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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective January 1, 1997,
and entered into as of this 28th day of July 1997, by and between Xxxxxx
Aeronautical Services, Inc. ("WASI") ("Employer" or "Company"), a California
corporation, and Xxxxx Xxxxxx (hereinafter referred to as "Employee");
WHEREAS, Employer possesses valuable skills, experience and unique
business knowledge about the operation of the Company's business; and
WHEREAS, the Company desires to ensure that Employee will continue to
make his skills, experience and knowledge available to the Company in the
operation of its business;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereinafter set forth, Employer and Employee agree as follows:
1. Employment Period. The Company hereby employs the Employee and the
Employee hereby accepts employment with the Company for a period of five (5)
years beginning on January , 1997 and extending through December 1, 2002 (the
"Employment Period"), unless Employee is terminated prior thereto as herein
provided.
2. Duties of Employee. The Employee shall serve as President of the
Company, effective May 14, 1997. Consistent with his position as President, the
Employee shall perform all services and do all things necessary or advisable to
manage and conduct the operations and day-today business of the Company and
shall perform such other duties and undertake responsibilities as are reasonably
assigned to him by the Board of Directors of the Company (the "Board"), subject
always to the authority of the Board. Without limiting the foregoing, the
Employee's duties shall include, but not be limited to, (i) marketing, (ii)
general bookkeeping, (iii) managing the Company's employees, (iv) preparing the
Company's business plan, (v) preparing the Company's pro forma profit and loss
statement, balance sheet and cash flow projections for the period ending each
calendar year (presented on a quarterly basis), (vi) preparing the Company's
expense budget, and (vii) applying for local permits and business licenses. The
Employee shall have the powers and authorities as may be needed to carry out his
duties. He shall devote his full time, ability, attention and best efforts to
the business of the Company during regular business hours during the Employment
Period, and shall act at all times in accordance with what he reasonably
believes is in the best interests of the Company. Any consulting fees earned by
the Employee during the Employment Period shall be contributed to the Company.
3. Compensation. During the Employment Period, Employer agrees to
provide Employee with the following compensation:
(A) Salary. As compensation for his services hereunder, the
Employee shall receive a base salary (the "Base Salary") of One Hundred Thousand
Dollars ($100,000.00) per annum, to be paid not less frequently than monthly in
accordance with Employer's usual
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payroll practices. The Base Salary may be increased or decreased subject to
Company profitability and cash needs, at to end of each twelve (12) month period
(or other more frequent intervals) by the Board consistent with the Employee's
performance and the Company's policy regarding increases in officer compensation
established from time to time by the Board.
(B) Bonus. Upon the attainment of performance objectives
established by the Board, the Employee shall be entitled to receive an annual
cash bonus equal to fifteen (15%) of the Company's pre-tax net income net of
such bonus.
4. Fringe Benefits. During the Employment Period, Employer agrees
to provide Employee with the following fringe benefits:
(A) Business Expense Reimbursement. Employee shall be authorized
to incur reasonable business expenses in performing his duties under this
Agreement, including, but not limited to, expenses for entertainment, long
distance telephone calls, lodging, meals, air fare, transportation and travel.
Employer will reimburse Employee for all such reasonable expenses upon
presentation by Employee, from time to time, of an itemized account or other
appropriate documentation of such expenses.
(B) Vacation. Employee shall be entitled to four (4) weeks of
paid vacation during each Employment; provided, however, that Employer and
Employee must mutually agree as to the time during any Employment Year when such
vacation may be taken.
(C) Benefits. Employee will be eligible to participate in
benefit plans or programs and policies provided to other Employer employees of
similar status, on the terms and conditions existing, and as may be changed from
time to time, for participation in those plans, programs and policies, such
terms and conditions to be similar to those provided to employees of Xxxxxx
Lease Finance Corporation. The Employee may receive such other and additional
benefits as the Board in its discretion may determine from time to time.
5. Termination.
(A) Company Termination for Cause. Notwithstanding anything to
the contrary herein, the Employee's employment under this Agreement may be
terminated by the Board at any time effective upon delivery of written notice to
the Employee, if any of the following events occur:
(i) The Employee is found guilty of serious,
criminal misconduct by a court of competent jurisdiction; acts or fails to act
in reckless or willful disregard of lawful instructions given under authority of
the Board; engages in acts of gross misconduct; or misuses corporate funds.
