EMPLOYMENT AGREEMENT
PRECISE MACHINE PARTNERS, L.L.P. a Texas limited liability partnership
(the "Partnership"), and XXXX X. XXXXXXXXX ("Employee") hereby agree as follows:
1. Employment. The Partnership hereby employs Employee, and Employee
accepts employment from the Partnership, upon the terms and conditions
hereinafter set forth. Any and all employment agreements heretofore entered into
between the Partnership 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 as of August __, 1998 and shall continue for a one
(1) year period terminating August __, 1999; provided, however, 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 Partnership;
(b) Upon the death of the Employee;
(c) At the Partnership's option if Employee shall suffer a
permanent disability; (For purpose of this Agreement "permanent
disability" shall be defined as Employee's inability, through physical
or mental illness or other cause, to perform the essential functions of
Employee's usual duties, with or without a reasonable accommodation
that would not cause an undue hardship to the Partnership, for a period
of 3 months or more. The Partnership's option in this regard shall be
exercised in writing and mailed or delivered to Employee or Employee's
personal representative, and shall be effective on the date of mailing
or delivery of the option as exercised.) or
(d) At the Partnership's option upon ten (10) 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 Partnership determines that
Employee is not performing the duties required of him hereunder to the
satisfaction of the Partnership.
Upon termination of employment for any reason, Employee shall be entitled to
receive only the Base Salary and Performance Bonus (as such terms are
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 Partnership 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) payable in equal monthly
installments during the term of employment.
(b) In addition the Base Salary payable under Section 3(a)
above, the Partnership shall pay to Employee a "Performance Bonus". The
amount of the annual Performance Bonus shall be equal to Thirty
Thousand Dollars ($30,000.00) and shall deemed earned on a pro rata
basis during the term of employment hereunder. Such Performance Bonus
shall be paid in a single payment not later than the last day of the
term of employment hereunder.
(c) In addition to the Base Salary and Performance Bonus
Employee shall be entitled to receive such bonus compensation as the
Managing Partner of the Partnership may authorize from time to time.
4. Duties of Employee.
(a) Employee shall serve as General Manager of the
Partnership's. plant located in Dallas, Texas or in such other
positions as may be determined by the Managing Partner of the
Partnership, and Employee shall perform such duties on behalf of the
Partnership and its subsidiaries by such means and in such manner as
may be specified from time to time by the officers or Managing Partner
of the Partnership. At all times during the term of employment
hereunder, Employee shall be headquartered in Irving, Texas.
(b) Employee agrees to abide by and conform to all rules
established by the Partnership 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 Partnership
as is necessary for the successful operation of the Partnership and
shall endeavor at all times to improve the business of the Partnership.
5. Expenses. During the period of Employee's employment, except as
otherwise specifically provided in this Agreement, the Partnership will pay
directly, or reimburse Employee for, all items of reasonable and necessary
business expenses approved in advance by the Partnership if such expenses are
incurred by Employee in the interest of the business of the Partnership. The
Partnership 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
Partnership's Managing Partner. All such expenses paid by Employee will be
reimbursed by the Partnership upon presentation by Employee, from time to time
(but not less than quarterly), of an itemized account of such expenditures in
accordance with the Partnership'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 Partnership for other employees of the
Partnership performing duties similar to those of Employee.
(b) Employee shall be entitled to an annual vacation without
loss of compensation for period of three (3) weeks.
7. Covenants of Employee.
(a) During the term of Employee's employment with the
Partnership 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 Partnership, 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 Partnership or developed by Employee on behalf of the
Partnership during his employment with the Partnership, 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 Partnership, 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 Partnership and the goodwill of the Partnership,
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
Partnership 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 Partnership;
(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 Partnership. 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 Partnership is engaged in
marketing its products, and if it involves the manufacture of
component parts for commercial aircraft 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 Partnership or as to which the
Partnership has then formulated definitive plans to enter;
(iii) induce any salesman, distributor, supplier,
manufacturer, representative, agent, jobber or other person
transacting business with the Partnership to terminate their
relationship with the Partnership, or to represent, distribute
or sell products in competition with products of the
Partnership; or
(iv) induce or cause any employee of the Partnership
to leave the employ of the Partnership.
(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 Partnership
is sold to any entity or individuals unaffiliated with the
Partnership, its successors or assigns; or
(ii) eliminated if the business currently operated by
the Partnership is terminated and the assets of the
Partnership 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 Partnership, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Partnership 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
Partnership, 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
Partnership, 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
Partnership then in Employee's possession, whether prepared by Employee or
others, will be delivered to and left with the Partnership, and Employee agrees
not to retain copies of the foregoing documents without the written consent of
the Partnership.
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 Partnership may terminate the employment of Employee by written
notice thereof to Employee and with payment of the Base Salary to Employee only
to the date of such termination. 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 Partnership and will authorize recourse to injunction
and/or specific performance as well as to other legal or equitable remedies to
which the Partnership may be entitled. 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 Partnership shall not constitute a waiver of the right to pursue
other available remedies. In the event it becomes necessary for the Partnership
to institute a suit at law or in equity for the purpose of enforcing any of the
provisions of this Agreement, the Partnership shall be entitled to recover from
Employee the Partnership's reasonable attorneys' fees plus court costs and
expenses.
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 Partnership 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 Partnership 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
Partnership 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 Partnership, to:
Xxxxxxxx X. XxXxxxx, Executive Vice President
Precise Machine Company
X.X. Xxx 000
Xx. Xxxxxxx, XX 00000-0000
and, if to Employee, to:
Xx. Xxxx X. Xxxxxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxx, XX 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.
The parties have executed this Agreement as of August __, 1998.
PRECISE MACHINE PARTNERS, L.L.P.
("Partnership")
By: Precise Machine Company, Managing
Partner
By: /s/ Xxxxxxxx X. XxXxxxx
--------------------------------------------
Xxxxxxxx X. XxXxxxx, Executive Vice
President
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------------------------
Xxxx X. Xxxxxxxxx
("Employee")
