EMPLOYMENT AGREEMENT
This Employment Agreement dated as of the 16th day of June 1997, between
AVIC Group International, Inc., a Delaware Corporation ("Employer"), and Xxxxxx
X. Xxxxxxx ("Executive").
W I T N E S S E T H :
1. TERM. Employer hereby employs Executive and Executive hereby accepts
employment on the terms and conditions hereinafter set forth. Subject to the
provisions of Section 7 and 8 hereof, the term of this Agreement shall commence
on the date hereof and shall terminate on June15, 1999.
2. DUTIES.
A. Executive agrees to serve Employer as Senior Vice President and Chief
Financial Officer and in such capacity Executive agrees to render his services
to the best of his ability. Executive will report to the Chairman of the Board
of the Company and the Chief Executive Officer of the Company. During the term
of this Agreement, subject to Paragraph B below, Executive will devote
substantially all of his working time and attention to, but no less than four
days per week, and use his best efforts to advance the business and welfare of
Employer, subject to the direction and control of the Board of Directors.
B. Nothing herein shall prevent Executive from meeting certain business
obligations (described generally in Exhibit "A" attached hereto) and such
additional obligations which may be approved hereafter by the Chairman of the
Board of Directors of the Company, provided that he will do so as long as such
obligations do not impair his ability to fulfill effectively his duties to the
Company.
3. CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE.
(a) Executive hereby agrees that, during the term of this Agreement and
thereafter, he will not disclose to any person, or otherwise use or exploit any
of the proprietary or confidential information or knowledge, including without
limitation, trade secrets, processes, records of research, proposals, reports,
methods, processes, techniques, computer software or programming, or budgets or
other non-public financial information, regarding Employer, its business,
properties or affairs obtained by him at any time prior to or subsequent to the
execution of this Agreement, except in the furtherance of the interests of
Employer in the execution of Executive's duties hereunder or as may be required
pursuant to a lawful order of a judicial tribunal or legislative body of
competent jurisdiction.
(b) Upon termination of employment Executive will deliver to Employer all
processes, records of research, proposals, reports, memoranda, computer software
and programming, budgets and other financial information, and other non-public
materials or
records or writings of any other type (including any copies thereof) made, used
or obtained by Executive in connection with his employment by Employer.
(c) During the term of this Agreement, Executive agrees that he will not
(i) authorize his name to be used by, (ii) or engage in or carry on, directly or
indirectly, for himself as a member of a partnership or as a stockholder (other
than as a stockholder of less than five percent (5%) of the issued and
outstanding stock of a publicly held corporation having assets in excess of
$10,000,000), investor, officer, or director of a corporation (other than
Employer, or any parent, subsidiary, affiliate or successor of Employer), or as
an employee, agent, associate, or consultant of any person, partnership,
corporation or other business entity, in competition with any business carried
on, directly or indirectly, by Employer prior to the date hereof or hereafter
conducted, directly or indirectly, by Employer during the term of this
Agreement, in any county where business is then carried on or conducted by
Employer, subject to paragraph 2B hereof.
(d) Executive agrees that the remedy at law for any breach by him of any
of the covenants and agreements set forth in this Section 3 will be inadequate
and that in the event of any such breach, Employer may, in addition to the other
remedies which may be available to it at law, obtain injunctive relief
prohibiting him (together with all those persons associated with him) from the
breach of such covenants and agreements.
(f) The parties hereto intent that the covenants and agreements contained
in this Section 3 shall be deemed to include a series of separate covenants and
agreements. If, in any judicial proceeding, a court shall refuse to enforce all
of the separate covenants deemed included in such action, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purposes of such proceeding to the extent necessary to permit the
remaining separate covenants to be enforced in such proceeding.
4. COMPENSATION.
4.1 SALARY. For the services to be rendered by Executive during the
first year of the term of this Agreement, Employer shall pay Executive an annual
salary of One Hundred Thousand Dollars ($100,000), payable semi-monthly and
subject to income tax withholdings and other payroll deductions as customary in
respect of Employer's salaried employees in general. The base salary of
Executive for the second year of this Agreement will be determined by the
Compensation Committee of the Board of Directors, but will be no less than One
Hundred Twenty Thousand Dollars ($120,000).
4.2 BONUS. Executive shall be entitled to participate in such bonus
plans of Employer applicable to senior executives of Employer as determined by
the Board of Directors of Employer in its sole discretion. Notwithstanding the
foregoing, it is the intention of the Employer to pay Executive a bonus greater
than One Hundred Thousand Dollars ($100,000) for each year of the term of this
Agreement, within thirty days of the end of each year of employment hereunder.