(ii) The Employee materially breaches any of his
obligations under this Agreement or the Shareholders' Agreement dated as of
October 1, 1994 among the Xxxxxxx X. Xxxxxx Company, Xxxxx Xxxxxx, Xxxxx X.
Xxxxxxxx-Xxxxxx and the Company (the "Shareholders' Agreement"), and fails to
correct the same within thirty (30) days or delivery of written notice thereof
to the Employee by the Company.
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The notice of termination shall specify that the termination is
pursuant to this Section 5, and the Employee shall be entitled to a full hearing
before the entire Board at a Board meeting held within ten (10) days of receipt
by the Employee of his notice of termination. Upon termination under this
Section 5, all compensation and benefits (except the ability to exercise options
or other types of equity incentives, if any, to the extent vested, for one (1)
month after the effective date of termination) shall immediately cease; provided
that the Company shall pay the Employee's Base Salary through the effective date
of termination.
(B) Termination Without Cause By Company. The Company may
terminate the employment of the Employee under this Agreement, for any reason or
for no reason, by giving at least sixty (60) days prior written notice of the
effective date of termination to the Employee; provided that, upon any such
termination under this Section, the parties agree that the Company shall pay the
Employee's Base Salary through the effective date of termination and the Company
shall make a cash payment to the Employee equal to two (2) months of the
Employee's then Base Salary within thirty (30) days of the effective date of
termination. In addition to the foregoing, the Company shall:
(i) pay the Employee any annual bonuses which would
have been earned in connection with services performed under this Agreement
prior to termination, prorated accordingly for the portion of the year during
which such services were rendered; and
(ii) obtain mutual agreement with the Employee on any
and all statements that may be issued regarding the reasons for termination.
Any material and adverse change in the Employee's
responsibilities specified hereunder unless otherwise agreed to by the Employee
shall be deemed to be a termination under this Section 5. B, unless cured within
thirty (30) days of receipt by the Company of written notice from the Employee
specifying such change in responsibility.
Unless the Company provides the Employee with written notice or
termination under this Section 5. B sixty (60) days prior to the expiration of
the Employment Period, this Agreement shall automatically be extended for one
year. If such notice of termination is given and this Agreement is not extended
beyond the Employment Period, it shall be deemed terminated as of the expiration
of the Employment Period or such earlier date as specified in the notice of
termination under this Section 5. B, and the Employee shall be entitled to all
the benefits provided in this Section 5. B. Termination under this Section 5. B
shall be deemed a termination "without cause" for purposes of this Agreement.
(C) Termination Without Cause By the Employee. A termination of
his employment by the Employee, other than as a result or the breach of this
Agreement by the Company, shall entitle the Employee to no further salary or
benefits.
(D) Death or Disability. If the Employee shall die or shall be
disabled by reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of not less than
twelve (12) months that would render the Employee unable to perform the services
being performed by the Employee for the Company
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prior to the occurrence of the disability as described, this Agreement shall be
deemed terminated as of the date of death or determination of the disability as
described above. Upon any such termination under this Section, the parties agree
that the Company shall make a cash payment payable in monthly installments to
the Employee or the Employee's estate equal to half of the Employee's then
current annual Base Salary through the remainder of the Employment Term. In
addition, the Company shall pay the Employee's wife, or if he has no wife, his
estate, any bonus and/or other income Employee has earned through the date of
termination but has not been paid, including but not limited to accrued bonus
from any prior years.
5. Merger or Other Change in Control. Employee shall have the right to
terminate this Agreement for Cause at any time within ninety (90) days after
completion of a Change in Control of the Company. A Change of Control is deemed
to have occurred after the completion of (i) a merger of the Company with any
other corporation as a result of which the shareholders of the Company
immediately prior to such merger fail to win at least a majority of the voting
securities of the surviving corporation in such merger immediately after the
merger, and members of the Board of Directors of the Company, elected by the
shareholders of the Company, fail to constitute a majority of the Board of
Directors of the surviving corporation following completion of the merger, or
(ii) a sale of all or substantially all of the assets of the Company to another
corporation, if (x) a majority of the directors of the ultimate parent of the
purchase immediately following the purchase and sale were not members of the
Board of Directors of the Company immediately prior to such sale, and (y)
shareholders of the Company immediately prior to such sale do not hold a
majority of the voting securities of the ultimate parent of the purchasing
corporation following completion of such sale, or (iii) a purchase by another
person, firm or corporation of a majority of the voting securities of the
Company elected by the shareholders of the Company (other than such purchaser)
fail to constitute a majority of the Board of Directors of the Company. Employer
and Employee agree that, in the event Employee terminates this Agreement
pursuant to this paragraph 5, Employee shall receive the equivalent of six (6)
months Base Salary.
