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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of this 1st day of March, 1992 by
and between BE Avionics, Inc., a Delaware corporation (the "Company" or
"Employer"), and Marco Lanza (the "Executive").
RECITALS
1. The Executive has been employed by the Employer as Vice President,
Marketing and Product Development.
2. The services and ability of the Executive have constituted a major
factor in the growth and development of the Employer.
3. The Employer desires to continue to employ and retain the Executive
and to make secure for itself the experience, abilities and services of the
Executive and to prevent the loss of such experience, services and abilities.
4. In consideration of the employment to be provided hereby and the
amounts to be paid as provided herein, the Executive desires to be employed by
the Employer and to agree with the Employer as further provided herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Employer shall employ the Executive, and the Executive shall
perform services for and continue in the employment of the Employer, for a
period of five (5) years (the "Employment Period") commencing on March 1, 1992
and ending on February 28, 1997 (the "Expiration Date"), unless such employment
shall have been sooner terminated as hereinafter set forth. In consideration of
such employment and in consideration of any subsequent retention as a consultant
as provided in Section 4(e) hereof, the Executive has concurrently executed a
Proprietary Rights Agreement, a copy of which is attached as Exhibit A hereto.
2. POSITION AND DUTIES. The Executive shall serve in the capacity of President,
Inflight Entertainment Division or in such other executive position as the Board
of Directors of the Company may designate from time to time, shall be
accountable to, and shall have such other powers, duties and responsibilities,
consistent with his capacity, as may from time to time be prescribed by the
Board of Directors. The Executive shall perform and discharge, faithfully,
diligently and to the best of his ability, such duties and responsibilities. The
Executive shall devote substantially all of his working time and efforts to the
business and affairs of the Company.
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3. COMPENSATION.
(a) SALARY. During each year of the Employment Period, the Executive
shall receive an annual salary (the "Salary") of $150,000. Such rate shall be
subject to adjustment from time to time by the Board of Directors; PROVIDED,
HOWEVER, that it shall at no time be adjusted below $150,000. The Salary shall
be payable biweekly or in accordance with the Company's current payroll
practices. Except as otherwise provided in this Agreement, the Salary shall be
pro-rated for any period of service less than a full year.
(b) INCENTIVE BONUS. During each year of the Employment Period, the
Executive shall receive an incentive bonus for such year as determined in
advance by the Board of Directors of the Company at the end of the year, which
bonus shall not exceed 100% of the Salary.
(c) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable business expenses
incurred by him on behalf of the Employer.
(d) FRINGE BENEFITS. During the Employment Period, the Executive shall
be entitled to participate in or receive benefits under any life or disability
insurance, health, pension, retirement and accident plans or arrangements made
generally available by the Company to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. In accordance with the
Company policy, the Executive shall also be entitled to paid vacation in any
fiscal year during the Employment Period as well as all paid holidays given by
the Company to its employees.
(e) AUTOMOBILE. Without limiting the generality of the foregoing,
during the Employment Period, the Executive shall be furnished with a
Company-owned automobile or an automobile allowance, at the discretion of the
Company.
4. TERMINATION AND COMPENSATION THEREON.
(a) TERMINATION DATE. The term (the "Termination Date") shall mean the
earlier of (i) the Expiration Date or (ii) if the Executive's employment is
terminated (A) by his death, the date of his death, or (B) for any other reason,
the date on which such termination is to be effective pursuant to the notice of
termination given by the party terminating the employment relationship.
(b) DEATH. The Executive's employment hereunder shall terminate upon
his death. In such event, the Company shall pay to such person as the Executive
shall have designated in a notice filed with the Company, or, if no such person
shall have been designated, to his estate, an amount equal to the Salary that
would have been due to the Executive had this Agreement been in effect from the
date of his death until the Expiration Date.
