EMPLOYMENT AGREEMENT (Bruce Edwards)
(Xxxxx
Xxxxxxx)
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”) is made and entered into as of the 1st day of March, 2006 (the
“Effective Date”), by and between ELITE
FLIGHT SOLUTIONS, INC.,
a
Delaware corporation (“Employer”), and Xxxxx
Xxxxxxx,
an
individual residing in Ashburn, Virginia (“Employee”).
W
I T N E S S E T H:
WHEREAS,
Employer and Employee desire to enter into an agreement regarding Employee’s
employment with Employer pursuant to the terms and conditions set forth
herein;
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and intending to be legally bound hereby, the parties
covenant and agree as follows:
1. Employment.
Employer hereby employs Employee and Employee hereby accepts employment with
Employer, as Chief Executive Officer of
Employer, on the terms and condi-tions set forth in this Agreement.
2. Term
of Employment.
The
term of Employee’s employment hereunder (the “Term”) shall commence as of March
1, 2006 (the “Commencement Date”), and shall continue (subject to termination by
either Employer or Employee as hereinafter provided) for an initial term (the
“Initial Term”) of three (3) years expiring on February 28, 2009
(the
“Expiration Date”). At the expiration of the Initial Term, this Agreement shall
automatically terminate, and Employer shall have no further obligation to
Employee other than payment of any earned and unpaid Base Salary (as hereafter
defined) under Section 3(a) and any earned and unpaid Signing Bonus (as
hereafter defined) under Section 3(b), and Employee shall have no further
obligation to Employer except as set forth in Sections 6, 7, 8 and
9.
3. Compensation
and Other Benefits.
(a) As
compensation for all services rendered by Employee in perfor-xxxxx of Employee’s
duties or obligations under this Agreement, Employer shall pay Employee a
monthly Base Salary (the “Base Salary”) of Ten Thousand and No/100 Dollars
($10,000). Employee's Base Salary shall be payable in equal semi-monthly
installments or in the manner and on the timetable which Employer's payroll
is
customarily handled or at such intervals as Employer and Employee may hereafter
agree to from time to time.
(b) In
addition to receiving the Base Salary provided for in Section 3(a), Employee
shall, upon execution of this Agreement, earn a signing bonus (the “Signing
Bonus”) of 6,000,000 shares (the “Compensation Shares”) of the company’s
restricted stock. This bonus is intended to compensate the employee for the
shortfall in cash compensation that an executive of his experience would
otherwise receive. The Compensation Shares will be issued after the stock
reverse as approved by the board of directors on February 14th,
2006
and will be issued with a restricted legend and will remain restricted for
a
period of three (3) years unless otherwise approved by the board of directors.
The Board of Directors may from time to time authorize bonus payments to
employee based on his contributions to the performance of the Company or such
other criteria as the Board may establish, in addition to his regular salary
and
signing bonus.
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(c) Employee
shall be entitled to be reimbursed by Employer for all reasonable and necessary
expenses incurred by Employee in carrying out Employee’s duties under this
Agreement in accordance with Employer’s standard policies regarding such
reimbursements.
(d) Employee
shall be entitled during the Term, upon satisfaction of all eligibility
requirements, if any, to participate in all health, dental, disability, life
insurance and other benefit programs now or hereafter established by Employer
which cover substantially all other of Employer's employees and shall receive
such other benefits as may be approved from time to time by
Employer.
4. Duties.
(a) Employee
is employed to act as Chief Executive Officer of Employer or in such other
office or position as shall be assigned to Employee from time to time by
Employer, and to perform such duties as are commensurate with Employee’s
position with Employer. Specifically, Employee is required pursuant to this
Agreement to utilize his best efforts to originate equipment leases, establish
and maintain relationships with financing institutions, and to work in a manner
consistent with the highest industry practice.
(b) Employee
agrees that during the period of employment, Employee shall devote his best
efforts to Employee’s duties as an employee of Employer and Employee shall use
Employee’s best efforts to perform the duties of Employee’s position in an
efficient and competent manner and shall use Employee’s best efforts to promote
the interests of Employer.
