EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 31st day
of May, 1998, by and between XXXXXX XXXXXX, whose address is 0000 Xxxxxxx Xxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxxxxx, ("Employee"), and EYEQ NETWORKING, INC., a
Delaware corporation, whose address is The GSB Building, Xxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxxx, XX 00000 (hereinafter called "EyeQ, Employer or
Company").
WITNESSETH:
WHEREAS, EyeQ is in the business of buying and selling aircraft,
engines and parts and related products and materials (the "Business of
Employer"); and
WHEREAS, Employee will be employed as President, Chief Executive
Officer and Director of EyeQ and whose duties include responsibility for and
oversight of all day to day activities of EyeQ and other functions; and
WHEREAS, EyeQ does business, purchases inventory and has customers
throughout the world; and
WHEREAS, this Agreement sets forth in writing the understanding of the
parties agreed to between themselves to provide for the employment of Employee
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the above and foregoing premises
and the employment of the Employee during the term hereof, the parties agree as
follows:
1. Recitals. The above-mentioned recitals are true and correct and are
incorporated herein and by reference made a part of this Agreement.
2. Revocation of Prior Agreements. The parties do hereby cancel and
revoke all prior agreements and understandings whether oral or written, relating
to the subject matter of this Agreement. Without limiting the generality of the
preceding sentence, Employee and EyeQ hereby acknowledge that this Agreement
replaces and supersedes that certain Employment Agreement dated October 31, 1996
by and between Employee and JET Aviation Trading, Inc. ("JET") (the "Old
Agreement"), a Florida corporation and a majority-owned subsidiary of EyeQ;
provided, however, that any unpaid principal and/or accrued interest under that
certain promissory note referenced in Section 11(c) of the Old Agreement shall
continue to be an obligation of Employee payable to JET. Any reference herein to
obligations payable by, or to be performed by, Jet shall be interpreted to mean
that the Company shall cause Jet to satisfy such obligation.
3. Term of Employment. Subject to the provisions hereof, the Employer
hereby employs Employee for the period commencing as of the date hereof and
continuing until May 31, 2001, (the "Term") or unless sooner terminated as
provided herein. Each 12 month period of employment hereunder, commencing as of
the date hereof shall be called an "Employment Year." In the event the Employee
is still employed at the end of the Term, then this Agreement shall
automatically extend from month-to-month thereafter on all of these terms and
conditions except that paragraph 11(b) and 12(b)(ii) shall not apply.
4. Employment Duties. Employee shall serve the Employer as and in the
specific capacity of President, Chief Executive Officer and as a Director of the
Employer. Employee shall be in charge of and oversight of all operating
activities of the Employer and shall be responsible for general oversight and
management of day to day operations of the Employer and such other duties as may
reasonably be required by the elected Board of Directors of EyeQ (the "Board").
Employee covenants and agrees to devote his full time and energies, and his best
efforts and business judgments exclusively to the business of the Employer and
to perform such duties to the best of his ability and to observe all reasonable
policies, rules and regulations as determined and imposed by the Employer for
operation of the Employer's business. The Employee shall report to the Board,
who shall direct, control and supervise the duties to be performed.
5. Vacation. Employee shall be entitled to three (3) weeks of vacation
time during each year of his employment, one and one half weeks of which shall
accrue every six (6) months. Such vacation shall be with full pay and other
benefits provided hereunder. Vacation may be taken prior to accrual, but salary
paid for any such vacation not accrued will be returned by Employee at
termination. The time of vacation shall be selected in such manner as not to
conflict with the Employer's operations, and Employee's employment duties;
however, Employer shall not unreasonably constrain Employee's time of vacation.
Employee shall give Employer reasonable notice of his intended vacations. Up to
two weeks of vacation may be rolled-over to the following year if allotted
vacation time was not used in the previous year. In no event may Employee take
more than two weeks of vacation in a row. If allotted or rolled-over vacation is
not fully used prior to termination, Employee shall be compensated for each
unused vacation.
6. Sick Leave. As determined by the Employer, the Employee shall be
entitled to a reasonable number of days of sick leave with full pay during each
calendar year.
