EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.28
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the
6th day of April, 2006 (the “Effective Date”), between Gulfstream Training Academy,
Inc., a Florida corporation, whose principal place of business is 0000 Xxxxxxx Xxxx, Xxxx
Xxxxxxxxxx, XX 00000, and any of its successors or affiliated companies (collectively the
“Company”) and Xxxx Xxxxxxx, an individual, whose address is 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, XX
00000 (the “Executive”).
RECITALS
A. The Company is principally engaged in the business of marketing, soliciting and training
for potential pilots for airline training programs.
B. The Company desires to employ the Executive and the Executive desires to be employed by the
Company.
C. The Company has established a valuable reputation and goodwill in its business, with
expertise in all aspects of the Business.
D. The Executive, by virtue of the Executive’s employment with the Company, will become
familiar with and will be possessed with the manner, methods, trade secrets and other confidential
information pertaining to the Company’s business.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the Company and the
Executive do hereby agree as follows:
1. RECITALS. The above recitals are true, correct and are herein incorporated by
reference.
2. EMPLOYMENT. The Company hereby employs the Executive and the Executive hereby
accepts employment, upon the terms and conditions hereinafter set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT
a. Duties and Responsibilities. During the term of this Agreement, the Executive
shall serve as President of the Company and shall have general executive operating supervision over
the property, business, and affairs of the Company, its subsidiaries and divisions, subject to the
guidelines and direction of the Chief Executive Officer and the Board of Directors of the Company.
b. Time Devoted. Throughout the term of the Agreement, the Executive shall devote
substantially all of the Executive’s business time and attention to the business and affairs of the
Company consistent with the Executive’s senior executive position with the Company, except for
reasonable vacations and except for illness or incapacity, but nothing in the Agreement shall
preclude the Executive from engaging in personal business including as a member of the board of
directors of related companies, charitable and community affairs, provided that such activities do
not interfere with the regular performance of the Executive’s duties and responsibilities
under this Agreement.
4. TERM. The Term of employment hereunder will commence on the date as set forth
above and terminate two (2) years from the effective date, and such term shall automatically be
extended for each successive year thereafter unless (1) the parties mutually agree in writing to
alter or amend the terms of the Agreement; or (2) one or both of the parties exercises their right,
pursuant to section 6 herein, to terminate this employment relationship.
5. COMPENSATION AND BENEFITS
a. Base Compensation. For all services rendered by the Executive
pursuant to the terms of this Agreement and in consideration of the execution of
this Agreement by the Executive, the Company (i) shall pay to Executive a base
salary of $85,000.00 per year to be paid in twenty-six equal installments; and (ii)
a bonus calculated as 0.5% of the gross student revenue plus 1.5% of operating
income to be paid within sixty (60) days from the end of the quarter. The bonus is
to be paid only if gross revenues are equal to or greater than $800,000 dollars per
quarter. If the minimum threshold of $800,000 for gross revenue is not met in any
quarter, then the bonus shall not be paid. However, should the gross sales be equal
to or greater than $1.6 million dollars for the two most recent quarters, then the
bonus shall be paid for both consecutive quarters.
NOTE: During the first quarter of employment, the Executive will receive
$3,000.00 bonus for achieving the following levels:
Gross Income — $420,000 Operating Income — $13,742
b. Vacation. During each calendar year of the Company, the Executive
shall be entitled to three (3) weeks of vacation time.
Vacation must be taken at maximum of one week at a time and to utilize such
vacation as the Executives shall determine; provided, however, that the Executive
shall evidence reasonable judgment with regard to appropriate vacation scheduling.
(Vacation which is not used shall not be accrued in the Executive’s account as an
unused benefit for use in the future.)
c. Business Expense Reimbursement. During the term of employment, the
Executive shall be entitled to receive proper reimbursement for all reasonable,
out-of-pocket expenses, provided the Executive properly accounts therefore. The
Business Expense Reimbursements shall be administered in accordance with the
policies and procedures established by the Company for its senior executive officers
and may be adjusted at the sole discretion of the Company.
d. Benefits/Move Relocation — 30 days Hotel
6. TERMINATION
a. Death. In the event of the death of the Executive during the Term of the
Agreement, Compensation as defined in section 5(a) herein shall be paid to the Executive’s
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designated beneficiary, or, in the absence of such designation, to the estate or other legal
representative of the Executive for a period of two (2) months from and after the date of death.
