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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 31st day of
October, 1996, and effective as of November 1, 1996 by and between JOSEPH
NELSON, whose address is 5565 Leitner Dr. East Coral Springs, Florida,
("Employee"), and JET AVIATION TRADING, INC., a Florida Corporation, whose
address is 1170 N.W. 163rd Drive, Miami, FL 33169 (hereinafter called "JET,
Employer or Company").
WITNESSETH:
WHEREAS, JET is in the business of buying and selling aircraft, engines
and parts and related products and materials (the "Business of Employer"); and
WHEREAS, Employee will be employed as President, Chief Executive
Officer and Director of JET and whose duties include responsibility for and
oversight of all day to day activities of JET and other functions; and
WHEREAS, JET does business, purchases inventory and has customers
throughout the world; and
WHEREAS, this Agreement sets forth in writing the understanding of the
parties agreed to between themselves to provide for the employment of Employee
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the above and foregoing premises
and the employment of the Employee during the term hereof, the parties agree as
follows:
1. Recitals. The above-mentioned recitals are true and correct and are
incorporated herein and by reference made a part of this Agreement.
2. Revocation of Prior Agreements: The parties do hereby cancel and
revoke all prior agreements and understandings whether oral or written, relating
to the subject matter of this Agreement.
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3. Term of Employment. Subject to the provisions hereof, the Employer
hereby employs Employee for the period commencing as of November 1, 1996 and
continuing until October 31, 1999, (the "Term") or unless sooner terminated as
provided herein. Each 12 month period of employment hereunder, commencing
November 1, 1996, shall be called an "Employment Year." In the event the
Employee is still employed at the end of the Term, then this Agreement shall
automatically extend from month-to-month thereafter on all of these terms and
conditions except that paragraph 11(b) and 12(b)(ii) shall not apply.
4. Employment Duties. Employee shall serve the Employer as and in the
specific capacity of President, Chief Executive Officer and as a Director of the
Employer. Employee shall be in charge of and oversight of all operating
activities of the Employer and shall be responsible for general oversight and
management of the day to day operations of the Employer and such other duties as
may reasonably be required by the elected Board of Directors of JET (the
"Board"). Employee covenants and agrees to devote his full time and energies,
and his best efforts and business judgments exclusively to the business of the
Employer and to perform such duties to the best of his ability and to observe
all reasonable policies, rules and regulations as determined and imposed by the
Employer for operation of the Employer's business. The Employee shall report to
the Board, who shall direct, control and supervise the duties to be performed.
5. Vacation. Employee shall be entitled to two (2) weeks of vacation
time during each year of his employment, one week of which shall accrue every
six (6) months. Such vacation shall be with full pay and other benefits provided
hereunder. Vacation may be taken prior to accrual, but salary paid for any such
vacation not accrued will be returned by Employee at termination. The time of
vacation shall be selected in such manner as not to conflict with the Employer's
operations, and Employee's employment duties; however, Employer shall not
unreasonably constrain Employee's time of vacation. Employee shall give Employer
reasonable notice of his intended vacations. Up to one week of vacation may be
rolled-over to the following year if allotted vacation time was not used in the
previous year. In no event may Employee take more than two weeks of vacation in
a row. If allotted or rolled-over vacation is not fully used prior to
termination, Employee shall be compensated for such unused vacation.
6. Sick Leave. As determined by the Employer, the Employee shall be
entitled to a reasonable number of days of sick leave with full pay during each
calendar year.
7. Confidential Information. All records of the Employer which include,
but are not limited to, advertising, sales, other materials or articles of
information, including without limitation, data processing reports, computer
software and/or media containing Employer's confidential information, customer
lists, supplier lists, purchasing information, customer sales analysis and
patterns, invoices, price lists or information, samples, or any other materials
or data of any kind furnished to Employee
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by the Employer, acquired by Employee while employed by the Employer, or
developed by Employee on behalf of the Employer or at the Employer's direction
or for the Employer's use or otherwise in connection with Employee's employment
hereunder, are and shall remain the sole and confidential property of the
Employer. Employee acknowledges that such information is proprietary trade
secrets of Employer. All or any such materials and records shall hereinafter be
known as "Confidential Information." If the Employer requests the return of such
Confidential Information at any time during, at, or after the termination of
Employee's employment hereunder, Employee shall immediately deliver the same and
all copies or excerpts thereof to Employer.