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(c) INCAPACITY. If in the reasonable judgment of the Board of Directors
of the Company, as a result of the Executive's incapacity due to physical or
mental illness or otherwise, the Executive shall for at least six consecutive
months during the term of this Agreement have been unable to perform his duties
under this Agreement on a full-time basis, the Company may terminate the
Executive's employment hereunder by notice to the Executive. In such event, the
Employer shall continue to pay the Executive his Salary (at the rate in effect
as of the Termination Date) and (to the extent legally practicable) extend to
him the applicable fringe benefits referred to in Section 3(d) hereof until the
Expiration Date. The Company's obligation to pay the Executive his Salary and
extend to him such benefits shall terminate if the Executive subsequently takes
other employment to the extent of the Executive's salary and benefits from such
other employment. Any dispute between the Board of Directors of the Company and
the Executive with respect to the Executive's incapacity shall be settled by
reference to a competent medical authority mutually agreed to by the Board of
Directors and the Executive, whose decision shall be binding on all parties.
(d) TERMINATION BY THE COMPANY. The Company may terminate the
Executive's employment hereunder for "cause". For purposes of this Agreement,
"cause" shall mean (A) the Executive's material failure, refusal or neglect to
perform and discharge his duties and responsibilities hereunder (including
duties prescribed by the Board of Directors pursuant to Section 2), other
material breach of the terms hereof, or breach of his fiduciary duties as an
officer or member of the Board of Directors of the Company or any subsidiary or
affiliate thereof, as applicable, or (B) a felony conviction or a conviction for
any crime involving the Executive's personal dishonesty or moral turpitude. If
the Executive's employment is terminated pursuant to this Section 4(d), the
Employer shall have no further obligations to the Executive hereunder after the
Termination Date, except for unpaid Salary and benefits accrued through the
Termination Date.
(e) CONSULTING PERIOD UPON TERMINATION. If the Company (i) terminates
the Executive's employment hereunder prior to the Expiration Date for any reason
whatsoever or (ii) fails to extend the Executive's employment hereunder for a
period of at least three years beyond the Expiration Date at his then current
Salary and otherwise on the terms and conditions set forth herein, then the
Company shall have the option, at its sole discretion, of retaining the
Executive as a consultant to perform such services as the Company may reasonably
request, in consideration for which services the Company shall continue to pay
the Executive the same Salary and (to the extent legally practicable) extend to
him the applicable fringe benefits referred to in Section 3(d), as in effect on
the Termination date (in the case of (i) above) or the Expiration Date (in the
case of (ii) above) for the period commencing on the Termination Date or
Expiration Date and ending on the date five years after the Expiration Date or
on such earlier date as the Company may otherwise specify by at least two weeks'
prior written notice (the "Consulting Period").
5. AMENDMENTS. No amendment to this Agreement or any schedule hereto shall be
effective unless it shall be in writing and signed by each party hereto.
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6. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed given when delivered personally or three days after being
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Employer, to it at:
c/o The K.A.D. Companies, Inc.
36 Washington Street, Suite 190
Wellesley, MA 02181
Attention: Amin J. Khoury
with copies to
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: C. Dean Dusseault
(ii) if to the Executive, to him at:
1601 East Chestnut Ave.
Santa Ana, CA 92701
7. ENTIRE AGREEMENT. This Agreement and the Proprietary Rights Agreement of even
date herewith constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
8. MISCELLANEOUS. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument and shall be governed and construed in accordance with
the laws (other than the conflict of laws rules) of The State of California and
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first written above.
BE AVIONICS, INC.
By:___________________________
Amin J. Khoury
Chairman of the Board
MARCO LANZA
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Exhibit A
PROPRIETARY RIGHTS AND CONSULTING AGREEMENT
This Agreement is intended to set forth in writing my responsibility to BE
Avionics, Inc. (the "Company") during my employment with the Company, during any
subsequent consulting period and thereafter. I recognize that the Company is
engaged in a continuous program of research, development, and production
respecting its business, present and future. As part of my employment with the
Company and any subsequent consultancy, I have certain obligations relating to
confidential information of the Company and inventions which I develop during my
employment or consultancy.
In return for my employment by the Company, I acknowledge and agree that:
1. AGREEMENT; EFFECTIVE DATE. I have today executed an Employment Agreement of
even date herewith (the "Employment Agreement") between the Company and myself.
