EXHIBIT 10.2
EMPLOYMENT AND NONCOMPETITION AGREEMENT
AGREEMENT, dated as of the 16TH of SEPTEMBER , 1997, by and between
NORTHWINGS ACCESSORIES CORPORATION, a Florida corporation (the "EMPLOYER"), and
XXXXX XXXXXXX (the "EMPLOYEE").
WITNESSETH:
WHEREAS, the Employee desires to continue to be employed by the Employer,
and the Employer desires to continue to employ the Employee, upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Employee represents that he is not a party to any agreement
which would prohibit him from entering into this Agreement or his performing the
services required hereunder.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, receipt of which is hereby acknowledged, the Employer and the
Employee agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE
(a) TERM. The Employee's employment hereunder will commence on the date of
the closing of the Stock Purchase Agreement, dated as of July 25,1997, between
HEICO Corporation, Xxxxx Xxxxxxx and Xxxx Xxxxxx, from the Employee, and will
expire on October 31, 1999 (the "TERM"). Notwithstanding the foregoing, the
Employee's employment hereunder may be terminated prior to the expiration of the
Term as provided in SECTION 2.
(b) DUTIES AND RESPONSIBILITIES. The Employee shall serve as President of
the Employer. The Employee agrees to use his best efforts, entire productive
time, attention, and energies to the business of the Employer and shall assume
and competently perform such reasonable responsibilities and duties as may be
assigned to him from time to time by the Employer through its duly authorized
management personnel. To the extent that the Employer shall have any parent,
subsidiaries, affiliated corporations, partnerships, or joint ventures
(collectively "RELATED ENTITIES"), Employee shall perform such duties to promote
these entities and their respective interests to the same extent as the
interests of the Employer and without additional compensation. At all times, the
Employee agrees to abide by any employee handbook, policy, or practice that the
Employer has or hereafter adopts with respect to its employees generally.
(c) COMPENSATION. As full compensation for his services hereunder and in
consideration for the Employee's covenants contained in this Agreement, the
Employer shall pay the Employee a salary at the per annum rate of $300,000
payable in accordance with the customary payroll practices of the Employer.
(d) EXPENSES; FRINGE BENEFITS AND VACATION POLICY. The Employer agrees to
pay or reimburse the Employee for all reasonable vouchered business expenses
incurred during his employment which have been submitted in accordance with any
expense reimbursement policy or practice of the Employer as in effect from time
to time. The Employer will provide to the Employee a leased automobile of
comparable quality to the automobile currently under lease for the Employee and
such pension benefits, holidays, four (4) weeks of paid vacation per annum and
other employee benefits (including automobile insurance and health care
coverage) which the Employer provides to similarly situated employees, subject
to the provisions of the various benefit plans, programs, or policies in effect
from time to time. Unused vacation shall not accrue from one year until the
following year and shall not be paid in the form of cash in lieu of unused
vacation. Except for vacation time, the Employer reserves the right to change or
eliminate these benefits at any time.
The Employee shall also be entitled to an annual incentive bonus at
the discretion of the Board of Directors of Northwings Accessory Corp.
(e) LIFE INSURANCE. The Employee agrees that the Employer shall have the
right to obtain life insurance on the Employee's life, at the Employer's sole
expense and with the Employer as the sole beneficiary thereof, but no
representation is made by the Employee as to his insurability. The Employee
shall (i) cooperate fully with the Employer in obtaining such life insurance,
(ii) sign any necessary consents, applications and other related forms or
documents, and (iii) take any required medical examinations.
SECTION 2. TERMINATION OF EMPLOYMENT
(a) TERMINATION BY THE EMPLOYER. The Employer may terminate the employment
of the Employee at any time with or without Cause (as defined below) and with or
without notice. Following termination of employment of the Employee for cause,
the Employer shall have no further obligations under this Agreement, including
payment obligations. If the employment of the Employee is terminated by the
Employer without Cause, the Employee shall continue to be entitled to receive
the compensation payable to him pursuant to SECTION 1(C) but thereafter shall
not be entitled to any of the expense reimbursement or benefits referred to in
SECTION 1(D) except to the extent such right to reimbursement or benefits were
vested at the date of such termination. As used in this
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Agreement, "CAUSE" shall mean the following: (1) the Employee's failure or
refusal to perform his duties, as contemplated by this Agreement, in a
satisfactory manner; after notice and a reasonable opportunity to cure, (2)
dishonesty or other acts that adversely affect the Employer; (3) a violation of
the Employer's written policies or practices which justifies immediate
termination, as defined by the Employer; (4) arrest for or conviction of a
felony or of any crime involving moral turpitude, fraud, dishonesty or
misrepresentation; (5) the commission by the Employee of any act which could
reasonably be expected to injure the reputation, business, or business
relationships of the Employer or Related Entities; (6) the Employee's inability
to perform an essential function of his position, which inability continues for
90 consecutive days or for periods aggregating 90 days in any 180-day period; or
(7) any material breach by Employee of this Agreement or the Stock Purchase
Agreement.