In addition, all other outstanding and accrued Vacation and Business Expenses at the time of death
as defined in sections 5(b) and (c) herein shall be paid in full within thirty (30) days following
the date of death.
b. Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from terminating the Executive for “Cause,” as
hereinafter defined. The Executive shall continue to receive compensation only for the period
ending with the date of such termination as provided in this Section 6.b. and shall be paid in full
all Base Compensation, Vacation, Business and Expense Reimbursement outstanding or accrued
as defined in Sections 5(a), (b), and (c) herein upon the date of such termination.
(2) “Cause” shall mean (i) committing or participating in an injurious act of fraud, gross
neglect, misrepresentation, embezzlement or dishonesty against the Company; (ii) committing or
participating in any other injurious act or omission wantonly, willfully, recklessly or in a manner
which was grossly negligent against the Company, monetarily or otherwise; (iii) engaging in a
criminal enterprise involving moral turpitude; (iv) an act or acts during the Term, constituting a
felony under the laws of the United States or any state thereof or if applicable, loss of any state
or federal license required for the Executive to perform the Executive’s material duties or
responsibilities for the Company; or (v) any assignment of this Agreement in violation of Section
15 of this Agreement.
c. Termination by the Company Other than for Cause. The foregoing notwithstanding,
the Company may terminate the Executive’s employment for whatever reason it deems appropriate;
provided, however, that in the event such termination is not based on Cause, as provided in Section
6.b. above, the Company may terminate this Agreement upon giving thirty (30) days’ prior written
notice. During such thirty (30) day period, the Executive shall continue to perform the
Executive’s duties pursuant to this Agreement, and the Company shall continue to compensate the
Executive in accordance with this Agreement. At the expiration of such thirty (30) day period, the
Company will pay the Executive a severance allowance equal to three (3) months’ compensation and
any Base Compensation, Vacation and Business Expense Reimbursement, outstanding or accrued as
defined in sections 5(a), (b), and (c), herein in full upon the expiration of such thirty (30) day
period.
d. Voluntary Termination. In the event the Executive terminates the Executive’s
employment on the Executive’s own volition (except as provided in Section 6e) prior to the
expiration of the Term of this agreement, including any renewals thereof, such termination shall
constitute a voluntary termination and in such event the Executive shall be limited to the same
rights and benefits as provided in connection with a Termination by the Company for Cause as
provided in Section 6.b. herein.
e. Constructive Termination of Employment. A termination by the Company without Cause
under Section 6.c. shall be deemed to have occurred upon the occurrence of one or more of the
following events without the express written consent of the Executive.
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(1) a significant change in the nature or scope of the authorities, powers, functions, duties
or responsibilities attached to Executive’s position as described in Section 3; or
(2) a material breach of the Agreement by the Company; or
(3) a material reduction of the Executive’s benefits under any employee benefit plan, program
or arrangement (for Executive individually or as part of a group) of the Company as then in effect
or as in effect on the Effective Date of the Agreement, which reduction shall not be effectuated
for similarly situated employees of the Company; or
(4) failure by a successor company to assume the obligations under this Agreement.
Anything herein to the contrary notwithstanding, the Executive shall give written notice to the
Board of Directors of the Company that the Executive believes an event has occurred which would
result in a Constructive Termination of the Executive’s employment under this Section 6.e., which
written notice shall specify the particular act or acts, on the basis of which the Executive
intends to so terminate the Executive’s employment, and the Company shall then be given the
opportunity, within fifteen (15) days of its receipt of such notice to cure said event. If said
event is not cured, the termination shall constitute a Termination by the Company Other than
for Cause and in such event the Executive shall receive the same rights and benefits as set
forth in connection with a termination under section 6.(c) herein.
7. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF INFORMATION
a. Covenant Not to Compete. The Executive acknowledges and recognizes the highly
competitive nature of the Company’s business and the goodwill and continued patronage constitute a
substantial asset of the Company having been acquired through considerable time, money and effort.
Accordingly, in consideration of the execution of this Agreement, the Executive agrees to the
following:
(1) That during the Restricted Period (as hereinafter defined) and within the Restricted Area
(as hereinafter defined), the Executive will not, individually or in conjunction with others,
directly or indirectly, engage in any Business Activities (as hereinafter defined), whether as an
officer, director, proprietor, employer, partner, independent contractor, investor (other than as a
holder solely as an investment of less than one percent (1%) of the outstanding capital stock of a
publicly-traded corporation), consultant, advisor, agent or otherwise.
(2) That during the Restricted Period and within the Restricted Area, the Executive will not,
directly or indirectly, compete with the Company by soliciting, inducing or influencing any of the
Company’s clients which have a business relationship with the Company at the time during the
Restricted Period to discontinue or reduce the extent of such relationship with the Company.
(3) That during the Restricted Period and within the Restricted Area, the Executive will not
(A) directly or indirectly recruit, solicit or otherwise influence any employee or agent of the
Company to discontinue such employment or agency relationship with the Company, or (B) employ or
seek to employ, or cause or permit any business which competes directly or
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indirectly with the Business Activities of the Company (the “Competitive Business”) to employ
or seek to employ for any Competitive business any person who is then (or was at any time within
six (6) months prior to the date Executive or the Competitive Business employs or seeks to employ
such person) employed by the Company.
(4) That during the Restricted Period the Executive will not interfere with, or disrupt or
attempt to disrupt any past, present or prospective relationship, contractual or otherwise, between
the Company and any customer, employee or agent of the Company.
b. Non-Disclosure of Information. The Executive acknowledges that the Company’s trade
secrets, private or secret processes, methods and ideas, as they exist from time to time, customer
lists and information concerning the Company’s products, services, training methods, development,
technical information, marketing activities and procedures credit and financial data concerning the
Company and/or the Company’s Clients, and (the “Proprietary Information”) are valuable, special and
unique assets of the Company, access to and knowledge of which are essential to the performance of
the Executive hereunder. In light of the highly competitive nature of the industry in which the
Company’s business is conducted, the Executive agrees that all Proprietary Information, heretofore
or in the future obtained by the Executive as a result of the Executive’s association with the
Company shall be considered confidential.
In recognition of this fact, the Executive agrees that the Executive, during the Restricted
Period, will not use or disclose any of such Proprietary Information for the Executive’s own
purposes or for the benefit of any person or other entity or organization (except the Company)
under any circumstances unless such Proprietary Information has been publicly disclosed generally
or, unless the Executive is legally required to disclose such Proprietary Information, in which
case, Executive will give Company advanced notice so the Company may seek an appropriate protective
order. Documents (as hereinafter defined) prepared by the Executive or that come into the
Executive’s possession during the Executive’s association with the Company are and remain the
property of the Company, and when this Agreement terminates, such Documents shall be returned to
the Company at the Company’s principal place of business, as provided in the Notice provision of
this agreement.
c. Documents. “Documents” shall mean all original written, recorded, or graphic
matters whatsoever, and any and all copies thereof, including, but not limited to: papers; books;
records; tangible things; correspondence; communications; telex messages, memoranda; work-papers;
reports; affidavits; statements; summaries; analyses; evaluations; client records and information;
agreements; agendas; advertisements; instructions; charges; manuals; brochures; publications;
directories; industry lists; schedules; price lists; client lists; statistical records; training
manuals; computer printouts; books of account, records and invoices reflecting business operations;
all things similar to any of the foregoing however denominated. In all cases where originals are
not available, the term “Documents” shall also mean identical copies of original documents or
non-identical copies thereof. d. Company’s Clients. The “Company’s Clients” shall be deemed to be
any persons, partnerships, corporations, professional associations or other organizations for whom
the company has performed Business Activities.
e. Restrictive Period. The “Restrictive Period” shall be deemed to be three (3)
months following termination of this Agreement.