In return for my employment pursuant thereto and any subsequent consulting
pursuant to Section 4(e) thereof, I agree to abide by the terms of this
Proprietary Rights Agreement during my employment with the Company and any
subsequent Consulting Period (as defined in Section 4(e) of the Employment
Agreement). This Proprietary Rights Agreement shall be effective on March 1,
1992 and shall continue in effect throughout my employment and the Consulting
Period, if any (the "Agreement Period").
2. CONFIDENTIALITY. I will maintain in confidence and will not disclose or use,
either during or after the Agreement Period, any proprietary or confidential
information or know-how belonging to the Company ("Proprietary Information"),
whether or not in written form, except to the extent required to perform duties
on behalf of the Company. Proprietary Information refers to any information, not
generally known in the relevant trade or industry, which was obtained from the
Company, or which was learned, discovered, developed, conceived, originated or
prepared by me in the scope of my employment or consultancy. Such Proprietary
Information includes, but is not limited to, the Company's inventions or
products, research and development, production processes, manufacturing and
engineering processes, machines and equipment, finances, customers, marketing,
and production and future business plans, information belonging to customers or
suppliers of the Company disclosed incidental to my employment or consultancy
and any other information which is identified as confidential by the Company.
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3. INVENTIONS.
3.1. DEFINITION OF INVENTIONS. As used in this Agreement, the term
"Invention" means any new or useful art, discovery, contribution, finding or
improvement, whether or not patentable, and all related know-how. Inventions
include, but are not limited to, all designs, discoveries, formulas, processes,
manufacturing techniques, semiconductor designs, computer software, inventions,
improvements and ideas.
3.2. DISCLOSURE AND ASSIGNMENT OF INVENTIONS.
(a) I will promptly disclose and describe to the Company all Inventions
which I may solely or jointly conceive, develop, or reduce to practice during
the Agreement Period (i) which relate, at the time of conception, development,
or reduction to practice of the Invention, to the Company's business or actual
or demonstrably anticipated research or development, (ii) which were developed,
in whole or in part, on the Company's time or with the use of any of the
Company's equipment, supplies, facilities or trade secret information, or (iii)
which resulted from any work I performed for the Company (the "Company
Inventions"). I assign all my right, title, and interest worldwide in the
Company Inventions and in all intellectual property rights based upon the
Company Inventions. However, I do not assign or agree to assign any Inventions
relating in any way to the Company business or demonstrably anticipated research
and development which were made by me prior to my employment with the Company,
which Inventions, if any, are identified on Exhibit "A" to this Agreement.
Exhibit "A" contains no confidential information. I have no rights in any
Inventions other than the inventions specified in Exhibit "A". If no such list
is attached, I have no such Inventions or I grant an irrevocable, nonexclusive,
royalty-free, worldwide license to the Company to make, use and sell Inventions
developed by me prior to my employment with the Company.
(b) I recognize that Inventions relating to my activities while working
for the Company and conceived or made by me, alone or with others, within one
(1) year after termination of the Agreement Period may have been conceived in
significant part while I was retained by the Company. Accordingly, I agree that
such Inventions shall be presumed to have been conceived during my employment or
consultancy with the Company and are to be assigned to the Company as a Company
Invention unless and until I have established the contrary. I agree to disclose
promptly in writing to the Company all Inventions made or conceived by me for
one (1) year after the Agreement Period, whether or not I believe such
Inventions are subject to this Agreement, to permit a determination by the
Company as to whether or not the Inventions should be the property of the
Company. Any such information will be received in confidence by the Company.
3.3. NON-ASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a Non-Assignable Invention under the
provision of Section 2870 of the California Labor Code.
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4. DOCUMENTS AND MATERIAL. Upon termination of my employment with the Company
(regardless of whether or not the Company retains me as a consultant) or at any
other time upon the Company's request, I will promptly deliver to the Company,
without retaining any copies, all documents and other materials furnished to me
by the Company, prepared by me for the Company or otherwise relating to the
Company's business, including without limitation all written and tangible
material in my possession incorporating any Proprietary Information.
5. COMPETITIVE EMPLOYMENT. During the Agreement Period, I will not engage in any
employment, consulting, or other activity in any business competitive with the
Company without the Company's written consent.
6. NON-SOLICITATION. During the Agreement Period and for a period of two (2)
years thereafter, I will not solicit or encourage, or cause others to solicit or
encourage, any employees of the Company to terminate their employment with the
Company.
