EMPLOYMENT AGREEMENT
LMI AEROSPACE, INC., a Missouri corporation (the "Corporation"), and
XXXXXXX X. XXXXXX ("Employee") hereby agree as follows:
1. Employment. The Corporation hereby employs Employee, and Employee
accepts employment from the Corporation, upon the terms and conditions
hereinafter set forth. Any and all employment agreements heretofore entered into
between the Corporation and Employee are hereby terminated and cancelled, and
each of the parties hereto mutually releases and discharges the other from any
and all obligations and liabilities heretofore or now existing under or by
virtue of any such employment agreements, it being the intention of the parties
hereto that this Agreement, effective immediately, shall supersede and be in
lieu of any and all prior employment agreements between them.
2. Term of Employment. The initial term of Employee's employment under
this Agreement shall commence on January 1, 2000 and shall terminate on
December 31, 2001; provided, however, that this Agreement shall be automatically
extended for additional terms of one year each unless not later than October 31
of any year beginning in 2001, either party has given written notice to the
other party of its or his intention not to extend the term of this Agreement;
and provided, further, that the term of employment may be terminated upon the
earlier occurrence of any of the following events:
(a) Upon the termination of the business or corporate
existence of the Corporation;
(b) Upon the death of the Employee;
(c) At the Corporation's option, if Employee shall suffer a
permanent disability; (For the purposes of this Agreement, "permanent
disability" means any physical or mental impairment that renders the
Employee unable for a period of six (6) months or more to perform the
essential job functions of his position, even with reasonable
accommodation, as determined by a physician selected by the
Corporation. The Employee acknowledges and agrees that he shall
voluntarily submit to a medical or psychological examination for the
purpose of determining his continued fitness to perform the essential
functions of his position whenever requested to do so by the
Corporation. If the Corporation elects to terminate the employment
relationship on this basis, the Corporation shall notify the Employee
or his representative in writing and the termination shall become
effective on the date that such notification is given.) or
(d) At the Corporation's option, upon ten (10) calendar days'
written notice to Employee, in the event of any breach or default by
Employee of any of the terms of this Agreement or of any of Employee's
duties or obligations hereunder, or in the event the Corporation
determines that Employee is not performing the duties required of him
hereunder to the satisfaction of the Corporation. In lieu of providing
ten (10) calendar days' advance written notice, the Corporation, at its
sole option, may terminate the Employee's services immediately and pay
him an amount that is equivalent to ten (10) calendar days of his
salary, less any deductions required by law;
(e) At the Corporation's option, without any advance notice,
in the event that the Employee engages in conduct which, in the opinion
of the Corporation, (1) constitutes dishonesty of any kind (including,
but not limited to, any misrepresentation of facts or falsification of
records) in Employee's relations, interactions or dealings with the
Corporation or its customers; (2) constitutes a felony; (3) potentially
may or will expose the Corporation to public disrepute or disgrace, or
potentially may or will cause harm to the customer relations,
operations or business prospects of the Corporation; (4) constitutes
harassment or discrimination towards any person associated with the
Corporation, whether an employee, agent or customer, based upon that
person's race, color, national origin, sex, age, disability, religion,
or other protected status; (5) reflects disruptive or disorderly
conduct, including but not limited to, acts of violence, fighting,
intimidation or threats of violence against any person associated with
the Corporation, whether an employee, agent or customer, or possessing
a weapon while on the Corporation's premises or while acting on behalf
of the Corporation; (6) is indicative of abusive or illegal drug use
while on the Corporation's premises or while acting on the
Corporation's behalf; or (7) constitutes a willful violation of any
governmental rules or regulations.
(f) At the Employee's option, after providing the Corporation
with at least thirty (30) calendar days advance written notice of his
intention to terminate the employment relationship.
Upon termination of employment for any reason, Employee shall be entitled to
receive only the Base Salary (as that term is hereinafter defined) accrued but
unpaid as of the date of termination and shall not be entitled to additional
compensation except as expressly provided in this Agreement.
3. Compensation.
(A) During the term of this Agreement the Corporation shall
compensate Employee for Employee's services rendered hereunder by paying to
Employee an annual salary (the "Base Salary") of One Hundred Thirty Thousand
Dollars ($130,000.00), less any authorized or required payroll deductions.
