EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 7th day of January, 2000 by and between
XXXXXXX X. XXXX, residing at #0 Xxxxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000 ("Executive"), and AVIATION DISTRIBUTORS, INC., a California
corporation, with offices at Xxx Xxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx
00000-0000 (the "Company"), for the purpose of setting forth the terms and
conditions of Executive's employment by the Company and to protect the Company's
knowledge, expertise, customer relationships and the confidential information
the Company has developed regarding clients, customers, shareholders, option
holders, employees, products, business operations and services. As of the
Effective Date (defined in Section 2 below), this Agreement supersedes any prior
understandings or agreements between Executive and the Company or any of the
Company's subsidiaries or affiliates.
The Board of Directors of the Company (the "Board") acknowledges that
Executive has been engaged by the Company since July 1, 1999 as a consultant.
The Board of Directors expects that Executive's contribution to the growth and
success of the Company as a full-time employee will be substantial. Therefore,
the Board desires to provide for the continued employment of Executive and to
make provisions in Executive's employment arrangements with the Company that the
Board has determined will encourage the continued attention and dedication to
the Company of Executive as a member of the Company's management, in the best
interest of the Company and its shareholders. Executive is willing to commit
himself to serve the Company on the terms and conditions herein provided.
In order to effect the foregoing, the Company and Executive wish to enter
into an employment agreement on the terms and conditions set forth below. In
consideration of the premises and the respective covenants and agreements of the
parties herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. TIME AND EFFORTS
1.1 Executive shall be employed as the Company's Chairman of the Board and
Chief Executive Officer and shall devote his full-time attention to the duties
and responsibilities of those offices in furtherance of the Company's business.
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1.2 In the performance of all of his responsibilities hereunder, Executive
shall be subject to all of the Company's policies, rules, and regulations
applicable to its officers and employees generally and its Chairman of the Board
and Chief Executive Officer specifically. Executive shall report to the Board of
Directors.
1.3 Executive shall be a member of the Board of Directors during the term
of this Agreement.
1.4 Without the prior express authorization of the Board, Executive shall
not, directly or indirectly, during the term of this Agreement engage in any
activity competitive with or adverse to the Company's business, whether alone,
as a partner or independent contractor, or as an officer, director, or employee
of any other corporation. This Agreement shall not be interpreted to prohibit
Executive from making passive personal investments, conducting private business
affairs, or engaging in educational or charitable activities, if those
activities do not materially interfere with the services required hereunder.
1.5 In order to induce the Company to enter into this Agreement, Executive
represents and warrants to the Company that (i) Executive is not a party or
subject to any employment agreement or arrangement with any other person, firm,
company, corporation or other business entity; and (ii) Executive is subject to
no restraint, limitation or restriction by virtue of any agreement or
arrangement, or by virtue of any law or rule of law or otherwise which would
impair Executive's right or ability to enter the employ of the Company or to
perform fully his duties and obligations pursuant to this Agreement.
1.6 Without first obtaining the written permission of the Board in each
instance, Executive will not authorize or permit the Company to engage the
services, of, or engage in any business activity with, or provide any financial
or other benefit to, any affiliate of Executive. The phrase "affiliate of
Executive" as used in this Agreement shall mean and include Executive's family
by blood or marriage (including, without limitation, parents, spouse, siblings,
children and in-laws), and any business or business entity which is directly or
indirectly owned or controlled by Executive or any member of Executive's family
or in which Executive or any member of Executive's family has any direct or
indirect financial interest whatsoever.
2. TERM
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The term of this Agreement is from December 1, 1999 (the "Effective Date")
until December 31, 2001.
3. TERMINATION
This Agreement shall be terminated upon the happening of any of the
following events:
3.1 Upon the death of Executive.
3.2 Upon the dissolution of the Company.
3.3 Whenever the Company and Executive shall mutually agree to termination.
3.4 At the option of the Company, upon written notice by the Company to
Executive, for Cause. "Cause" shall exist for such termination if Executive (i)
pleads or is found guilty of a felony involving an act of dishonesty or moral
turpitude by a court of competent jurisdiction; (ii) has engaged in serious
misconduct; (iii) has made any material misrepresentation or omission to the
Company under Section 1.5 hereof; (iv) has committed a willful, unexcused breach
of his duty in the course of Executive's employment; (v) has been guilty of
habitual neglect of Executive's duties; (vi) has usurped a corporate
opportunity, is guilty of fraudulent embezzlement of property or funds of the
Company, or committed any act of fraud or intentional misrepresentation moral
turpitude, dishonesty or other misconduct that would constitute a felony; or
(vii) has committed a material, unexcused breach of this Agreement.
