEREON SHALL BE
BROUGHT IN DALLAS COUNTY, TEXAS.
5.6 Counterpart Execution. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
5.7 Captions. The captions herein are inserted for convenience
only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
set forth above.
COMPANY:
AVIATION GROUP, INC., a
Texas corporation
By: /s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
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Title: President
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EMPLOYEE:
/s/ XXX XXXXXXX
----------------------------------------------------
Xxx Xxxxxxx
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