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f. Restricted Area. Due to the national nature of the Business Activities, the
Restricted Area shall be deemed to mean within the continental United States.
g. Business Activities. “Business Activities” shall be deemed to include the
operations of a regional airline pilot training program and any additional activities which the
Company may engage in during the term of this Agreement.
h. Covenants as Essential Elements of this Agreement. It is understood by and between
the parties hereto that the foregoing covenants contained in Sections 7a and b are essential
elements of this Agreement, and that but for the agreement by the executive to comply with such
covenants, the Company would not have agreed to enter into this Agreement. Such covenants by the
Executive shall be construed to be agreements independent of any other provisions of this
Agreement. The existence of any other claim or cause of action, whether predicated on any other
provision in this Agreement, or otherwise, as a result of the relationship between the parties
shall not constitute a defense to the enforcement of such covenants against the Executive.
i. Survival after Termination of Agreement. Notwithstanding anything to the contrary
contained in this Agreement, the covenants in Sections 7a and b shall survive the termination of
this Agreement and the Executive’s employment with the Company and shall end at the conclusion of
the Restrictive Period as defined in section 7(e) herein.
j. Remedies.
(1) The Executive acknowledges and agrees that the Company’s remedy at law for a breach or
threatened breach of any of the provisions of Section 7a or b herein would be inadequate and the
breach shall be per se deemed as causing irreparable harm to the Company. In recognition of this
fact, in the event of a breach by the Executive of any of the provisions of Section 7a or b, the
Executive agrees that, in addition to any remedy at law available to the Company, including, but
not limited to monetary damages, all rights of the Executive to payment or otherwise under this
Agreement and all amounts then or thereafter due to the Executive to payment or otherwise under
this Agreement and all amounts then or thereafter due to the Executive from the Company under this
Agreement may be suspended and the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available to the Company.
(2) The Executive acknowledges that the granting of a temporary injunction, temporary
restraining order or permanent injunction merely prohibiting the use of Proprietary Information
would not be an adequate remedy upon breach or threatened breach of Section 7a or b and
consequently agrees, upon proof of any such breach, to the granting of injunctive relief
prohibiting any form of competition with the Company during the restrictive period. Nothing herein
contained shall be construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach.
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8. EXECUTIVE’S REMEDIES FOR BREACH OF THE AGREEMENT
(1) In the event of a breach by the Company of any of the provisions of the Agreement the
Company agrees that the Executive may undertake any remedy at law or equity available to the
Executive, including, but not limited to monetary damages.
(2) Nothing contained herein shall be construed as prohibiting the Executive from pursuing any
other legal and equitable remedies, including but not limited to, cancellation of the Covenant Not
to Compete and Non-Disclosure of Information as defined in Section 7 herein, available to it for
such breach or threatened breach.
9. INDEMNIFICATION. The Executive shall be indemnified and held harmless for all
actions within the course and scope of his employment and shall be covered by the Articles of
Incorporation and/or the Bylaws of the Company relative to indemnification with respect to matters
occurring on or prior to the date of termination of the Executive’s employment with the Company,
subject to all the provisions of Florida and Federal law and the Articles of Incorporation and
Bylaws of the Company then in effect. Reasonable expenses, including attorneys’ fees shall be paid
by the Company on a current basis in accordance with such provision, the Company’s Articles of
Incorporation and Florida law.
10. WITHHOLDING. Anything to the contrary notwithstanding, all payments required to
be made by the Company hereunder to the Executive or the Executive’s estate or beneficiaries shall
be subject to the minimum withholding of such amounts, if any, relating to tax and other payroll
deductions as the Company may reasonably determine it should withhold pursuant to any applicable
law or regulations. In lieu of withholding, such amounts, the Company may accept other
arrangements pursuant to which it is satisfied that such tax and other payroll obligations will be
satisfied in a manner complying with applicable law or regulation.
