EMPLOYMENT AGREEMENT
AGREEMENT, dated as of March 17, 1997, by and between Tri-Star Aerospace,
Co., a Delaware corporation (the "Company", and Xxxxx Xxxxxxxx (the
"Executive")
WHEREAS, the Company desires to retain the Executive as its Senior Vice
President, Sales and Marketing, and the Executive desires to provide his
services to the Company in such capacity, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties set forth below, the parties agree as
follows:
1. EMPLOYMENT. Subject to all of the terms and conditions set forth
in this Agreement, the Company hereby employs the Executive, effective as of
March 17, 1997, as its Senior Vice President, Sales and Marketing, and the
Executive hereby accepts such employment.
2. TERM. Unless earlier terminated pursuant to the provisions hereof,
the term of the Executive's employment (the "Term") shall have commenced on
March 17, 1997 and shall end on December 31, 1999.
3. DUTIES.
(a) During the Term, the Executive shall perform all duties and
functions reasonably appurtenant to his position as Vice President, Sales and
Marketing, and as reasonably directed by the Chief Executive Officer and Board
of Directors of the Company.
(b) The Executive agrees to devote substantially all of his business
time to his duties as set forth above.
4. COMPENSATION.
(a) SALARY. During the term of the Executive's employment
hereunder, the Executive shall receive an annual salary of $140,000 (the "Base
Salary"), payable in accordance with the customary payroll practices of the
Company, and shall be eligible for such raises as the Compensation Committee of
the Board of Directors of the Company (the "Compensation Committee"), in its
sole and absolute discretion, may provide.
(b) BONUS. In addition to his Base salary, the Executive shall
be entitled to participate in a bonus plan to be administered by the
Compensation Committee whereby the
Executive may earn a bonus equal to up to 50% of his Base Salary, based upon
and subject to the Company's achievement of such performance targets as are
determined by the Compensation Committee and the Chief Executive Officer of
the Company in their sole and absolute discretion. Such bonus, if and when
earned, shall payable at the end of the fiscal year in respect of which such
bonus was earned.
(c) BENEFITS. The Executive shall receive such medical and other
benefits as are regularly offered to other senior executives of the Company.
5. EXPENSES.
(a) RELOCATION EXPENSES. Upon presentation by the Executive to the
Company of expense reports and satisfactory supporting documentation evidencing
payment of such expenses, in such form as shall be requested by the Company,
the Company shall reimburse the Executive for such expenses as the Board of
Directors of the Company, in its sole and absolute discretion, determines to be
necessary and reasonable in connection with the relocation of Executive, his
family and their personal effects to a new location designated by the Company.
(b) BUSINESS EXPENSES. During the term of the Executive's
employment hereunder, the Executive shall be entitled to receive reimbursement
for all reasonable travel and business expenses incurred by him (in accordance
with the policies and procedures of the Company) in performing services
hereunder, provided that the Executive promptly and properly accounts therefor
in accordance with the Company's expense policy.
6. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. If the Company terminates the
employment of the Executive other than for Cause (as defined herein) and other
than by reason of Disability (as defined herein):
(i) the Executive shall be entitled to receive (A) his salary
and personal time (I.E., vacation and sick time) accrued through the Date of
Termination (as defined herein), and (B) an amount equal to two times his Base
Salary for the twelve-month period immediately preceding such termination of
employment, payable by the Company in equal installments, without interruption,
concurrently with the payment of the Company's normally
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scheduled payroll for active employees, until the expiration of a period of
two years from the Date of Termination; and
(ii) the Executive shall be entitled to such medical and other
benefits on substantially the same terms as are regularly offered to senior
executives of the Company until the expiration of a period of two years from
the Date of Termination.
Notwithstanding the foregoing, if the Executive commences new full-
time employment during the two-year period beginning on the Date of
Termination, the payments and benefits described in Sections 6(a)(i) and (ii)
shall cease immediately upon the commencement of such employment.
(b) OTHER TERMINATION. In the event that the employment of the
Executive is terminated (i) due to the death or Disability (as defined herein)
of the Executive, (ii) by the Company for Cause, or (iii) for any other reason
not included in Section 6(a), the Executive shall have no right to receive any
unaccrued compensation or unaccrued personal time from and after the Date of
Termination.