(b) TERMINATION BY EMPLOYEE. The Employee agrees to provide the Employer
with at least twenty (20) business days' written notice of his intent to
terminate employment voluntarily ("TERMINATION NOTICE PERIOD"). Failure to
provide such notice terminates the Employee's entitlement to payment for
accrued, unused benefits, such as vacation. The Employer reserves the right to
terminate the Employee before the end of the Termination Notice Period provided
that the Employer pays the Employee the salary that he would have received from
the date of the last payroll payment to the end of the Termination Notice
Period. During the Termination Notice Period, the Employee agrees to make a good
faith effort to perform the duties described hereunder. If the Employee
terminates his employment with the Employer for any reason, the Employer's
obligations, including payment obligations, under this Agreement shall forthwith
cease except as provided in this subparagraph.
SECTION 3. NON-COMPETITION; STANDSTILL; PROTECTION OF CONFIDENTIAL
INFORMATION; ETC.
(a) RATIONALE FOR RESTRICTIONS. The Employee acknowledges that his services
hereunder are of a special, unique, extraordinary and intellectual character,
and his position with the Employer places him in a position of confidence and
trust with the customers, suppliers and employees of the Employer and/or Related
Entities. The Employee also acknowledges that the Employer and Related Entities
repairs, overhauls and services certain aircraft equipment (collectively
"PRODUCTS") throughout the world and that the Employer competes with many
companies, including, but not limited to,_____________________________________.
The Employee further acknowledges that the rendering of services under this
Agreement necessarily requires the disclosure to the Employee of Confidential
Information of the Employer and/or Related Entities. The Employee and the
Employer agree that both prior to and during the course of employment with the
Employer and Northwings, the Employee had, has, and will continue to develop a
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personal relationship with the Employer's customers, and a knowledge of these
customers' affairs and requirements which may constitute the Employer's primary
and only contact with such customers. The Employee acknowledges that the
Employer's relationships with its established clientele may therefore be placed
in the Employee's hands in confidence and trust. The Employee consequently
agrees that it is reasonable and necessary for the protection of the goodwill
and legitimate business interests of the Employer and the Related Entities that
the Employee make the covenants contained herein, that the covenants are a
material inducement for the Employer to employ the Employee and to enter into
this Agreement, and that the covenants are given as an integral part of and
incident to this Agreement.
(b) NON-COMPETITION IN RELATED BUSINESS. As used herein, the term
"RESTRICTIVE PERIOD" means the period commencing on the date of this Agreement
and ending two (2) years following the later of (i) the expiration of the Term
or (ii) the termination of the employment of the Employee with the Employer,
irrespective of the reason for such termination and even though such termination
occurs after the expiration of the Term. During the Restrictive Period, the
Employee agrees not to utilize his special knowledge of the business of the
Employer and his relationships with customers, suppliers and others to compete
with the Employer or any of the Related Entities or any of the Related Entities
in any business which is the same as or similar to the business (the "PROHIBITED
BUSINESS") conducted by the Employer or any of the Related Entities at any time
during the Restrictive Period. During the Restrictive Period, the Employee shall
not, directly or indirectly, assist in the creation or development of, engage or
have an interest, anywhere in the United States of America or any other
geographic area where the Employer or any Related Entity does business or in
which its Products are marketed, alone or in association with others, as
principal, officer, agent, employee, director, partner or stockholder (except as
an employee or consultant of the Employer or any of the Related Entities), or
through the investment of capital, lending of money or property, rendering of
services or advice or otherwise, in any business competitive with or similar to
the Prohibited Business. During the Restrictive Period, the Employee shall not,
nor shall he permit any of his employees, agents or others under his control to,
directly or indirectly, on behalf of the any entity or person, (i) call upon,
accept business from, or solicit the business of any person or entity which is,
or who had been at any time during the preceding two years, a customer of
Northwings, the Employer or any Related Entity otherwise divert or attempt to
divert any business from the Employer or any of the Related Entities; or (ii)
recruit or otherwise solicit or induce any person who was an employee of, or
otherwise engaged by, the Employer or any of the Related Entities at any time
during the Restrictive Period to terminate his or her employment or other
relationship with the Employer or any of the Related Entities, or hire any
person who has left the employ of the Employer or any of the Related Entities
during the Restrictive Period. The Employee shall not at any time, directly or
indirectly, use or purport to
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authorize any person to use any name, xxxx, logo, trade dress or other
identifying words or images which are the same as or similar to those used
currently, in the past, or during the Employee's employment by Northwings or the
Employer in connection with any Product or service, whether or not such use
would be in a Prohibited Business. The ownership or control of up to five
percent of the outstanding voting securities or securities of any class of a
company with a class of securities registered under the Securities Exchange Act
of 1934, as amended, shall not be deemed to be a violation of the provisions of
this SECTION 3(b).