5. Termination
of Employment.
Employee’s employment under this Agreement shall terminate upon the earliest to
occur of any of the following events (the actual date of such termination being
referred to herein as the “Termination Date”):
(a) The
expiration of the Agreement in accordance with Section 2.
(b) The
death
of Employee.
(c) The
failure of Employee to be able to perform Employee’s duties hereunder for a
period of not less than ninety (90) days by reason of disability. For purposes
of this Agreement, Employee shall be deemed to have become disabled when
Employer, upon the advice of a qualified physician, shall have determined that
Employee has become physically or mentally incapable (excluding infrequent
and
temporary absences due to ordinary illness) of performing Employee’s duties
under this Agreement. Before making any termination decision pursuant to this
Section 5(c)(6), Employer shall determine whether there is any reasonable
accommodation (within the meaning of the Americans with Disabilities Act) which
would enable Employee to perform the essential functions of Employee’s position
under this Agreement despite the existence of any such disability. If such
a
reasonable accommodation is possible, Employer shall make that accommodation
and
shall not terminate Employee’s employment hereunder based on such
disability.
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(d) The
termination of Employee’s employment by Employer under this Agreement for
“Cause” (in which case prior notice from Employer shall not be required except
as set forth in subparagraph (4) below), upon the occurrence of any of the
following events:
(1)
any
embezzlement or wrongful diversion of funds of Employer or any affiliate of
Employer by Employee;
(2) gross
malfeasance by Employee in the conduct of Employee’s duties;
(3) breach
of this Agree-ment and the failure to cure such breach within thirty (30) days
after notice thereof has been delivered to Employee;
(4)
gross
neglect by Employee in carrying out Employee’s duties; or
(5)
the
charging of Employee with a felony or a crime involving moral
turpitude.
If
Employee’s employment is terminated for any of the reasons specified in Section
5(b), (c) or (d), or Employee terminates this Agreement for any reason prior
to
the expiration of the then-existing Term, Employer shall no longer be obligated
to make the payments specified under Section 3 or to pay to Employee any other
compensation or benefits whatsoever. Notwithstanding the foregoing, if for
any
reason Employee’s employment is terminated under paragraph 5(d) hereunder, any
compensation payable under Sections 3(a), 3(b) or 3(c) which shall have been
earned through the date of termination but not yet paid shall be paid by
Employer to Employee or Employee’s estate, as the case may be, and employee
shall be paid three months of base salary as of date of termination. If the
employee voluntarily terminates his employment during the term of this
agreement, he will forfeit the Signing Bonus payable under Section 3(b) unless
otherwise approved by the Board of Directors.
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6. Inventions
and Creations Belong to Employer.
(a) Any
and
all customer lists, inventions, discoveries, improvements or creations
(collectively, “Creations”) which Employee has conceived or made or may conceive
or make during the period of employment in any way, directly or indirectly,
connected with Employer’s business shall be the sole and exclusive property of
Employer. Employee agrees that all copyrightable works created by Employee
or
under Employer’s direction in connection with Employer’s business are “works
made for hire” and shall be the sole and complete property of Employer and those
any and all copyrights to such works shall belong to Employer. To the extent
any
of the works described in the preceding sentence are not deemed to be “works
made for hire,” Employee hereby assigns all proprietary rights, including
copyright, in these works to Employer without further compensation.
(b) Employee
further agrees to (i) disclose promptly to Employer all such Creations which
Employee has made or may make solely, jointly or commonly with others during
the
period of employment to the extent connected with Employer’s business, (ii)
assign all such Creations to Employer, and (iii) execute and sign any and all
applications, assignments or other instruments which Employer may deem necessary
in order to enable Employer, at Employer’s expense, to apply for, prosecute and
obtain copyrights, patents or other proprietary rights in the United States
and
foreign countries or in order to transfer to Employer all right, title and
interest in said Creations.
