AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of December 2, 1996, by and between Tri-Star
Aerospace Co., a Delaware corporation (the "Company"), and Xxxxxxx X. Small
(the "Executive").
WHEREAS, the Executive was the Chief Executive Officer and
controlling shareholder of Tri-Star Aerospace, Inc. ("Tri-Star") prior to the
acquisition of Tri-Star by the Company (the "Acquisition");
WHEREAS, the Company desires to retain the Executive to provide
certain management and consulting services as described herein, and the
Executive desires to provide his services to the Company in such capacity, on
the terms and conditions set forth herein;
WHEREAS, the Executive performed advisory services to the Company
in connection with coordinating, structuring and consummating the Acquisition
(the "Advisory Services") and the Company and the Executive have agreed the
Executive shall receive compensation for such services as provided herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties set forth below, the parties agree as
follows:
1. EMPLOYMENT. Subject to all of the terms and conditions set
forth in this Agreement, the Company hereby employs the Executive to perform
the duties set forth in Section 3 hereof, and the Executive hereby accepts
such employment.
2. TERM. The term of employment shall commence as of September
19, 1996 (the "Commencement Date") and shall end on the second anniversary of
the Commencement Date, unless sooner terminated as hereinafter provided (the
"Term").
3. DUTIES. During the Term, the Executive shall provide
management and consulting services to the Company and shall perform such other
duties and functions as reasonably directed by the Board of Directors of the
Company.
4. SALARY. During the Term, the Executive shall receive an annual
salary of $225,000, payable in accordance with the customary payroll
practices of the Company, of which $60,000 shall constitute payment for the
Executive's management and consulting services with respect to the Tri-Star
Inventory (the "Inventory Services") and $165,000 shall constitute payment
for the Advisory Services.
5. EXPENSES. During the Term, the Executive shall be entitled to
receive reimbursement for all reasonable travel and business expenses
incurred by him (in accordance with the policies and procedures of the
Company) in performing services hereunder, provided that the Executive
promptly and properly accounts therefor in accordance with the Company's
expense policy.
6. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. If, prior to the expiration of the
Term, the Company terminates the employment of the Executive other than for
Cause (as defined herein), the Executive shall (i) continue to receive his
salary set forth in Section 4 hereof with respect to the Inventory Services
for a period of one year from the Date of Termination (as defined herein),
PROVIDED, HOWEVER, that if the Executive commences new full-time employment
during such period, such salary payments shall cease immediately upon the
commencement of such employment and (ii) receive (as and when the same would
have been payable had the Executive's employment not been terminated) his
compensation for the Advisory Services set forth in Section 4 hereof.
(b) OTHER TERMINATION. In the event that the employment of the
Executive is terminated (i) due to the death or Disability (as defined
herein) of the Executive, (ii) by the Company for "Cause", or (iii) for any
other reason not included in Section 6(a), the Executive shall have no right
to receive any compensation hereunder after the Date of Termination (as
defined herein) except that the Executive shall continue to receive (as and
when the same would have been payable had the Executive's employment not been
terminated) his compensation for the Advisory Services set forth in Section 4
hereof.
(c) DEFINITIONS. For purposes of this Agreement, (i) "Disability"
shall mean the inability (as determined by the Board of Directors of the
Company in its sole discretion) of the Executive, as a result of incapacity
due
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to physical or mental illness or disability, to perform his duties with the
Company for six consecutive months or shorter periods aggregating six months
during any twelve-month period; and (ii) "Cause" shall mean the occurrence of
one or more of the following events: (A) any intentional or willful failure
by the Executive to substantially perform his or her employment duties which
shall not have been corrected within thirty days following written notice of
the duties which such Executive has failed to substantially perform, (B) any
engaging by such Executive in misconduct which is significantly injurious to
the Company or any of its subsidiaries or affiliates, (C) any breach by such
Executive of any representation, warranty or covenant contained in the
Management Stockholders' and Optionholders' Agreement or the subscription
agreement entered into by such Executive (or any corporation of which such
Executive is the sole stockholder) with the Company, or (D) such Executive's
conviction or entry of a plea of NOLO CONTENDERE in respect of any felony, or
of a misdemeanor which results in or is reasonably expected to result in
economic or reputational injury to the Company or any of its subsidiaries or
affiliates.
(d) NOTICE OF TERMINATION. Any termination of the Executive's
employment (other than a termination due to the death of the Executive) shall
be communicated by a written notice of termination (the "Notice of
Termination") in accordance with the notice provisions herein.
(e) DATE OF TERMINATION. For purposes of this Agreement, the
"Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated due to Disability, ten days after delivery to the
Executive of the Notice of Termination, and (iii) in any other case, the date
specified in the Notice of Termination.