3.5 At the option of Executive, upon 90 days written notice by Executive to
the Company.
3.6 If as a result of Executive's incapacity due to physical or mental
illness, Executive shall have been absent from his duties hereunder on a
full-time basis for the entire period of six consecutive months, and within 30
days after written notice of termination is given (which may occur before or
after the
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end of such six-month period) shall not have returned to the
performance of his duties hereunder on a full-time basis, the Company may
terminate Executive's employment hereunder.
3.7 Upon the expiration of the term of this Agreement, or any extension or
renewal thereof.
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4. COMPANY'S AUTHORITY
Executive agrees to observe and comply with the reasonable rules and
regulations of Company as adopted by the Board of Directors of the Company or
committee of the Board of Directors respecting performance of Executive's duties
and to carry out and perform orders, directions, and policies of Company as they
may be, from time-to-time, stated to Executive either verbally or in writing.
5. VACATION
During each calendar year of the term of this Agreement, Executive shall be
entitled four weeks of paid vacation. Executive shall be entitled to receive
payment for accrued vacation not taken during each calendar year during the term
of this Agreement or may accrue such vacation for use in a subsequent calendar
year; however Executive shall not be entitled to more than four weeks of accrued
vacation from a prior year during any calendar year.
6. CURRENT COMPENSATION
6.1 ANNUAL SALARY. For all services rendered by Executive under this
Agreement, the Company shall pay or cause to be paid to Executive, and Executive
shall accept the annual Salary and Incentive Compensation, if any, all in
accordance with the subject to the terms of this Agreement. For purposes of this
Agreement, the term "Compensation" shall mean the Annual Salary and Incentive
Compensation, if any. Executive shall be entitled to receive as current
compensation an annual salary in the amount of $120,000 per annum (hereinafter
referred to as the "Annual Salary"). References in this Agreement to "annual" or
"per annum" or "Annual" and similar phrases shall mean the twelve-month period
commencing on January 1st of each year during the term of this Agreement unless
otherwise indicated.
6.2 INCENTIVE COMPENSATION. In addition, Executive shall be entitled to
annual Incentive Compensation in accordance with the Company's Executive
Incentive Compensation Plan. The Company acknowledges the current Executive
Incentive Compensation Plan provides for the contribution of 7.5% of the
Company's earnings before taxes to a senior management bonus pool to be
allocated in accordance
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with the determination of the Board of Directors, not to exceed the contribution
of $250,000 annually. In addition, Executive shall be entitled to bonus
compensation declared at the discretion of the outside members of the Board of
Directors from time to time.
6.3 401(k) PLAN. Executive shall be entitled to participate in the
Company's 401(k) or other similar retirement benefit plan.
6.4 PAYMENTS OF CURRENT COMPENSATION. The payment of Executive's Annual
Salary shall be made in semi-monthly installments on the then prevailing paydays
of the Company. Any payment for Incentive Compensation will be made in
accordance with the Executive Incentive Compensation Plan, and payment will be
made in one lump sum concurrently with payments made to others in senior
management. All payments are subject to the customary withholding tax and other
employment taxes as required with respect to compensation paid to an employee.
6.5 PAYMENT OF COMPENSATION ON TERMINATION OTHER THAN FOR DISABILITY OR
WITHOUT CAUSE. Upon termination of Executive's employment prior to the
expiration of this Agreement, if such termination is pursuant to Section 3.1,
3.2, 3.3, 3.4, 3.5 or 3.7 hereof, Executive shall be entitled to any Annual
Salary and vacation accrued but unpaid through the date of termination of
employment. All such compensation pursuant to this Section 6.5 shall be paid
upon termination.
6.6 PAYMENT OF COMPENSATION ON TERMINATION WITHOUT CAUSE. Upon termination
of Executive's employment prior to the expiration of this Agreement without
cause, Executive shall be entitled to Annual Salary through the end of the term
of this Agreement, payable in semi-monthly installments in accordance with the
provisions of Section 6.4 above.