7. Confidentiality;
Ownership of Information.
Immediately upon inception of employment and contemporaneously with the
execution of this Agreement, Employee shall have access to and become familiar
with various trade secrets and proprietary and confidential information of
Employer consisting of, but not limited to, records and other confidential
information relating to equipment leasing (collectively, the “Confidential
Information”), which are owned by Employer and regularly used in the business of
Employer. Employee acknowledges that Employee will be provided with access
to
the Confidential Information in exchange for Employee’s covenant not to compete
and his promise herein not to disclose the Confidential Information. Employee
further acknowledges and agrees that the Confidential Information is secret
and
not generally known and is valuable, special, and unique to Employer, the
disclosure of which could cause substantial injury and loss of profits and
goodwill to Employer. Employee shall not hereafter use in any way or disclose,
in whole or in part, any of the Confidential Information, directly or
indirectly, either while employed by Employer or at any time thereafter, except
as required or consented to in writing by Employer. All files, records,
documents, information, data and similar items relating to the business of
Employer, whether prepared by Employee or otherwise coming into Employee’s
possession, shall remain the exclusive property of Employer and shall not be
removed from the premises of Employer under any circumstances without the prior
written consent of Employer (except in the ordinary course of business during
Employee’s employment with Employer), and in any event shall be promptly
delivered to Employer upon termination of Employee’s employment with
Employer.
8. Non-Solicitation
of Employees.
During
the Initial Term and any Renewal Term and for a period of six (6) months after
the date of termination of employment for any reason, Employee will not in
any
way, directly or indirectly (i) induce or attempt to induce any employee of
Employer to quit employment with Employer; (ii) otherwise interfere with or
disrupt Employer’s relationship with its employees; (iii) solicit, entice or
hire away any employee of Employer; or (iv) hire or engage any employee of
Employer or any former employee of Employer whose employment with Employer
ceased less than one year before the date of such hiring or engagement. Employee
acknowledges that any attempt on the part of Employee to induce others to leave
Employer’s employ, or any effort by Employee to interfere with Employer’s
relationship with its other employees would be harmful and damaging to Employer.
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9. Noncompete;
Working for Competitor.
Employee acknowledges and agrees that the proprietary information Employee
acquires regarding Employer will enable Employee to injure Employer if Employee
should compete with Employer. Therefore, Employee hereby agrees that Employee
shall not, during Employee’s employment with Employer and, in the event of
termination of this Agreement by Employer pursuant to Section 5(d) or by
Employee for any reason, for a period of six (6) months after such termination
or cessation of Employee’s employment with Employer, directly or indirectly, as
a director, officer, agent, employee, consultant, or independent contractor
or
in any other capacity, invest (other than investments in publicly owned
companies which constitute not more than 1% of the voting securities of any
such
company) or engage in, or provide employment, consulting, or other services
to,
or serve as an officer, director, or employee of, or consultant to, any person
engaged in the current business of the Employer.
10. Employee’s
Acknowledgement.
It is
the express intention of Employee and Employer to comply with Delaware law
in
effect as of the date of execution hereof. Employee stipulates that the
provisions of this Agreement are not oppressive or overly burdensome to Employee
and will not prevent Employee from earning an income following termination
of
this Agreement. Employee warrants and represents that:
a. Employee
is familiar with non-solicitation and non-compete covenants;
b. Employee
has discussed or acknowledges the opportunity to discuss the provisions of
the
non-solicitation and non-compete covenants contained herein with Employee’s
attorney and has concluded that such provisions (including, without limitation,
the right to equitable relief and the length of time provided for herein) are
fair, reasonable and just under the circumstances;
c. Employee
is fully aware of the obligations, limitations and liabilities included in
the
non-solicitation and non-compete covenants contained in this
Agreement;
d. The
scope
of activities covered hereby is substantially similar to those activities to
be
performed by Employee under this Agreement;
e. The
non-solicitation period and the non-compete period are reasonable restrictions,
giving consideration to the following factors: (1) Employee and Employer
reasonably anticipate that this Agreement, although terminable under certain
provisions, will continue in effect for sufficient duration to allow Employee
to
attain superior bargaining strength and an ability for unfair competition with
respect to the customers covered hereby; and (2) the duration of the
non-solicitation and non-compete periods is reasonably necessary to allow
Employer to restore its position of equivalent bargaining strength and fair
competition with respect to those customers covered hereby; and
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f. The
limitations contained in this Agreement with respect to geographic area,
duration and scope of activity are reasonable; however, if any court shall
determine that the geographic area, duration or scope of activity of any
restriction contained in this Agreement is unenforceable, it is the intention
of
the parties that such restrictive covenants set forth herein shall not thereby
be terminated, but shall be deemed amended to the extent required to render
such
covenants valid and enforceable.