Criteria for the determination of the amount of said bonus will be as agreed
upon by the Executive and the Chairman of the Board within forty-five days of
the date of this Agreement.
4.3 VACATION. Executive shall be entitled to four weeks' paid
vacation for each year during the term of this Agreement.
4.4 MEDICAL INSURANCE. During the term of this Agreement Employer
shall furnish Executive with the same medical and hospital insurance furnished
to other executive employees of Employer.
4.5 STOCK OPTIONS. Upon the execution of this agreement, Employer
shall grant stock options to Executive covering 400,000 shares of Common Stock
of Employer. Such options shall be exercisable at a price of $3.00 per share,
and shall have a 10 year term. The options shall vest as follows: 62,500
options on June 16, 1997, September 16, 1997, December 16, 1997 and March 16,
1998, provided that the Executive is still employed by Employer at each date of
vesting. The remaining 150,000 options shall vest with respect to 37,500 shares
on the following dates: June 16, 1998, September 16, 1998, December 16, 1998 and
March 16, 1999, provided that the Executive is still employed by Employer at
each date of vesting. In the event Executive is terminated without cause, all
of such stock options shall immediately vest. The shares covered by these
options are the subject of a S-8 Registration Statement currently on file with
the Securities and Exchange Commission.
5. EXPENSES. Employer will pay or reimburse Executive for such
reasonable travel, entertainment, or other expenses as he may incur at the
request of Employer during the term of this agreement in connection with the
performance of his duties hereunder. Executive shall comply with such expense
reporting requirements as may be generally applicable to executive officers and
employees of the Company.
6. DEATH OR TOTAL DISABILITY OF EXECUTIVE. If Executive dies, or becomes
totally disabled (for a period of more than six (6) consecutive weeks), during
the term of this Agreement, Executive's employment under this Agreement shall
automatically terminate and all of Executive's benefits and all payments to
Executive under this Agreement shall immediately terminate.
7. TERMINATION FOR CAUSE. Executive's employment under this Agreement
may be terminated by Employer for "good cause." The term "good cause" is
defined as any one or more of the following occurrences:
(a) Executive's breach of any of the covenants contained in Section 3
of this Agreement;
(b) Executive's conviction by, or entry of a plea of guilty or nolo
contendere TO A FELONY;
(c) Executive's commission of a knowing act of fraud, whether prior
to or subsequent to the date hereof upon, Employer;
(d) Executive's continuing failure or refusal to perform his duties
as required by this Agreement;
(e) Executive's gross negligence, insubordination, material violation
of any duty or loyalty to Employer or any other material misconduct relating to
the business or good will of Employer.
8. MISCELLANEOUS.
8.1 MODIFICATION AND WAIVER OF BREACH. No waiver or modification of
this Agreement shall be binding unless it is in writing signed by the parties
hereto. No waiver of a breach hereof shall be deemed to constitute a waiver of
a future breach, whether of a similar or dissimilar nature.
8.2 COMPLETE AGREEMENT. The Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersedes all previous oral and written and
all contemporaneous negotiations, commitments, writings, and understandings and
is and shall be binding upon and inure to the benefit of Employer, its
successors and permitted assigns and Executive, his heirs, executors and
administrators.
8.3 LEGAL FEES. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default or misrepresentation in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
8.4 ASSIGNMENT. This Agreement may not be assigned in any manner
whatsoever.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the day
and year first above written.
EXECUTIVE: EMPLOYER:
AVIC GROUP INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Address of Executive: 0 Xxxxx Xxxx
Xxxxxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------
Chairman
EXHIBIT "A"
OUTSIDE DIRECTORSHIPS OF
XXXXXX X. XXXXXXX
COMPANY OWNERSHIP INDUSTRY ANNUAL DAYS
Northwestern Steel and
Wire Company Public Steel 5
B. Manischwitz Kohlberg Food Mfg. 5
Bay Area Foods Kohlberg Food Retail 2
Magnavision Kohlberg/Public Pvt. Cable 12
Satellite
Ithaco/Space Sciences Kohlberg Components 5
Shrine of St. Xxxxxx Not-for-Profit 6
National NF Foundation Not-for-Profit 2
St. Joseph's University Not-for-Profit 5
Square Earth, Inc. Private Internet 2
TOTAL 44