7. ACTS TO SECURE PROPRIETARY RIGHTS.
7.1. FURTHER ACTS. I agree to perform, during and after the Agreement
Period, all acts deemed necessary or desirable by the Company to permit and
assist it, at its expense, in perfecting and enforcing the full benefits,
enjoyment, rights and title throughout the world in the Company Inventions. Such
acts may include, but are not limited to, execution of documents and assistance
or cooperation in the registration and enforcement of applicable patents and
copyrights or other legal proceedings.
7.2. APPOINTMENT OF ATTORNEY-IN-FACT. In the event that the Company is
unable for any reason whatsoever to secure my signature to any lawful and
necessary document required to apply for or execute any patent, copyright or
other applications with respect to any Company Inventions (including
improvements, renewals, extensions, continuations, divisions or continuations in
part thereof), I hereby irrevocably appoint the Company and its duly authorized
officers and agents as my agents and attorneys-in-fact to execute and file any
such application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights or other rights thereon with the
same legal force and effect as if executed by me.
8. NO CONFLICTING OBLIGATIONS. My performance of this Agreement does not and
will not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by me prior to my employment with the Company. I will
not disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or other
person or entity. I am not a party to any other agreement which will interfere
with my full compliance with this Agreement. I will not enter into any
agreement, whether written or oral, conflicting with the provisions of this
Agreement.
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9. SURVIVAL. Notwithstanding the termination of the Agreement Period, Sections
2, 3.2, 4, 6 and 7 hereof shall survive such termination. This Agreement does
not in any way restrict my right or the right of the Company to terminate my
employment at any time, for any reason or for no reason. I understand, however,
that only the Company may terminate my consultancy, in its sole discretion, by
at least two (2) weeks written notice.
10. SPECIFIC PERFORMANCE. A breach of any of the promises or agreements
contained herein will result in irreparable and continuing damage to the Company
for which there will be no adequate remedy at law, and the Company shall be
entitled to injunctive relief and/or a decree for specific performance, and such
other relief as may be proper (including monetary damages if appropriate).
11. WAIVER. The waiver by the Company of a breach of any provision of this
Agreement by me will not operate or be construed as a waiver of any other or
subsequent breach by me.
12. SEVERABILITY. If any part of this Agreement is found invalid or
unenforceable, that part will be amended to achieve as nearly as possible the
same economic effect as the original provision, and the remainder of this
Agreement will remain in full force.
13. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California as
applied to agreements entered into and to be performed entirely within
California between California residents.
14. CHOICE OF FORUM. The parties hereby submit to the jurisdiction of, and waive
any venue objections against, the United States District Court for Los
Angeles/Orange County, and the Superior and Municipal Courts of the State of
California, Orange County, in any litigation arising out of this Agreement.
15. ENTIRE AGREEMENT. This Agreement, the Exhibits to this Agreement and the
Employment Agreement of even date herewith constitute the entire agreement
between the parties relating to this subject matter and supersede all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral. This Agreement may be amended or modified only with the written
consent of both me and the Company. No oral waiver, amendment or modification
will be effective under any circumstances whatsoever.
16. ASSIGNMENT. This Agreement may be assigned by the Company. I may not assign
or delegate my duties under this Agreement without the Company's prior written
approval. This Agreement shall be binding upon my heirs, successors, and
permitted assignees.
EMPLOYEE:
Date: March 1, 1992 _________________________
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Signature
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Printed Name
BE AVIONICS, INC.
Date: March 1, 1992 By:______________________
Title:___________________
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LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the California
Labor Code that the above Agreement between you and the Company does not require
you to assign to the Company, any invention for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on your own time, and (a) which does not relate (1) to the
business of the Company or (2) to the Company's actual or demonstrably
anticipated research or development, or (b) which does not result from any work
performed by you for the Company. This limited exclusion does not apply to any
patent or invention covered by a contract between the Company and the United
States or any of its agencies requiring full title to such patent or invention
to be in the United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
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Signature
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Printed Name of Employee
Dated:___________________
Witnessed by:
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Representative
Dated:________________________
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EXHIBIT "A"
PRIOR INVENTION
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