11. Remedies;
Injunction.
In the
event of a breach or threatened breach by Employee of any of the provisions
of
this Agreement, Employee agrees that Employer, in addition to and not in
limitation of any other rights, remedies or damages available to Employer at
law
or in equity, shall be entitled to a permanent injunction without the necessity
of proving actual monetary loss in order to prevent or restrain any such breach
by Employee or by Employee’s partners, agents, representatives, servants,
employees and/or any and all persons directly or indirectly acting for or with
Employee. It is expressly understood between the parties that this injunctive
or
other equitable relief shall not be Employer’s exclusive remedy for any breach
of this Agreement, and Employer shall be entitled to seek any other relief
or
remedy which it may have by contract, statute, law or otherwise for any breach
hereof.
12. Notices.
Any
notice, demand or request which may be permitted, required or desired to be
given in connection therewith shall be given in writing and directed to Employer
and Employee as follows:
| If to Employer, at: | 000 Xxxxx Xxx | |
| Xxxxxxx, XX 00000 | ||
| or, if to Employee, at: | 42544 Xxxxx Xxxx Xxxxxxx, Xxx. 000 | |
| Xxxxxxx, XX 00000-0000 |
Notices
shall be deemed properly delivered and received when and if either: (i)
personally delivered; (ii) delivered by nationally-recognized overnight courier;
(iii) when deposited in the U.S. Mail, by registered or certified mail, return
receipt requested, postage prepaid; or (iv) sent via facsimile transmission
with
confirmation mailed by regular U.S. mail. Any party may change its notice
address for purposes hereof to any address within the continental United States
by giving written notice of such change to the other parties hereto at least
fifteen (15) days prior to the intended effective date of such
change.
13. Severability.
If any
provision of this Agreement is rendered or declared illegal or unenforceable
by
reason of any existing or subsequently enacted legislation or by decree of
a
court of last resort, Employer and Employee shall promptly meet and negotiate
substitute provisions for those rendered or declared illegal or unenforceable,
but all the remaining provisions of this Agreement shall remain in full force
and effect.
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14. Assignment.
This
Agreement may not be assigned by any party without the prior written consent
of
the other parties, except for an assignment by Employer to a successor entity
in
a transaction validly approved by the managing members of Employer.
15. Binding
Agreement.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective legal representatives, heirs, successors and
permitted assigns.
16. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware.
17. Attorneys
Fees.
In the
event of any dispute between the parties regarding this Agreement, the
prevailing party shall be entitled to be reimbursed for such prevailing party’s
attorney’s fees and costs of court (or cost of arbitration, as applicable) by
the non-prevailing party.
18. Agreement
Read, Understood and Fair.
Employee has carefully read and considered all provisions of this Agreement
and
agrees that all of the restrictions set forth are fair and reasonable and are
reasonably required for the protection of the interests of
Employer.
19. Entire
Agreement; Amendments.
This
Agreement constitutes the entire agreement and understanding between the parties
hereto relating to the subject matter of this Agreement and supersedes any
prior
agreement and understanding relating to the subject matter of this Agreement.
This Agreement may be modified or amended only by a written instrument executed
by the parties hereto.
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