6. Maintenance of Confidentiality and Duty of Loyalty. Employee
acknowledges that, pursuant to his employment with Employer, he will necessarily
have access to trade secrets and information that is confidential and
proprietary to Employer in connection with the performance of his duties. In
consideration for the disclosure to Employee of, and the grant to Employee of
access to such valuable and confidential information and in consideration of his
employment, Employee shall comply in all respects with the provisions of this
Section 7.
(A) Nondisclosure. During the Employment Period and thereafter,
Confidential and Proprietary Information of Employer of which Employee gains
knowledge during the Employment Period or prior thereto in connection with his
hiring shall be used by Employee only for the benefit of Employer in connection
with Employee's performance of his employment duties, and Employee shall not,
and shall not allow any other person that gains access to such information in
any manner or form, disclose, communicate, divulge or otherwise make available,
or use any such information, other than for the immediate benefit of Employer
and without the prior written consent of Employer. For purposes of this
Agreement, the term "Confidential and Proprietary Information" means information
not generally known to the public and which is proprietary to Employer and
relates to Employer's existing or reasonably foreseeable
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business or operations, including but not limited to trade secrets, business
plans, advertising or public relations strategies, financial information,
budgets, personnel information, customer information and lists, and information
pertaining to research, development, manufacturing, engineering, processing,
product designs (whether or not patented or patentable), purchasing and
licensing, and may be embodied in reports or other writings or in blue prints or
in other tangible forms such as equipment and models. Employee will refrain from
any acts or omissions that would jeopardize the confidentiality or reduce the
value of any Employer Confidential and Proprietary Information.
(B) Covenant of Loyalty. During the Employment Period and for
any period Employee is receiving compensation from Employer, Employee shall not,
on his own account or as an employee, agent, promoter, consultant, partner,
officer, director, or shareholder of any other person, firm, entity, partnership
or corporation, own, operate, lease, franchise, conduct, engage in, be connected
with, have any interest in, or assist any person or entity engaged in any
business in the continental United States that is in any way competitive with or
similar to the business that is conducted by Employer or is in the same general
field or industry as Employer.
Without limiting the generality of the foregoing, Employee does hereby covenant
not to, during the Employment Period and for any period that he is receiving
compensation from Employer:
(i) solicit, accept or receive any compensation from any customer of
Employer or any business competitive to that of Employer; or
(ii) contact, solicit or call upon any customer or supplier of
Employer on behalf of any person or entity other than Employer
for the purpose of selling, providing or performing any services
of the type normally provided or performed by Employer; or
(iii) induce or attempt to induce any person or entity to curtail or
cancel any business or contracts which such person or entity had
with Employer; or
(iv) induce or attempt to induce any person or entity to terminate,
cancel or breach any contract which such person or entity has
with Employer, or receive or accept any benefits from such
termination, cancellation or breach.
(C) No Solicitation. During the Employment Period, during any
period Employee is receiving compensation from Employer and for one year
thereafter, Employee agrees not directly or indirectly to solicit, induce or
attempt to solicit or induce any employee of Employer to terminate his or her
employment with Employer in order to become employed by any other person or
entity.
(D) Injunctive Relief. Employee expressly agrees that the
covenants set forth in this Section 7 are reasonable and necessary to protect
Employer and its legitimate business interests, and to prevent the unauthorized
dissemination of Confidential and Proprietary Information to competitors of
Employer. Employee also agrees that Employer will be irreparably harmed and that
damages alone cannot adequately compensate Employer if there is a violation of
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this Section 7 by Employee, and that injunctive relief against Employee is
essential for the protection of Employer. Therefore, in the event of any such
breach, it is agreed that, in addition to any other remedies available, Employer
shall be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction, plus attorneys' feet actually incurred for the securing
of such relief. Furthermore, Employee agrees that Employer shall not be required
to post a bond or other collateral security with the court if Employer seeks
injunctive relief to the extent any provision of this Section 7 is deemed
unenforceable by virtue of its scope or limitation. Employee and Employer agree
that the scope and limitation provisions shall nevertheless be enforceable to
the fullest extent permissible under the laws and public policies applied in
such jurisdiction where enforcement is sought.