11. NOTICES. Any notice required or permitted to be given under the terms of this
Agreement shall be sufficient if in writing and if sent postage prepaid by registered or certified
mail, return receipt requested; by overnight delivery; by courier; or by confirmed telecopy, in the
case of the Executive to the Executive’s last place of residence as shown on the records of the
Company, or in the case of the Company to its principal office as set forth in the first paragraph
of this Agreement, or at such other place as it may designate.
12. WAIVER. Unless agreed in writing, the failure of either party, at any time, to
require performance by the other of any provisions hereunder shall not affect its right thereafter
to enforce the same, nor shall a waiver by either party of any breach of any provision hereof be
taken or held to be a waiver of any other preceding or succeeding breach of any term or provision
of this Agreement. No extension of time for the performance of any obligation or act shall be
deemed to be an extension of time for the performance of any other obligation or act hereunder.
13. COMPLETENESS AND MODIFICATION. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and contemporaneous agreements or
understandings among the parties hereto concerning the Executive’s employment with the Company.
This Agreement may be amended, modified, superseded, or canceled, and any of the terms, covenants,
representations, warranties, or conditions hereof may be waived, only by a written instrument
executed by the parties or, in the case of a waiver, by the party to be charged.
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14. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute but one agreement.
15. BINDING EFFECT OF ASSIGNMENT. This Agreement shall be binding upon the parties
hereto, their heirs, legal representatives, successors, and assigns. This Agreement shall not be
assignable by the Executive but shall be assignable by the Company in connection with the sale,
transfer or other disposition of its business or to any of the Company’s affiliates controlled by
or under common control with the Company.
16. GOVERNING LAW. This Agreement shall become valid when executed and accepted by
Company. The parties agree that it shall be deemed made and entered into in the State of Florida
and shall be governed and construed under and in accordance with the laws of the State of Florida.
Anything in this Agreement to the contrary notwithstanding, the Executive shall conduct the
Executive’s business in a lawful manner and faithfully comply with applicable laws or regulations
of the state, city, or other political subdivision in which the Executive is located.
17. FURTHER ASSURANCES. All parties hereto shall execute and deliver such other
instruments and do such other acts as may be necessary to carry out the intent and purposes of this
Agreement.
18. HEADINGS. The headings of the sections are for convenience only and shall not
control or affect the meaning or construction or limit the scope or intent of any of the provisions
of this Agreement.
19. SURVIVAL. Any termination of this Agreement shall not, however, affect the
ongoing provisions of this Agreement which shall survive such termination in accordance with their
terms.
20. SEVERABILITY. The invalidity or unenforceability, in whole or in part, of any
covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase
or word or of any provision of this Agreement shall not affect the validity or enforceability of
the remaining portions thereof.
21. ENFORCEMENT. Should it become necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the successful party will be awarded
reasonable attorneys’ fees at all trial and appellate levels, expenses and costs.
22. VENUE. Company and Executive acknowledge and agree that the U.S. District for the
Southern District of Florida, or if such court lacks jurisdiction, the Broward County Circuit Court
in and for Broward County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case of controversy arising either, directly or indirectly, under or in connection
with this Agreement and the parties further agree that, in the event of litigation arising out of
or in connection with this Agreement in these courts, they will not contest or challenge the
jurisdiction or venue of these courts.
23. CONSTRUCTION. This Agreement shall be construed within the fair meaning of each
of its terms and not against the party drafting the document.
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THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS OF THIS AGREEMENT,
UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND CONDITIONS.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of date set forth in the first
paragraph of this Agreement.
| Witness: | THE COMPANY: | |||||
| GULFSTREAM TRAINING ACADEMY, INC. | ||||||
/s/ Xxxxxxxxx X. Xxxxxx
|
By: | /s/ Xxxxxx X. Xxxxxx | ||||
| XXXXXX X. XXXXXX, CEO | ||||||
| Witness: | THE EXECUTIVE: | |||||
| /s/ Xxxxxxxxx X. Xxxxxx | /s/ Xxxx Xxxxxxx |
|||||
| By: | XXXX XXXXXXX | |||||
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