(c) DEFINITIONS. For purposes of this Agreement:
(i) "Disability" shall mean the inability (as reasonably
determined by the Board of Directors of the Company after consultation with the
Executive's regular attending physician) of the Executive, as a result of
incapacity due to physical or mental illness or disability, to substantially
perform his material duties with the Company for six consecutive months or
shorter periods aggregating six months during any twelve-month period; and
(ii) "Cause" shall mean the occurrence of one or more of the
following events: (A) any intentional or willful failure (other than a failure
resulting from the Executive's physical illness or injury) by the Executive to
substantially perform his employment duties which shall not have been corrected
within 30 days following written notice from the Chairman of the Board of
Directors of the Company of the duties which such Executive has failed to
substantially perform, (B) any engaging by such Executive in misconduct which
is significantly injurious to the Company or any of its subsidiaries or
affiliates, (C) any breach by the Executive of any material covenant contained
in the Stockholders Agreement or any subscription agreement entered into by the
Executive with the Company, or (D) such Executive's conviction or entry of a
plea of NOLO CONTENDERE in respect of any felony, or of a misdemeanor which
results
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in or is reasonably expected to result in significant economic or
reputational injury to the Company or any of its subsidiaries or affiliates.
(d) NOTICE OF TERMINATION. Any termination of the Executive's
employment (other than a termination due to the death of the Executive) shall
be communicated by a written notice of termination (the "Notice of
Termination") which shall set forth in reasonable detail the basis for such
termination of employment under this agreement and shall be given in accordance
with the notice provisions herein. In the event that the Company terminates
the Executive's employment hereunder and does not provide a Notice of
Termination within 7 days thereafter, such termination shall be conclusively
deemed to be termination without Cause.
(e) DATE OF TERMINATION. For purposes of this Agreement, the "Date
of Termination" shall mean (i) if the Executive's employment is terminated by
his death, the date of his death, (ii) if the Executive's employment is
terminated due to Disability, ten days after delivery to the Executive of the
Notice of Termination, (iii) in the case of non-renewal of the Term, at the
expiration of the Term, and (iv) in any other case, the date specified in the
Notice of Termination.
(f) SETTLEMENT AND RELEASE. The performance by the Company of its
obligations under this Section 6 shall constitute full settlement and release
of any claim or cause of action, of whatsoever nature, which the Executive
might otherwise assert against the Company or any of its directors,
stockholders, officers or employees pursuant to this Agreement on account of
the termination of the Executive's employment.
7. EXECUTIVE COVENANTS.
(a) NON-COMPETITION. During the Term so long as severance benefit
is in force and for period of two years after the Date of Termination, the
Executive expressly covenants and agrees that he shall not, without the
express written consent of the Company, for his own account or jointly with
any other person, directly or indirectly, own, manage, operate, join,
control, loan money to, invest in, or otherwise participate in, or be
connected with, or become or act as an officer, employee, consultant,
representative or agent of, any business, individual, partnership, firm or
corporation (other than the Company and its subsidiaries or affiliates) which
is in competition with any business in which the Company or any of its
subsidiaries
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and affiliates are then engaged or planning to be engaged; PROVIDED, HOWEVER,
that the Executive may purchase or own, solely as an inactive investor, the
securities of any entity if (a) such securities are publicly traded on a
nationally-recognized stock exchange or on NASDAQ and (b) the aggregate
holdings of such securities by the Executive and his immediate family do not
exceed three percent (3%) of the voting power or three percent (3%) of the
capital stock of such entity.
(b) NO SOLICITATION. The Executive hereby agrees that during the
Term and for a period of two years after the Date of Termination, he shall not,
directly or indirectly, for his own account or jointly with another, or for or
on behalf of any entity, as principal, agent or otherwise, (i) solicit or
induce or in any manner attempt to solicit or induce any person employed by or
acting as a consultant to or agent of the Company or any of its subsidiaries or
affiliates to leave such position or (ii) interfere with, disrupt or attempt to
disrupt any relationship, contractual or otherwise, between the Company or any
of its subsidiaries or affiliates and any of the customers, clients or
suppliers of the Company or any of its subsidiaries or affiliates.
(c) CONFIDENTIAL INFORMATION. The Executive expressly covenants and
agrees that he will not at any time, whether during or after the Term, directly
or indirectly, disclose, use or permit the use of any trade secrets,
confidential information or proprietary information of, or relating to, the
Company or any of its subsidiaries or affiliates, other than as contemplated
hereunder during the Term. Notwithstanding the foregoing, the Executive shall
be permitted to disclose confidential information solely to the extent required
by court or administrative order, provided that the Executive immediately
provides notice to the Company that he is required by court or administrative
order to disclose such confidential information and the Company has had an
opportunity to protest and contest any assertion that the Executive is required
to make such disclosure and to seek a protective order or other remedy which
may narrow the scope of required disclosure or otherwise protect the
confidentiality of such information to the maximum extent possible. The
Executive agrees to cooperate and assist the Company, at the Company's expense,
in preparing any protest or contest of any such assertion and seeking any such
remedy. Confidential or proprietary information shall not include information
that is, at the time of receipt by Executive, in the public domain or is
otherwise generally known in the industry or subsequently enters the public
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domain or becomes generally known in the industry through no fault of the
Executive.