(c) STANDSTILL. The Employee agrees that for a period commencing on the date
hereof and ending on the date which is ten years from the date hereof, he will
not (i) acquire, offer or agree to acquire, directly or indirectly, by purchase
or otherwise, control of the Employer or any of the Related Entities, (ii) make,
or in any way participate, directly or indirectly, as advisor or otherwise, in
any "solicitation" of "proxies" or consents to vote (as such terms are used in
the Proxy Rules of the United States Securities and Exchange Commission), or
seek to advise or influence any person or entity with respect to the voting of
any voting securities of the Employer or any of the Related Entities, in
opposition to any proposed actions of the Board of Directors of the Employer or
any of the Related Entities or in opposition to any nominees for Directors of
the Employer or any of the Related Entities which nominees have been nominated
by the Employer or any of the Related Entities, their management or their Board
of Directors, (iii) seek or assist any other party in seeking representation on
the Board of Directors of the Employer or any of the Related Entities through
the election to the Board of Directors of individuals(s) not nominated and
supported by the Employer or any of the Related Entities, their management or
their Board of Directors, (iv) pursue or publicly announce an interest in
pursuing an acquisition of control of the Employer or any of the Related
Entities or an alteration of the composition of the Employer's or any of the
Related Entities' Boards of Directors, or (v) advise or otherwise act, alone or
in concert with others, directly or indirectly, to seek to control or influence
the management, Board of Directors or policies of the Employer or any of the
Related Entities.
(d) DISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee acknowledges that
the Products and the inventions, formulas, software, trade secrets, technology,
compositions, know-how, methods and processes of manufacturing, assembling or
fabricating (collectively, the "INTANGIBLE PROPERTY") and all other confidential
or proprietary information with respect to the business and operations of the
Employer are valuable, special and unique assets of the Employer. The Employee
shall not, at any time during or after the Restrictive Period, disclose,
directly or indirectly, to any person or entity, or use or authorize or purport
to authorize any person or entity to use any confidential or proprietary
information with respect to the Employer or any of the Related Entities without
the prior written consent of the Employer, including without limitation,
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information as to the financial condition, results of operations, customers,
suppliers, Products, Products under development, Intangible Property, sources,
leads or methods of obtaining new products or business, pricing methods or
formulas, cost of supplies, marketing strategies or any other information
relating to the Employer or any of the Related Entities which could reasonably
be regarded as confidential, but not including information which is or shall
become generally available to the public other than as a result of disclosure by
the Employer or any of the Related Entities or any of their agents, affiliates
or representatives or a person to whom any of them has provided such
information.
(e) RIGHTS TO INTELLECTUAL PROPERTY. While employed by the Employer, the
Employee will disclose to the Employer any ideas, inventions, or business plans
("INTELLECTUAL PROPERTY") developed by him which relate directly or indirectly
to the business or a similar business of the Employer or any of the Related
Entities, including without limitation, any process, operation, product or
improvement which may be patentable or copyrightable. The Employee agrees that
the Intellectual Property is or will be the property of the Employer and that he
will, at the Employer's request and cost, do whatever is necessary to obtain the
rights thereto, by patent, copyright or otherwise, for the Employer. The
Employee further agrees that, whether or not he is in the employ of the
Employer, he will cooperate in good faith to the extent and in the manner
requested by the Employer in the prosecution or defense of any patent or
copyright claims or any litigation or other proceedings involving any
Intellectual Property. The Employer will pay for all expenses associated with
the Employee's compliance with this provision.