7. COMPENSATION ON DISABILITY
7.1 DISABILITY BENEFITS. If Executive shall become disabled, as defined in
Section 3.6, during each of the first three months after such determination of
disability during the term of this Agreement, the Company shall continue to pay
to or for the benefit of Executive the benefits provided for in Section 8.1
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and his Annual Salary hereunder, less the amount of any disability benefits
received by Executive from any source paid for or reimbursed by the Company.
Thereafter, Executive's compensation shall be reduced to reflect the reduced
performance of Executive's services. However, so long as Executive is providing
services to the Company at a reduced level pursuant to an agreement with the
Company, Executive shall be entitled to receive the benefits provided for in
Section 8.1.
7.2 In the event Executive's disability is in question, and after written
request by the Company, Executive refuses to be examined by his regularly
attending physician or if the regularly attending physician fails to submit a
report within 30 days after the examination has been requested by the Company,
the determination of disability shall be made by the Company.
8. MISCELLANEOUS BENEFITS
8.1 MEDICAL INSURANCE. Executive and his family shall be entitled to
participate in any medical, dental, vision, life, long-term disability, other
insurance or employee benefit program instituted or maintained by the Company
for the benefit of its executive employees.
8.2 PAYMENT OF BENEFITS ON TERMINATION OF EMPLOYMENT WITHOUT CAUSE. If
Executive's employment with the Company is terminated without cause, the Company
agrees that Executive shall be entitled to continued compensation as if
Executive were still actively employed by the Company, for the remainder of the
term of this Agreement. If applicable law or the terms and conditions of such
plans do not permit Executive to be covered with respect to any benefit under
this Agreement as if Executive were still actively employed by the Company, the
Company agrees to pay Executive an amount equal to what the Company would have
paid to maintain such benefits if Executive were still employed by the Company
for the remainder of the term of this Agreement.
8.3 BUSINESS EXPENSES. Executive shall be reimbursed for all reasonable
expenses incurred by Executive in connection with Executive's attendance of
business meetings and promotion of Company business upon presentation by
Executive to the Company of an expense report and adequate records or other
documentation substantiating the expenditures, not less frequently than monthly.
Any such amounts
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disallowed as a business expense for federal or state income tax purposes shall
be deemed additional salary to Executive. The fact that the Company may not
reimburse Executive for an expense is not an indication that the Company
determined that the expense was not incurred on its behalf or in connection with
the Company's business.
8.4 AUTOMOBILE ALLOWANCE, Executive shall be entitled to an automobile
allowance of $1,500 per month to be used at his discretion for expenses relating
to lease payments for the automobile of Executive's choice, taxes, licensing
fees, insurance, and maintenance costs.
8.5 SERVICES FURNISHED, The Company shall furnish Executive with office
space, stenographic assistance and such other facilities and services as shall
be suitable to Executive's position and adequate for the performance of his
duties.
8.6 PLACE OF PERFORMANCE. In connection with Executive's employment by the
Company, Executive shall be based at the principal executive offices of the
Company, except for required travel on the Company's business to an extent
substantially consistent with present business travel obligations.
9. RESTRICTIVE COVENANTS
9.1 Executive acknowledges that (i) he has a major responsibility for the
operation, administration development and growth of the Company's business; (ii)
the Company's business is or may become national or international in scope;
(iii) his work for the Company will bring him into close contact with
confidential information of the Company and its clients; and (iv) the agreements
and covenants contained in this Section 9 are essential to protect the business
interests of the Company and that the Company would not enter this Agreement but
for such agreements and covenants. Accordingly, Executive covenants and agrees
as follows:
9.1.1 Except as otherwise provided for in this Agreement, during the
term of this Agreement and, if this Agreement is terminated for any reason other
than pursuant to Section 3.7 hereof, for two years following such date of
termination (the "Termination Period"), Executive shall not, directly or
indirectly, within any county in any state, province or other political
subdivision of the United States, or any
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other country in which the Company is conducting business as of the effective
date hereof, or as of the date of termination, compete with respect to any
services or products of the Company which are either offered or are being
developed by the Company as of either such date (the "Company's Business"); or,
without limiting the generality of the foregoing, be or become, or agree to be
or become, interested in or associated with, in any capacity (whether as a
partner, shareholder, owner, officer, director, employee, principal, agent,
creditor, trustee, consultant, co-venturer or otherwise), any individual,
corporation, Company, association, partnership, joint venture or other business
entity, which competes with Company's Business, provided, however, that
Executive may own, solely as an investment, not more than 1% of any class of
securities of any publicly held corporation traded on any national securities
exchange in the United States.