7. Confidential Information. All records of the Employer which include,
but are not limited to, advertising, sales, other materials or articles of
information, including without limitation, data processing reports, computer
software and/or media containing Employer's confidential information, customer
lists, supplier lists, purchasing information, customer sales analysis and
patterns, invoices, price lists or information, samples, or any other materials
or data of any kind furnished to Employee by the Employer, acquired by Employee
while employed by the Employer, or developed by Employee on behalf of the
Employer or at the Employer's direction or for the Employer's use or otherwise
in connection with Employee's employment hereunder, are and shall remain the
sole and confidential property of the Employer. Employee acknowledges that such
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information is proprietary trade secrets of Employer. All or any such materials
and records shall hereinafter be known as "Confidential Information." If the
Employer requests the return of such Confidential Information at any time
during, at, or after the termination of Employee's employment hereunder,
Employee shall immediately deliver the same and all copies or excerpts thereof
to Employer.
8. Covenants During Employment. While employed by the Employer,
Employee agrees that he will not, without the written consent of the Board:
(a) Unless authorized to do so by the Board, make, draw, accept or
endorse any contract, lease, promissory note, or otherwise instrument requiring
the payment of money by the Employer nor shall he use any money belonging to the
Employer or pledge is credit except in the usual and regular course of business
and exclusively on account, or for the benefit of the Employer;
(b) Release or discharge any debtor of the Employer without
receiving the full amount thereof;
(c) Make any statement or perform any act intended to advance an
interest of any existing or prospective competitor of the Employer in any way
that will or may reasonably be thought to injure an interest of the Employer in
its relationships and dealings with existing or potential customers or solicit
or encourage any other employee of the Employer to do any act that is intended
to be disloyal to the Employer or inconsistent with the Employer's best interest
or in violation of any provision of this Agreement;
(d) Compete in any manner, directly or indirectly with the business
of the Company or in any field connected with aviation, aircraft, aircraft
parts, or the like.
9. Nondisclosure. The Employee shall not, at any time during the term
of this Employment Agreement or at any time thereafter, except as may be
authorized by EyeQ in writing disclose or make use of, directly or indirectly,
EyeQ's customer list or supplier list or any other Confidential Information for
his own benefit, for the benefit of others engaged in the same business as EyeQ
or for others who Employee believes or should reasonable believe might or could
enter into EyeQ's business. Employee acknowledges the material adverse impact to
Employer due to any breach by Employee of these provisions, no matter how small,
and that any such breach shall cause him to forfeit any unpaid amounts set forth
in Paragraph 11(b)(ii) below.
10. Non-Compete. a) In the event of termination of Employee's
employment with EyeQ without cause or if Employee voluntarily leaves employment
and Employer elects to pay Employee Severance Pay under paragraph (12)(b)(iii),
hereof, it is agreed that Employee will not, for a period of one year
thereafter, (the "Non-Compete Period") directly or indirectly, either as a
individual, employee, agent, partner, shareholder, owner or otherwise (a) call
on solicit or accept the Customers of EyeQ or JET, as the case may be (as
defined below) for the purpose of selling or the sale of those types of products
or services which EyeQ or JET, as the case may be, sold during the two year
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period preceding Employee's termination, either for himself or for any other
person or competing business; or (b) call on, solicit or seek to purchase
supplies, materials or inventory for resale or use of the type purchased by EyeQ
or JET, as the case may be, from the Vendors of EyeQ or JET, as the case may be,
(as defined below) or (c) be employed, consult for, or in any way render
services to any business engaged in the sale and or distribution of the type of
products or services which EyeQ or JET, as the case may be, does or has sold or
distributed within the previous twelve month period and in any geographic area
where EyeQ or JET, as the case may be, regularly does business at the time of
Employee's termination from employment. "Customers of EyeQ or JET" shall mean
those persons or entities, including their affiliates, parents, subsidiaries
franchisers or franchisees, wherever located in the world who purchased any
products or services of EyeQ or JET, as the case may be, within the twelve month
period preceding Employee's termination, upon whom Employee called, with whom
Employee because acquainted, or whose name Employee learned during his
employment with EyeQ or JET, as the case may be. "Vendors of EyeQ or JET" shall
mean those persons or entities including their affiliates, parents,
subsidiaries, franchisers or franchisees, who sold raw or finished goods or
supplies to EyeQ or JET within the twelve month period preceding Employee's
termination upon whom Employee called, with whom Employee became acquainted, or
whose name Employee learned during his employment with EyeQ or JET, as the case
may be.