(f) ANTI-DISPARAGEMENT. The Employee covenants and agrees that, both during
and after the Restrictive Period, he shall not make any comments which could be
construed as negative concerning the Employer or any of the Related Entities to
any individual or entity, including but not limited to, clients, customers,
employees, or financial or credit institutions.
(g) REMEDIES FOR BREACH OF THE AGREEMENT. The restrictions set forth in
SECTIONS 3 (b), (c), (d), (e) AND (f) are considered by the parties to be
reasonable for the purposes of protecting the legitimate business interests of
the Employer and the Related Entities and the value of the business and goodwill
of the Employer and the Related Entities. The parties hereto acknowledge that
the Employer and the Related Entities would be irreparably harmed, and that
monetary damages would not provide an adequate remedy to the Employer and the
Related Entities, in the event the covenants contained in SECTIONS 3 (b), (c),
(d), (e) AND (f) were not complied with in accordance with their terms.
Accordingly, the Employee agrees that any breach or threatened breach by him of
any provision of SECTIONS 3 (b), (c), (d), (e) AND (f) shall entitle the
Employer and the Related Entities to injunctive and other equitable relief,
without the posting of any bond or
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security, to secure the enforcement of such provisions, in addition to any other
rights and remedies which may be available to the Employer and the Related
Entities, and that the Employer and the Related Entities shall be entitled to
receive from the Employee reimbursement for all attorneys' fees and expenses
incurred by the Employer and the Related Entities in enforcing such provisions.
In addition to its other rights and remedies, the Employer and the Related
Entities shall have the right to require the Employee to account for and pay
over to the Employer or the Related Entities, as the case may be, all
compensation, profits, money, accruals and other benefits derived or received,
directly or indirectly, by the Employee from the action constituting such
breach. If the Employee breaches the covenant set forth in SECTION 3(b), the
running of the noncompete period described therein shall be tolled with respect
to the Employer or any of the Related Entities for so long as such breach
continues. It is the desire and intent of the parties that the provisions of
SECTIONS 3 (b), (c), (d), (e) AND (f), be enforced to the fullest extent
permissible under the laws and public policies of each jurisdiction in which
enforcement is sought. If any provisions of SECTIONS 3 (b), (c), (d), (e) OR
(f), relating to the time period, scope of activities or geographic area of
restrictions are declared by a court of competent jurisdiction to exceed the
maximum permissible time period, scope of activities or geographic area, the
maximum time period, scope of activities or geographic area, as the case may be,
shall be reduced to the maximum which such court deems enforceable. If any
provisions of SECTIONS 3 (b), (c), (d), (e) OR (f) other than those described in
the preceding sentence are adjudicated to be invalid or unenforceable, the
invalid or unenforceable provisions shall be deemed amended (with respect only
to the jurisdiction in which such adjudication is made) in such manner as to
render them enforceable and to effectuate as nearly as possible the original
intentions and agreement of the parties.
(h) SURVIVAL. The provisions of this SECTION 3 shall survive the termination
of this Agreement or the Employee's employment irrespective of the reason for
such termination. The provisions of this SECTION 3 shall continue in full force
and effect after the expiration of the Term even if the Employee continues to be
employed by the Employer without renewing this Agreement.
SECTION 4. RETURN OF EMPLOYER PROPERTY ON TERMINATION
The Employee agrees to promptly return the Employer's property to the
Employer's Florida headquarters upon termination of his employment with the
Employer. The Employer reserves the right to take appropriate legal action
against the Employee in the event of a breach of this provision.
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SECTION 5. VERIFICATION OF COMPLIANCE
Upon termination of employment, the Employee shall, at the request of the
Employer, verify in writing and under oath, in the form attached hereto as
Exhibit A, his compliance with the provisions of this Agreement relating to
Intellectual Property and Confidential Information. This provision shall not
give rise to any independent claim by the Employee for severance pay or other
payments upon the Employee's termination.