9.1.2 During the term of this Agreement and, if applicable, during the
Termination Period, Executive shall not, directly or indirectly, (i) solicit for
employment or provide services, or employ or engage the services of, any
employee of the Company who was employed by the Company at the time of
termination or any neutrals associated with the Company as of such time; (ii)
aid or agree to aid any competitor, client, or supplier of the Company in any
attempt to hire any person who shall have been employed by the Company within
the period preceding such requested aid; or (iii) induce or attempt to influence
any person or business entity who was a client or supplier of the Company during
any portion of said period to transact business with a competitor of the
Company.
9.2 Executive hereby expressly acknowledges, understands and agrees that
all documents, records, computer discs and programs, marketing and business
plans and studies, and business and financial information (collectively referred
to in this paragraph as "confidential information") relating to the Company's
business including, without limitation, the names and addresses of the Company's
clients and referral sources, all client records, files, and other client
information, all methods of marketing services, setting cases, training
programs, fee policies, and management and operating methods, whether they are
prepared in whole or in part by Executive or by any other person, are and shall
remain the exclusive property of the Company, and that all such trade secrets
are confidential, material and important to the business and financial success
of the Company, and that their disclosure or unauthorized use would seriously
and adversely affect the Company's business.
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9.3 Executive hereby expressly covenants and agrees that he will not either
directly or indirectly, do any of the following either during the term of his
employment by the Company, or at any time thereafter (or such shorter period
following termination a may be described below), except as is necessary to
perform his obligations in the course of his employment by the Company:
9.3.1 divulge, disclose or communicate to any person, Company, or
entity any of the Company's confidential information; or
9.3.2 for two years following termination of Executive's employment,
directly solicit or cooperate with others to directly solicit, any of the
clients, customers or referral sources of the Company, or neutrals associated
with the Company, for the purpose of, or in connection with, any business which
is the same or substantially similar to the Company's business; or
9.3.3 use himself, duplicate or copy any of such confidential
information; or
9.3.4 otherwise engage in unfair competition with the Company.
9.4 If Executive breaches, or threatens to commit a breach of the
Restrictive Covenants, the Company shall have the following rights and remedies,
each of which shall be enforceable, and each of which is in addition to, and not
in lieu of, any other rights and remedies available to the Company at law or in
equity:
9.4.1 Executive shall account for and pay over to the Company all
compensation, profits, and other benefits, after taxes, which inure to
Executive's benefit which are derived or received by Executive or any person or
business entity controlled by Executive resulting from any action or
transactions constituting a breach of any of the Restrictive Covenants.
9.4.2 Notwithstanding the provisions of subsection 9.4.1 above,
Executive acknowledges and agrees that in the event of a violation or
threatened violation of any of the provisions of Section 9, the Company, shall
have no adequate remedy at law and shall therefore be entitled to enforce
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each such provision by temporary or permanent injunctive or mandatory relief
obtained in any court of competent jurisdiction without the necessity of proving
damages, posting any bond or other security, and without prejudice to any other
rights and remedies which may be available at law or in equity.
9.5 If any of the Restrictive Covenants, or any part thereof, is held to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such determination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
9.6 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the courts
of any one or more of such jurisdictions shall hold such Restrictive Covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar, or in any
way affect the Company's right to the relief provided above in the courts of any
other jurisdictions within the geographical scope of such Restrictive Covenants,
as to breaches of such covenants in such other respective jurisdictions, the
above covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
10. PARTICIPATION IN STOCK AND OPTION EXECUTIVE COMPENSATION PLAN
The Company and Executive acknowledge that the Company previously agreed to
grant Executive incentive stock options to purchase 350,000 shares of Common
Stock of the Company at an exercise price of $.25 per share, all of which
options are fully vested. In addition, in connection with this Agreement,
Executive shall be granted incentive stock options to purchase 10,000 shares and
a non-statutory stock option to purchase 590,000 shares of Common Stock of the
Company at an exercise price of $1.21875 per share, 300,000 of which options
shall vest on December 31, 2000 (including 10,000 incentive stock options and
290,000 non-statutory stock options) and 300,000 of which shall vest on December
31, 2001, such
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vesting to be conditioned upon Executive being employed with the Company on such
vesting dates. In addition, if the closing price of the Company's Common Stock,
as quoted on the Nasdaq Bulletin Board (or other Nasdaq stock market market or
national stock exchange), is $7.00 or higher for 10 consecutive trading days,
all of Executive's stock options shall be immediately vested. All of Executive's
stock options referred to herein shall expire on December 31, 2009. The Company
agrees to file a registration statement covering all of the stock options
referred to herein on Form S-8 on or before April 30, 2000.