11. Compensation.
(a) Basic Compensation in each year of Employee's Term of
Employment. Employee shall receive as basic compensation ("Basic Compensation")
for all services rendered by the Employee hereunder, an annual salary during
each Employment Year, or prorated for a partial Employment Year of $175,000,
payable in accordance with the customary payroll practices of Employer, but in
no event less frequently than semi-monthly. The Basic Compensation shall be paid
by Jet.
At the end of each Employment Year, Employee and Employer shall
negotiate in good faith any increase in Basic Compensation as may be appropriate
for the next Employment Year.
(b) Bonuses. In addition to the amounts paid to Employee pursuant
to (a) above, if Employee is still employed by Employer on the first anniversary
of the date hereof, and at the end of year fiscal year thereafter, Employee
shall be entitled to a cash bonus based upon the Company's and Jet's results of
operations for the fiscal year ending on the first anniversary of the date
hereof, and each fiscal year thereafter that Employee is still employed
hereunder, on the following terms and conditions:
Employee shall be entitled to a bonus of 3% of the Pre-Tax Net
Income of the Company for such fiscal year, provided, however,
that the Pre-Tax Net Income of the Company attributable to Jet
shall be excluded from such Pre- Tax Net Income of the Company
for purposes of the calculation of such bonus. Such bonus shall
be paid by the Company. The Employee shall also be entitled to
a bonus of 3% of the Pre-Tax Net Income of Jet for such fiscal
year. Such bonus shall be paid by Jet.
"Pre-Tax Net Income" shall be defined as net income of the
Company or Jet, as applicable, determined under generally
accepted accounting principles.
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(c) Health Insurance and Benefits. During the Term, the Company
shall pay for Employee's life, dental and health insurance coverage under the
Company's group health insurance plan in effect for the employees of the Company
and such other benefits as are commensurate with executives in Employee's
position.
(d) Employee shall be granted options to purchase 200,000 shares of
Common Stock of the Company at $2.50 under the stock option plan of the Company
duly adopted by the Company's Board of Directors. Such options shall expire five
(5) years from the date hereof. All such options shall vest upon execution of
this Agreement.
(e) Deductions from Compensation. Any amounts payable to Employee
hereunder shall be subject to reduction and withholding for Social Security,
withholding taxes and any other such taxes or deductions as may from time to
time be required to be withheld by Employer pursuant to applicable governmental
authority.
12. Termination.
(a) General.
This Agreement shall terminate upon the Employee's termination of
employment, but the terms of the paragraphs herein which contemplate acts, the
restraint of acts, or payments after the termination or expiration hereof, and
the representations and warranties made herein, shall survive the termination of
this Employment Agreement for any reason. Employee's employment hereunder shall
be terminated upon the happening of any of the following events:
1) the death of the Employee;
2) the permanent disability of the Employee, as more fully
discussed in Article 13 hereof;
3) upon the expiration of the Term of this Employment Agreement
according to its terms;
4) for cause; for these purposes, "cause" shall include:
(i) the conviction of Employee of a crime involving moral
turpitude;
(ii) an act of dishonesty either involving Employee's
employment or harmful to Employer or other employees,
including fraud, misappropriation, embezzlement or the
like;
(iii) the misfeasance, malfeasance or non-feasance of
Employee in carrying out the duties of Employee's
employment with Employer, not cured within thirty (30)
days prior notice.