7. Notices. Any notice which either party may wish or be required to
give to the other party pursuant to this Agreement shall be in writing and shall
be either personally served or deposited in the United States mail, registered
or certified and with proper postage prepaid, addressed as follows:
To Employer: Xxxxxx Aeronautical Services, Inc.
c/x Xxxxxx Lease Finance Corporation
Xxxxxxx X. Xxxxxx, President and CEO
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
To Employee: Xxx Xxxxxx
000 Xxxx Xxxxx
Xxx Xxxxx, XX 00000
or to such other address as the parties may designate from time to time by
written notice to the other party given in the above manner. Notice given by
personal service shall be deemed effective upon service. Notice given by
registered or certified mail shall be deemed effective three (3) days after
deposit in the mail.
8. Miscellaneous.
(A) Modifications. This Agreement supersedes all prior
agreements and understandings between the parties relating to the employment of
Employee by Employer, and it may not be changed or terminated orally. No
modification, termination, or attempted waiver of any other provisions of this
Agreement shall be valid unless in writing signed by the party against whom the
same is sought to be enforced.
(B) Enforceability and Severability. If any term of this
Agreement is deemed void, voidable, invalid or unenforceable for any reason,
such term shall be deemed severable from all other terms of this Agreement,
which shall continue in full force and effect.
(C) Prior Obligations of Employee. Employee represents and
warrants that by entering this Agreement he is not breaching any contractual
relationship or obligation toward any person or entity. Furthermore, he
understands that Employer is hiring him solely for
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the purpose of engaging his skill and expertise and not to acquire trade secrets
or confidential information belonging to any other person or entity. Employee
further understands that he is prohibited from disclosing such trade secrets and
proprietary information to Employer.
(D) Arbitration. Any disputes or controversy between the parties
to this Agreement, including allegations of fraud and misrepresentation, arising
from or as a result of this Agreement, the resulting business dealings between
Employer and Employee, Employee's employment or the termination thereof,
including any claims of discrimination or other claims under any federal, state,
or local law or regulation now in existence or hereinafter enacted concerning in
any way the subject of Employee's employment with Employer or its termination,
shall be resolved, after the parties attempt informal resolution, exclusively by
arbitration in accordance with the Rules and Regulations of the American
Arbitration Association. All Arbitration hearings shall be held in San Francisco
County, California within one hundred twenty (120) days from the date
Arbitration is demanded by any of the parties and the Arbitrator shall render
his/her written decision within thirty (30) days after the Arbitration hearing
has concluded. The decision of the Arbitrator shall be final and binding on all
parties, and may be entered as judgment by any party with any federal or state
court of competent jurisdiction. The parties to the Arbitration hearing shall
share any filing fees and Arbitrator's fees which must be paid in advance of the
hearing equally; however, as set forth below the prevailing party shall be
entitled to recover from the losing party all costs that it has incurred as a
result of the Arbitration hearing, including fees paid to the arbitrator, travel
costs and attorneys' fees. This provision shall not alter the rights of the
parties to seek and obtain the provisional equitable remedies provided under any
applicable state or federal law. Employee represents, by his signature, that he
is making a voluntary and knowing waiver of his right to pursue any and all
employment-related claims in court.
(E) Successors. This Agreement shall extend to and be binding
upon Employee, his legal representatives, heirs and distributees, and upon
Employer, its successors and assigns.
(F) Governing Law. This Agreement and all remedies hereunder
shall be construed and enforced in accordance with the laws of the State of
California.
(G) Jurisdiction; Venue; Attorneys' Fees. The parties do hereby
agree and submit to personal jurisdiction in the State of California for the
purposes of any proceedings brought to enforce or construe the terms of this
Agreement or to resolve any dispute or controversy arising under, as a result
of, or in connection with this Agreement, and do hereby agree and stipulate that
any such proceedings shall be venued and held in San Francisco County,
California. The prevailing party in any such proceeding shall be entitled to
recover from the losing party all costs that it has incurred as a result of such
proceeding including but not limited to all travel costs and attorneys' fees.
(H) Effective Date. This Agreement shall be effective as of
January 1, 1997.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the date first set forth above.
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Employer
XXXXXX AERONAUTICAL SERVICES, INC.
BY: __________________________________________
Xxxxxxx X. Xxxxxx, Chairman
Employee:
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XXXXX XXXXXX, President
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