SECTION 6. MISCELLANEOUS PROVISIONS
(a) NOTICES. Any notice, request, demand or other communication required or
permitted under this Agreement shall be in writing and shall be delivered
personally or sent by prepaid overnight courier for next business day delivery
to the parties at the addresses set forth below their names below (or at such
other addresses as shall be specified by the parties by like notice).
IF TO THE EMPLOYEE:
Xxxxx Xxxxxxx
IF TO THE EMPLOYER OR ANY OF THE RELATED ENTITIES:
c/o HEICO Corporation
000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: President
WITH A COPY TO:
Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Such notices, demands, claims and other communications shall be deemed given
when actually received or in the case of delivery by overnight service with
guaranteed next business day delivery, the next business day or the day
designated for delivery.
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(b) ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto relating to the subject matter hereof and merges all
prior discussions, negotiations and agreements, if any, between them, and
neither of the parties hereto shall be bound by any representations, warranties,
covenants, or other understandings relating to the subject matter hereof, other
than as expressly provided or referred to herein.
(c) ASSIGNMENT. This Agreement may not be assigned by the Employee without
the written consent of the Employer but shall be freely assignable by the
Employer in connection with any sale by the Employer of the Prohibited Business
or any substantial part thereof. Subject to the preceding sentence, this
Agreement shall be binding upon, and inure to, the benefit of the parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
(d) WAIVER AND AMENDMENT. Any representation, warranty, covenant, term or
condition of this Agreement which may legally be waived, may be waived, or the
time of performance thereof extended, at any time by the party hereto entitled
to the benefit thereof, and any term, condition or covenant hereof may be
amended by the parties hereto at any time. Any such waiver, extension or
amendment shall be evidenced by an instrument in writing executed by or on
behalf of each such party. No waiver by any party hereto, whether express or
implied, of its rights under any provision of this Agreement shall constitute a
waiver of such party's rights under such provisions at any other time or a
waiver of such party's rights under any other provision of this Agreement. No
failure by any party hereto to take any action against any breach of this
Agreement or default by another party shall constitute a waiver of the former
party's right to enforce any provision of this Agreement or to take action
against such breach or default or any subsequent breach or default by such other
party.
(e) NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto, the Related Parties and their respective heirs,
personal representatives, legal representatives, successors and permitted
assigns, any rights or remedies under or by reason of this Agreement.
(f) SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall be declared invalid, void or unenforceable,
the remainder of the provisions of this Agreement shall remain in full force and
effect, and such invalid, void or unenforceable provision shall be interpreted
as closely as possible to the manner in which it was written.
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(g) HEADINGS. Section headings herein are inserted for convenience of
reference only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) LITIGATION; PREVAILING PARTY. In the event of any litigation with regard
to this Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall pay upon demand, all
reasonable fees and expenses of counsel for the prevailing party in connection
with such litigation.
(j) GOVERNING LAW AND VENUE. This Agreement has been entered into and shall
be construed and enforced in accordance with the laws of the State of Florida
without reference to the choice of law principles thereof. This Agreement shall
be subject to the exclusive jurisdiction of the courts of the State of Florida
located in Dade or Broward Counties, Florida or the United States District Court
for the Southern District of Florida. The parties irrevocably waive, to the
fullest extent permitted by law, any objection which they may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement, or any judgment entered by any court in respect
hereof brought in Dade or Broward Counties, Florida, and further irrevocably
waive any claim that any suit, action or proceeding brought in Dade or Broward
Counties, Florida has been brought in an inconvenient forum.
(k) REMEDIES CUMULATIVE. No remedy made available by any of the provisions
of this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity.
(l) PARTICIPATION OF PARTIES; CONSTRUCTION. The parties hereto acknowledge
that this Agreement and all matters contemplated herein, have been negotiated
between the parties hereto and their respective legal counsel and that all such
parties have participated in the drafting and preparation of this Agreement from
the commencement of negotiations at all times through the execution hereof. This
Agreement shall be construed and interpreted without regard to any presumption
or other rule or interpretation against the party who may have had primary
responsibility for drafting this Agreement.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered this
Agreement as of the day and year first above written.
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XXXXXXXXXX XXXXXXXXXXX CORPORATION
By:/s/ XXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. & Gen. Counsel
/s/ XXXXX XXXXXXX
------------------------------------
XXXXX XXXXXXX
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