Payment of this salary will be made in accordance with the payroll policies of
the Corporation in effect from time to time.
(B) With respect to each complete fiscal year of the
Corporation during which (i) the Employee is employed under the terms of this
Agreement as of the last day of such fiscal year, and (ii) the Corporation's
"Annual Net Income" (as that term is hereinafter defined) is more than Two and
One-Half Million Dollars ($2,500,000.00), the Corporation shall pay to Employee,
in addition to the Base Salary, an annual "Performance Bonus". The amount of the
annual Performance Bonus (if any) shall be equal to:
(1) one percent (1.0%) of the Corporation's Annual Net Income that
is between Two and One-Half Million Dollars ($2,500,000.00)
and Four Million, Nine Hundred Ninety-Nine Thousand, Nine
Hundred Ninety-Nine Dollars and Ninety-Nine Cents
($4,999,999.99); plus
(2) one and two-tenths percent (1.2%) of the Corporation's Annual
Net Income that is between Five Million Dollars
($5,000,000.00) and Seven Million, Four Hundred Ninety-Nine
Thousand, Nine Hundred Ninety-Nine Dollars and Ninety-Nine
Cents ($7,499,999.99); plus
(3) six-tenths of one percent (0.6%) of the Corporation's Net
Income that is between Seven and One-Half Million Dollars
($7,500,000.00) and Ten Million Dollars ($10,000,000.00),
inclusive.
In the event the Corporation's Annual Net Income for any given fiscal year is
less than Two and One-Half Million Dollars ($2,500,000.00), the Employee shall
not be entitled to a Performance Bonus with respect to such fiscal year.
Notwithstanding anything contained herein to the contrary, in the event the sum
of the Employee's Performance Bonus with respect to a fiscal year plus the
Employee's benefit under all performance/production incentive programs of the
Corporation in which the Employee is entitled to a bonus ("Incentive Benefit")
for such fiscal year exceeds Seventy Thousand Dollars ($70,000.00), the amount
of the Employee's Performance Bonus for such year shall be reduced so that the
sum of the Performance Bonus and the Incentive Benefit equals Seventy Thousand
Dollars ($70,000.00).
For purposes of the calculation of the Performance Bonus, the Corporation's
"Annual Net Income" means the consolidated net profit of the Corporation and its
subsidiaries, for a given fiscal year, as determined by the firm of independent
certified public accountants providing auditing services to the Corporation,
using generally accepted accounting principles consistently applied, and
calculated without regard to (a) any bonus paid to the Corporation's Chairman of
the Board and any formula bonuses paid pursuant to employment contracts, and (b)
federal and state income tax. The Corporation shall pay to Employee any
Performance Bonus due the Employee hereunder not later than fifteen (15) days
after the receipt by the Corporation of its annual audited financial statements,
which the Corporation expects to receive within ninety (90) days after the end
of each fiscal year of the Corporation.
(C) In addition to the Base salary and Performance Bonus (if
any), Employee shall be entitled to receive such bonus compensation as the Board
of Directors of the Corporation may authorize from time to time.
4. Duties of Employee.
(A) Employee shall serve as General Manager of the
Corporation's plant located in Auburn, Washington or in such other positions as
may be determined by the Board of Directors of the Corporation, and Employee
shall perform such duties on behalf of the Corporation and its subsidiaries by
such means, at such locations, and in such manner as may be specified from time
to time by the officers or Board of Directors of the Corporation.
(B) Employee agrees to abide by and conform to all rules
established by the Corporation applicable to its employees.
(C) Employee acknowledges that he is being employed as a
full-time employee, and Employee agrees to devote so much of Employee's entire
time, attention and energies to the business of the Corporation as is necessary
for the successful operation of the Corporation and shall endeavor at all times
to improve the business of the Corporation. Employee shall not accept any
business commitments other than with the Corporation without the advance written
consent of the Corporation's President.
5. Expenses. During the period of Employee's employment, except as
otherwise specifically provided in this Agreement, the Corporation will pay
directly, or reimburse Employee for, all items of reasonable and necessary
business expenses approved in advance by the Corporation if such expenses are
incurred by Employee in the interest of the business of the Corporation. The
Corporation shall also reimburse Employee for automobile expenses incurred by
Employee in the performance of Employee's duties hereunder. The amount of such
reimbursement shall be in accordance with the automobile expense reimbursement
policy adopted (and as it may be modified from time to time) by the
Corporation's Board of Directors. All such expenses paid by Employee will be
reimbursed by the Corporation upon presentation by Employee, from time to time
(but not less than quarterly), of an itemized account of such expenditures in
accordance with the Corporation's policy for verifying such expenditures.