(d) COVENANTS NON-EXCLUSIVE. The Executive acknowledges and
agrees that his covenants contained in this Section 7 shall (i) survive any
termination of this Agreement and (ii) not be deemed exclusive of any common
law rights of the Company or any of its subsidiaries or affiliates in
connection with the relationships contemplated hereby and that the Company
shall have any and all rights as may be provided by law in connection with
the relationships contemplated hereby.
8. INDEMNIFICATION. The Company agrees to indemnify and hold harmless
the Executive from and against any and all liabilities incurred or sustained by
him in connection with any claim, action, investigation, suit or proceeding to
which he may be made a party by reason of his acts or omissions in connection
with his being or having been an officer, director or employee of the Company
or Parent, to the maximum extent permitted by law. This Section 8 is not
intended to limit any rights which the Executive may have under the Company's
By-laws or under applicable law.
9. PURCHASE OF COMMON STOCK. Effective immediately and for a period of
60 days, the Executive shall have the right to purchase from Maple Leaf
Aerospace, Inc. ("Parent") 432 shares of the common stock of Parent, at a price
of $231.59 per share, subject to the terms and conditions of the Management
Stockholders' and Optionholders' Agreement, dated as of September 19, 1996,
among Parent and stockholders of Parent party thereto, as such agreement may be
amended from time to time.
10. NOTICE. Any and all notices or any other communication provided for
herein shall be made in writing by hand-delivery, first-class mail (registered
or certified, with return receipt requested), telecopier, or overnight air
courier guaranteeing next day delivery, effective upon receipt, to the address
of the party appearing under his or its name below (or to such other address as
may be designated in writing by such party):
(i) IF TO THE EXECUTIVE:
Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
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(ii) IF TO THE COMPANY:
Tri-Star Aerospace, Co.
00000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
With a copy to:
Odyssey Partners, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
11. MISCELLANEOUS.
(a) AMENDMENT. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is agreed to in writing signed
by the Executive and a duly authorized officer of the Company (other than the
Executive).
(b) WAIVER; ASSIGNMENT. No waiver by any party hereto at any time
of any breach of another party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of any other provision hereof. This Agreement shall be binding on and
inure to the benefit of the Company and its successors and permitted assigns.
This Agreement shall not be assignable by either party without the prior
written consent of the other party; PROVIDED, HOWEVER, that nothing contained
herein shall prohibit the Company from assigning this Agreement pursuant to a
merger, consolidation or sale of all or substantially all of the business or
assets of the Company. In addition, the Company shall require any such
successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
(c) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the law of the State of Delaware without giving effect to
the conflict of laws provisions thereof.
(d) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
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(e) SEVERABILITY. The provisions of this Agreement are severable,
and the invalidity of any provision shall not affect the validity of any other
provision. In the event that any provision of this Agreement or the
application thereof is held to be unenforceable because of the duration or
scope thereof, the parties hereto agree that the panel of arbitrators or court
making such determination shall have the power to reduce the duration and scope
of such provision to the extent necessary to make it enforceable, and that the
Agreement in its reduced form shall be valid and enforceable to the full extent
permitted by law.
(f) ENTIRE AGREEMENT. This agreement supersedes any other
agreement, whether written or oral, that may have been made or entered into
between the parties hereto and constitutes the entire agreement by the parties
related to the matters specified herein.
(g) EQUITABLE RELIEF. It is hereby acknowledged that irreparable
harm would occur in the event that any of the provisions of this Agreement
were not performed fully by the undersigned in accordance with the terms
specified herein, and that monetary damages are an inadequate remedy for
breach of this Agreement because of the difficulty of ascertaining and
quantifying the amount of damage that will be suffered by the parties relying
hereon in the event that the undertakings and provisions contained in this
Agreement were breached or violated. Accordingly, each party hereto shall be
entitled to an injunction or injunctions to restrain, enjoin, and prevent
breaches of the undertakings and provisions hereof and to enforce
specifically the undertakings and provisions hereof in any court of the
United States or any state having jurisdiction over the matter, it being
understood that any such remedies shall be in addition to, and not in lieu
of, any other rights and remedies available at law or in equity.
[signature page follows]
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IN WITNESS WHEREOF, the parties have signed and delivered this Agreement
as of the date first above written.
TRI-STAR AEROSPACE, CO.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title:
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxx
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