7. EXECUTIVE COVENANTS.
(a) NON-COMPETITION. During the Term and for two years from the
Date of Termination, the Executive expressly covenants and agrees that he
shall not, without the express written consent of the Company, for his own
account or jointly with any other person, directly or indirectly, own,
manage, operate, join, control, loan money to, invest in, or otherwise
participate in, or be connected with, or become or act as an officer,
employee, consultant, representative or agent of any business, individual,
partnership, firm or
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corporation (other than the Company and its subsidiaries and affiliates)
which is in competition with any business in which the Company or any of its
subsidiaries and affiliates are then engaged or planning to be engaged;
PROVIDED, HOWEVER, that the Executive may purchase or own, solely as an
inactive investor, the securities of any entity if (a) such securities are
publicly traded on a nationally-recognized stock exchange or on NASDAQ and
(b) the aggregate holdings of such securities by the Executive and his
immediate family do not exceed three percent (3%) of the voting power or
three percent (3%) of the capital stock of such entity.
(b) NO SOLICITATION. The Executive hereby agrees that during the
Term and for a period of two years after the Date of Termination, he shall
not, directly or indirectly, for his own account or jointly with another, or
for or on behalf of any entity, as principal, agent or otherwise, (i) solicit
or induce or in any manner attempt to solicit or induce any person employed
by or acting as a consultant to or agent of the Company or any of its
subsidiaries or affiliates to leave such position or (ii) interfere with,
disrupt or attempt to disrupt any relationship, contractual or otherwise,
between the Company or any of its subsidiaries or affiliates and any of the
customers, clients or suppliers of the Company or any of its subsidiaries or
affiliates.
(c) CONFIDENTIAL INFORMATION. The Executive expressly covenants
and agrees that he will not at any time, whether during or after the Term,
directly or indirectly, disclose, use or permit the use of any trade secrets,
confidential information or proprietary information of, or relating to, the
Company or any of its subsidiaries or affiliates, other than as contemplated
hereunder during the Term.
(d) COVENANTS NON-EXCLUSIVE. The Executive acknowledges and
agrees that the covenants contained in this Section 7 shall not be deemed
exclusive of any common law rights of the Company or any of its subsidiaries
or affiliates in connection with the relationships contemplated hereby and
that the Company shall have any and all rights as may be provided by law in
connection with the relationships contemplated hereby.
8. NOTICE. Any and all notices or any other communication
provided for herein shall be made in writing by hand-delivery, first-class
mail (registered or certified,
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with return receipt requested), telecopier, or overnight air courier
guaranteeing next day delivery, effective upon receipt, to the address of the
party appearing under his or its name below (or to such other address as may
be designated in writing by such party):
IF TO THE EXECUTIVE:
Xx. Xxxxxxx X. Small
0000 X. Xxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
IF TO THE COMPANY:
Tri-Star Aerospace Co.
00000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxxx
With a copy to:
Odyssey Partners, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx
9. MISCELLANEOUS.
(a) AMENDMENT. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is agreed to in writing
signed by the Executive and a duly authorized officer of the Company (other
than the Executive).
(b) WAIVER. No waiver by any party hereto at any time of any
breach of another party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed a waiver of any other provision hereof. This Agreement shall be
binding on and inure to the benefit of the Company and its successors and
permitted assigns.
(c) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the law of the State of Delaware without giving effect to
the conflict of laws provisions thereof.
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(d) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
(e) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(f) ENTIRE AGREEMENT. This agreement supersedes any other
agreement, whether written or oral, that may have been made or entered into
between the parties hereto and constitutes the entire agreement by the
parties related to the matters specified herein.
(g) EQUITABLE RELIEF. It is hereby acknowledged that irreparable
harm would occur in the event that any of the provisions of this Agreement
were not performed fully by the undersigned in accordance with the terms
specified herein, and that monetary damages are an inadequate remedy for
breach of this Agreement because of the difficulty of ascertaining and
quantifying the amount of damage that will be suffered by the parties relying
hereon in the event that the undertakings and provisions contained in this
Agreement were breached or violated. Accordingly, each party hereto shall be
entitled to an injunction or injunctions to restrain, enjoin, and prevent
breaches of the undertakings and provisions hereof and to enforce
specifically the undertakings and provisions hereof in any court of the
United States or any state having jurisdiction over the matter, it being
understood that any such remedies shall be in addition to, and not in lieu
of, any other rights and remedies available at law or in equity.
[signature page follows]
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IN WITNESS WHEREOF, the parties have signed and delivered this
Agreement as of the date first above written.
TRI-STAR AEROSPACE CO.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
/s/ Xxxxxxx X. Small
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Xxxxxxx X. Small
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