6. Fringe Benefits.
(A) Employee shall be entitled to participate in any health,
accident and life insurance program and other benefits which have been or may be
established by the Corporation for salaried employees of the Corporation.
(B) Employee shall be entitled to an annual vacation without
loss of compensation for such period as may be determined by the Board of
Directors of the Corporation.
(C) The Corporation shall furnish to the Employee during the
term of his employment an automobile selected by the Corporation to aid the
Employee in the performance of his duties.
7. Covenants of Employee.
(A) During the term of Employee's employment with the
Corporation and for all time thereafter Employee covenants and agrees that
Employee will not in any manner directly or indirectly, except as required in
Employee's duties to the Corporation, disclose or divulge to any person, entity,
firm or company whatsoever, or use for Employee's own benefit or the benefit of
any other person, entity, firm or company, directly or indirectly, any
knowledge, devices, information, techniques, customer lists, business plans or
other data belonging to the Corporation or developed by Employee on behalf of
the Corporation during his employment with the Corporation, without regard to
whether all of the foregoing matters will be deemed confidential, material or
important, the parties hereto stipulating, as between them, that the same are
important, material, confidential and the property of the Corporation, that
disclosure of the same to or use of the same by third parties would greatly
affect the effective and successful conduct of the business of the Corporation
and the goodwill of the Corporation, and that any breach of the terms of this
subparagraph (A) shall be a material breach of this Agreement.
(B) During the term of Employee's employment with the
Corporation and for a period of two (2) years (the "Covenant Term") after
cessation for whatever reason of such employment (except as hereinafter provided
in subparagraph (C) of this paragraph 7), Employee covenants and agrees that
Employee will not in any manner directly or indirectly:
(i) solicit, divert, take away or interfere with any
of the customers (or their respective affiliates or successors) of the
Corporation;
(ii) engage directly or indirectly, either personally
or as an employee, partner, associate partner, officer, manager, agent,
advisor, consultant or otherwise, or by means of any corporate or other
entity or device, in any business which is competitive with the
business of the Corporation. For purposes of this covenant a business
will be deemed competitive if it is conducted in whole or in part
within any geographic area wherein the Corporation is engaged in
marketing its products, and if it involves the manufacture of component
parts for the aerospace industry or any other business which is in any
manner competitive, as of the date of cessation of Employee's
employment, with any business then being conducted by the Corporation
or as to which the Corporation has then formulated definitive plans to
enter;
(iii) induce any salesman, distributor, supplier,
manufacturer, representative, agent, jobber or other person transacting
business with the Corporation to terminate their relationship with the
Corporation, or to represent, distribute or sell products in
competition with products of the Corporation; or
(iv) induce or cause any employee of the Corporation
to leave the employ of the Corporation.
(C) The parties agree that the Covenant Term provided for in
the preceding subparagraph (B) shall be:
(i) reduced to six (6) months in the event all of the
operating assets or all of the common stock of the Corporation is sold
to any entity or individuals unaffiliated with the Corporation, its
successors or assigns; or
(ii) eliminated if the business currently operated by
the Corporation is terminated and the assets of the Corporation are
liquidated.
(D) All the covenants of Employee contained in this paragraph
7 shall be construed as agreements independent of any other provision of this
Agreement, and the existence of any claim or cause of action against the
Corporation, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Corporation of these covenants.
(E) It is the intention of the parties to restrict the
activities of Employee under this paragraph 7 only to the extent necessary for
the protection of legitimate business interests of the Corporation, and the
parties specifically covenant and agree that should any of the provisions set
forth therein, under any set of circumstances not now foreseen by the parties,
be deemed too broad for such purpose, said provisions will nevertheless be valid
and enforceable to the extent necessary for such protection.
8. Documents. Upon cessation of Employee's employment with the
Corporation, for whatever reason, all documents, records (including without
limitation, customer records), notebooks, invoices, statements or
correspondence, including copies thereof, relating to the business of the
Corporation then in Employee's possession, whether prepared by Employee or
others, will be delivered to and left with the Corporation, and Employee agrees
not to retain copies of the foregoing documents without the written consent of
the Corporation.