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(b) Payment Upon Termination.
i. Death or Disability. Upon termination of Employee's
employment hereunder at the end of the Term or because of the death or permanent
disability of Employee, Employee or in the event of his death or his mental
incapacity his personal representative, shall be paid his Basic Compensation
hereunder for the greater of (a) twenty-four (24) months or (b) the remainder of
the Term. In addition, if termination of this Agreement is due to the death of
the Employee, his estate shall be entitled to the payment of the Employee's
Basic Compensation for twenty-four (24) months after the date of Employee's
death.
ii. Termination For Cause or Voluntary Leaving. Upon termination
of Employee's employment hereunder for cause or voluntary leaving as
compensation for services rendered during the term of this Agreement to the date
of termination, Employee shall be paid his Basic Compensation hereunder prorated
through the date of termination, and no other amounts hereunder. Any amounts
which have been prepaid will be returned by Employee or his personal
representative.
iii. Dismissal. Upon termination of Employee's employment
hereunder, for reasons not for cause, death, permanent disability, his voluntary
leaving (except as provided herein) or the expiration of the Term hereof, such
reasons to include, without limitation, the dismissal of the Employee by
Employer for reasons not for cause, or the dissolution of the Employer, Employee
shall be entitled to receive lump sum compensation equal to three (3) times his
Basic Compensation, or in the event of a change in control, status or authority
of the Company or following termination of Employee's employment under this
Employment Agreement immediately above ("Severance") and such amounts as he may
be entitled to as are set forth in paragraph 11 prorated, annualized and
calculated through the date of termination; provided, however, that Employee
shall receive no such Severance in the event his employment is terminated as a
result of a merger with, or an acquisition of or by, another entity approved by
the Board of Directors of the Company. If Employee voluntarily leaves, at
Employer's election it may pay Employee Severance Pay for so long as Employee
does not compete with Employer under the terms of Paragraph 10 hereof. These
payments shall cease however should Employee breach the provisions of paragraph
7, 9 or 10 hereof, in addition to the other remedies therefor of Employer
hereunder. Notwithstanding the foregoing, if the Employee's duties or
responsibilities are substantially diminished by the Board of Directors of the
Company, the Employee may terminate his Employment hereunder, and the Employee
shall be entitled to the Severance set forth above.
13. Disability.
(a) In the event that Employee incurs a disability of either a
physical or mental character which, in the opinion of a physician selected by
the Employer, which physician shall be approved by Employee (which approval
shall not be unreasonably withheld), renders him disabled from performing the
usual and customary duties to be rendered hereunder or heretofore rendered by
Employee, he shall receive his full Basic Compensation for the first thirty-six
(36) months or any part thereof of continuous disability.
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(b) No disability shall be deemed to exist until after Employee
shall be unable to perform his duties for thirty (30) days; but after such
disability continues for thirty (30) consecutive days, then the same shall be
deemed to have existed from the first day of such disability.
(c) If the Employee does not recover and resume his duties within
ninety (90) days from the date he is deemed to have become disabled, Employee
may, unless the physician selected in paragraph 11(a) above certifies that
Employee is again capable of performing his usual and customary duties with or
without reasonable accommodation, at the election of the Board of Directors, be
deemed to have become permanently disabled at the beginning of such disability.
(d) (i) If Employee shall have been disabled and shall have
returned to work after the end of such disability, any recurrence of the same
disability commencing within one hundred eighty (180) days of the termination of
the prior period of disability shall be deemed to be a continuation of the prior
disability, and the periods of such disabilities shall be added together to
determine the rights of the parties hereunder.
(ii) If Employee shall have been disabled and shall have
returned to work after the end of such disability, any new and unrelated
disability occurring thereafter shall be treated as if the previous and
unrelated disability had not occurred.
(e) Services During Disability. During the period that Employee
shall be entitled to receive payments under this Article and to the extent that
he is physically and mentally able to do so, he shall furnish information and
assistance to the Employer and comply with the provisions hereof; and, in
addition, upon reasonable request in writing on behalf of the Employer, he shall
make himself available to the Employer to undertake reasonable assignments
consistent with the dignity, importance and scope of his prior position and his
physical and mental health.
14. Reformation. If elements of the agreements set forth in the above
paragraphs would otherwise be determined to be invalid or unenforceable by a
court of competent jurisdiction, the parties intend and agree that such court
shall exercise its discretion in reforming the elements of this Agreement to the
end the Employer and Employee shall be subject to an employment agreement, a
nondisclosure covenant and related covenants as close as possible to the terms
in the paragraphs above and which are enforceable by Employer or Employee.