11. DISPUTE RESOLUTION
Any dispute or claim arising out of, in connection with, or in relation to
the interpretation, performance or breach of this Agreement shall be resolved by
a general reference conducted by a retired judge appointed pursuant to the
provisions of California Code of Civil Procedure Section 638(1), or any
amendment, addition or successor statute thereto. The parties intend this
general reference agreement to be specifically enforceable in accordance with
said section. If the parties cannot agree upon a specific retired judge, one
shall be appointed by the presiding judge in the county in which the matter is
to be heard, provided that the retired judge so appointed shall not be a current
or former employee or panelist of, or otherwise be associated with the Company.
12. ASSIGNMENT
This Agreement is a personal contract, and the rights, interests and
obligations of Executive hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. Executive shall not under any circumstances have
any option or right to require payment hereunder otherwise than in accordance
with the terms hereof. Except as otherwise expressly provided herein, Executive
shall not have any power of anticipation, alienation or assignment of payments
contemplated hereunder, and all rights and benefits of Executive shall be for
the sole personal benefit of Executive, and no other person shall acquire any
right, title or interest hereunder by reason of any sale, assignment, transfer,
claim or judgment or bankruptcy proceedings against Executive; provided,
however, that in the event of Executive's death, Executive's estate, legal
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representatives or beneficiaries (as the case may be) shall have the right to
receive all of the benefits that accrued to Executive pursuant to, and in
accordance with, the terms of this Agreement.
13. SUCCESSOR
This Agreement may be assigned by the Company to any successor interest to
its business. This Agreement shall bind and inure to the benefit of the
Company's successors and assigns as well.
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14. NOTICES
All notices, requests and demands hereunder shall be in writing and
delivered by hand, by mail, or by telegram, and shall be deemed given if by hand
delivery, upon such delivery, and if by mail, 48 hours after deposit in the
United States mail, first class, registered or certified mail, postage prepaid
and properly addressed to the party at the address set forth at the beginning of
this Agreement. Any party may change its address for purposes of this paragraph
by giving the other party written notice of the new address in the manner set
forth above.
15. INVALID PROVISIONS
Invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provision were
omitted.
16. AMENDMENT MODIFICATION OR REVOCATION
This Agreement may be amended, modified or revoked in whole or in part, but
only by a written instrument which specifically refers to this Agreement and
expressly states that it constitutes an amendment, modification or revocation
hereof, as the case may be, and only if such written instrument has been signed
by each of the parties to this Agreement.
17. HEADINGS
The headings in this Agreement are inserted for convenience only and are
not to be considered in construction of the provisions hereof.
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18. ENTIRE AGREEMENT
This Agreement contains the entire understanding among the parties and
supersedes any prior written or verbal agreements between them respecting the
subject matter hereof, including, without limitation, any prior verbal or
written employment agreement between Executive and the Company. Upon the
effectiveness hereof, any such prior verbal or written agreements shall
terminate.
No representations or warranties of any kind or nature relating to the
Company or its affiliates or their respective businesses, assets, liabilities,
operations, future plans or prospects have been made by or on behalf of the
Company to Executive; nor have any representations or warranties of any kind or
nature been made by Executive to the Company, except as expressly set forth in
this Agreement.
19. ATTORNEYS' FEES
If any legal action is necessary to enforce the terms and conditions of
this Agreement, the prevailing party in such action shall be entitled to recover
all costs of suit and reasonable attorneys' fees as determined by the
arbitrator.
20. FURTHER ASSURANCES
The parties shall execute such documents and take such other action as is
necessary or appropriate to effectuate the provisions of this Agreement.
21. CONTROLLING LAW
This Agreement shall be governed by the laws of the State of California.
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22. WAIVER
A waiver by either party of any of the terms and conditions hereof shall
not be construed as a general waiver by such party, and such party shall be free
to reinstate such part or clause, with or without notice to the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement on January 7,
2000 at Lake Forest, California.
THE COMPANY: EXECUTIVE:
AVIATION DISTRIBUTORS, INC.
By:
--------------------------------- -------------------------------------
Its Duly Authorized Officer XXXXXXX X. XXXX
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