9. Remedies. In the event of the breach by Employee of any of the terms
of this Agreement, notwithstanding anything to the contrary contained in this
Agreement, the Corporation may terminate the employment of Employee in
accordance with the provisions of paragraph 2 of this Agreement. It is further
agreed that any breach or evasion of any of the terms of this Agreement by
Employee will result in immediate and irreparable injury to the Corporation and
will authorize recourse to injunction and/or specific performance as well as to
other legal or equitable remedies to which the Corporation may be entitled. In
addition to any other remedies that it may have in law or equity, the
Corporation also may require an accounting and repayment of all profits,
compensation, remuneration or other benefits realized, directly or indirectly,
as a result of such breaches by the Employee or by a competitor's business
controlled, directly or indirectly, by the Employee. No remedy conferred by any
of the specific provisions of this Agreement is intended to be exclusive of any
other remedy and each and every remedy given hereunder or now or hereafter
existing at law or in equity by statute or otherwise. The election of any one or
more remedies by the Corporation shall not constitute a waiver of the right to
pursue other available remedies. Employee expressly agrees to pay all reasonable
costs and attorneys' fees incurred by the Corporation in order to enforce the
Employee's obligations under this Agreement, regardless of whether litigation is
commenced or prosecuted to a judgment.
10. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by any court
of competent jurisdiction, this Agreement, subject to subparagraph 7(E) hereof,
shall continue in full force and effect and shall be interpreted as if such
invalid agreements or covenants were not contained herein.
11. Waiver or Modification. No waiver or modification of this Agreement
or of any covenant, condition or limitation herein shall be valid unless in
writing and duly executed by the party to be charged therewith, and no evidence
of any waiver or modification shall be offered or received in evidence in any
proceeding, arbitration or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this Paragraph
may not be waived except as herein set forth. Failure of the Corporation to
exercise or otherwise act with respect to any of its rights hereunder in the
event of a breach of any of the terms or conditions hereof by Employee shall not
be construed as a waiver of such breach nor prevent the Corporation from
thereafter enforcing strict compliance with any and all of the terms and
conditions hereof.
12. Assignability. The services to be performed by Employee hereunder
are personal in nature and, therefore, Employee shall not assign Employee's
rights or delegate Employee's obligations under this Agreement, and any
attempted or purported assignment or delegation not herein permitted shall be
null and void.
13. Successors. Subject to the provisions of paragraph 12, this
Agreement shall be binding upon and shall inure to the benefit of the
Corporation and Employee and their respective heirs, executors, administrators,
legal administrators, successors and assigns.
14. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given if
delivered personally or mailed by certified or registered mail, return receipt
requested, if to the Corporation, to:
Xxxxxx X. Xxxx, President
LMI AEROSPACE, INC.
X.X. Xxx 000
Xx. Xxxxxxx, XX 00000-0000
and, if to Employee, to:
Xx. Xxxxxxx Xxxxxx
00000 000xx Xxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
or to such other address as may be specified by either of the parties in the
manner provided under this paragraph 14.
15. Construction. This Agreement shall be deemed for all purposes to
have been made in the State of Missouri and shall be governed by and construed
in accordance with the laws of the State of Missouri, notwithstanding either the
place of execution hereof, nor the performance of any acts in connection
herewith or hereunder in any other jurisdiction.
16. Venue. The parties hereto agree that any suit filed arising out of
or in connection with this Agreement shall be brought only in the Federal Court
for the Eastern District of Missouri, unless said Court shall lack jurisdiction,
in which case such action shall be brought only in the Circuit Court in the
County of St. Louis, Missouri.
17. Disclosure of Existence of Agreement. To preserve the Corporation's
rights under this Agreement, the Corporation may advise any third party of the
existence of this Agreement and its terms, and the Employee specifically
releases and agrees to indemnify and hold the Corporation harmless from any
liability for doing so.
18. Opportunity to Review. Employee hereby represents and warrants that
he has had an opportunity to review this Agreement and ask the Corporation
questions about the Agreement, and understands the meaning and effect of each
paragraph of this Agreement.
The parties have executed this Agreement as of January ___, 2000.
LMI AEROSPACE, INC.
("Corporation")
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx, President
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
("Employee")