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15. Essence. Employee agrees that the covenants and agreements
contained herein are the essence of this Agreement and that such covenants and
agreements are reasonable and necessary to protect and preserve the interests
and properties of Employer and Employee; that irreparable loss and damage will
be suffered by Employer should Employee breach any of such covenants and
agreements; that each of such covenants and agreements is separate, distinct and
severable, not only from the other of such covenants and agreements but also
from the other and remaining provisions of this agreement; that the
enforceability of any such covenant or agreement shall not affect the validity
or enforceability of any other such covenants or agreements or provisions of
this Agreement and that the covenants and agreements shall be fully enforceable
irrespective of how long Employee has been in the employment of Employer.
16. Remedies.
(a) Employee agrees and understands that Employer has acted in
reliance on the provisions of this Agreement in employing Employee and would not
continue to employ Employee if Employee did not execute this Agreement.
(b) In the event that Employee shall breach any or all of the
covenants and agreements set forth in paragraph 9 or 10 subsequent to the
termination of his employment, Employee agrees that the running of the period of
restrictions set forth in paragraphs 9 or 10 shall be tolled during the
continuation(s) of any such breach or breaches by the Employee and the running
of the period of such restrictions shall commence or commence again only upon
compliance by the Employee with the terms of the applicable paragraphs breached.
(c) Employee agrees that in the event he shall breach any of the
above covenants and agreements, damage to Employer shall be presumed in any
legal action by Employer against Employee for damages. Employer shall be
entitled to collect actual damages caused by Employee's breach of any of the
covenants and agreements. In addition to the above remedy and other remedies
available to it, Employer shall be entitled to both permanent and temporary
injunctions, without the posting of a bond and without the need to prove
irreparable harm, to prevent a breach or contemplated breach by Employee of any
of the above covenants or agreements.
17. Miscellaneous.
(a) Binding Agreement. All the terms, covenants, representations,
warranties and conditions of this Agreement shall be binding upon and inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors, heirs at law, legatees, distributees, executors, administrators and
other legal representatives.
(b) Waiver. No term or condition of this Agreement shall be deemed
to have been waived nor shall there be any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition for the future or as to any
act other than that specifically waived.
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(c) Severability. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held to be invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect.
(d) Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally, given by
prepaid telegraph or mailed first class, postage prepaid, registered or
certified mail, return receipt requested, to Employer or Employee at their
respective addresses set forth in this Agreement or to any other address of
which notice of the change is given to the parties hereto.
(e) Governing Law. The construction, interpretation, validity and
performance of this Employment Agreement shall be governed by the laws of the
State of Florida. The parties agree that venue for any action shall be in Dade
County, Florida.
(f) Entire Agreement. This instrument contains the entire agreement
between the parties hereto with respect to the subject matter hereof and no
prior or collateral promises or conditions in connection with or with respect to
the subject matter hereof no incorporated herein shall be binding upon the
parties hereto.
(g) Modification. No modification, extension, renewal, recision,
termination or waiver of any of the provisions contained herein or any future
representation, promise or condition in connection with the subject matter
hereof, shall be binding upon any of the parties unless made in writing and duly
executed by the parties or their authorized representative.
(h) Headings. The section and paragraph headings contained in this
Employment Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this document.
(i) Attorney's Fees and Expenses. Employer and Employee agree that,
if either party has to employ an attorney to enforce this Agreement, the
non-prevailing party shall pay reasonable costs, expenses, attorney's fees and
paralegal fees through and including any appeals, settlement or negotiations
required to enforce this Employment Agreement incurred by the prevailing party.
(j) Material Inducement. Employer and Employee agree and understand
that both parties hereto have acted in reliance on this Employment Agreement in
executing this Agreement and the covenants contained herein are a material
inducement for both parties hereto to do so.
(k) Survival. The terms of the paragraphs herein which contemplate
acts, the restraint of acts, or payments after the termination or expiration
hereof and the representations and warranties made herein shall survive the
termination of this Agreement or Employee's employment hereunder for any reason.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers hereunto duly
authorized and Employee has signed this Agreement all as of the day and year
first above-written.
EMPLOYER
Attest: EYEQ NETWORKING, INC.
BY:________________________________ BY: /s/ Xxxxxx Xxxxxx
Its Secretary ---------------------------------
Title: President
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(Corporate Seal)
EMPLOYEE
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
Witnesses:
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