8. Covenants During Employment. While employed by the Employer,
Employee agrees that he will not, without the written consent of the Board:
(a) Unless authorized to do so by the Board, make, draw, accept or
endorse any contract, lease, promissory note, or other instrument requiring the
payment of money by the Employer nor shall he use any money belonging to the
Employer or pledge its credit except in the usual and regular course of business
and exclusively on account, or for the benefit of the Employer;
(b) Release or discharge any debtor of the Employer without receiving
the full amount thereof;
(c) Make any statement or perform any act intended to advance an
interest of any existing or prospective competitor of the Employer in any way
that will or may reasonably be thought to injure an interest of the Employer in
its relationships and dealings with existing or potential customers or solicit
or encourage any other employee of the Employer to do any act that is intended
to be disloyal to the Employer or inconsistent with the Employer's best interest
or in violation of any provision of this Agreement;
(d) Compete in any manner directly or indirectly with the business of
the Company or in any field connected with aviation, aircraft, aircraft parts,
avionics or the like.
9. Nondisclosure. The Employee shall not, at any time during the term
of this Employment Agreement or at any time thereafter, except as may be
authorized by JET in writing disclose or make use of, directly or indirectly,
JET's customer list or supplier list or any other Confidential Information for
his own benefit, for the benefit of others engaged in the same business as JET
or for others who Employee believes or should reasonably believe might or could
enter into JET's business. Employee acknowledges the material adverse impact to
Employer due to any breach by Employee of these provisions, no matter how small,
and that any such breach shall cause him to forfeit any unpaid amounts set forth
in Paragraph 11(b)(ii) below.
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10. Non-Compete. a) In the event of termination of Employee's
employment with JET without cause or if Employee voluntarily leaves employment
and Employer elects to pay Employee Severance Pay under paragraph (12)(b) iii,
hereof , it is agreed that Employee will not, for a period of one year
thereafter, (the "Non-Compete Period") directly or indirectly, either as an
individual, employee, agent, partner, shareholder, owner or otherwise; (a) call
on, solicit or accept the Customers of JET (as defined below) for the purpose of
selling or the sale of those types of products which JET sold during the two
year period preceding Employee's termination, either for himself or for any
other person or competing business; or (b) call on, solicit or seek to purchase
supplies, materials or inventory for resale or use of the type purchased by JET
from the Vendors of JET (as defined below) or (c) be employed, consult for, or
in any way render services to any business engaged in the sale and or
distribution of the type of products which JET does or has sold or distributed
within the previous twelve month period and in any geographic area where JET
regularly does business at the time of Employee's termination from employment.
"Customers of JET" shall mean those persons or entities, including their
affiliates, parents, subsidiaries franchisers or franchisees, wherever located
in the world who purchased any of JET's products within the twelve month period
preceding Employee's termination, upon whom Employee called, with whom Employee
became acquainted, or whose name Employee learned during his employment with
JET. "Vendors of JET" shall mean those person or entities including their
affiliates, parents, subsidiaries, franchisers or franchisees, who sold raw or
finished goods or supplies to JET within the twelve month period preceding
Employee's termination, upon whom Employee called, with whom Employee became
acquainted, or whose name Employee learned during his employment with JET.
11. Compensation.
(a) Basic Compensation In each year of Employee's Term of Employment:
Employee shall receive as basic compensation ("Basic Compensation") for all
services rendered by the Employee hereunder, an annual salary during each
Employment Year, or prorated for a partial Employment Year of $160,000, payable
in accordance with the customary payroll practices of Employer, but in no event
less frequently than semi-monthly.
At the end of each Employment Year, Employee and Employer shall
negotiate in good faith any increase in Basic Compensation as may be appropriate
for the next Employment Year.
(b) Bonuses: In addition to the amounts paid to Employee pursuant to
(a) above, if Employee is still employed by Employer on October 31, 1997, and at
the end of each fiscal year thereafter, Employee shall be entitled to a cash
bonus based upon the Employer's results of operations for the fiscal year ending
October 31, 1997 and each fiscal year thereafter that Employee is still employed
hereunder, on the following terms and conditions:
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Employee shall be entitled to a bonus of 3% of the Pre Tax Net Income
of Employer, for such fiscal year.
"Pre-Tax Net Income of Employer" shall be defined as net income of
Employer determined under generally accepted accounting principles,
consistently applied, after deducting Employee's compensation,
including this bonus.
Employee agrees that one-half of the bonus amount in excess of $25,000
annually earned by Employee shall be applied to reduce the outstanding
balance of Employee's obligation under his promissory note given
pursuant to paragraph 11(c) below.
(c) Upon execution hereof, the Company will honor Employee's
subscription for 192,000 shares of the Company's Common Stock. The Company will
issue such shares upon delivery to the Company of Employee's promissory note in
the principal amount of $80,000 payable together with accrued interest at the
Applicable Federal Rate for demand obligations in effect at the date this
Employment Agreement is executed, as determined by the Internal Revenue Service,
per annum, upon demand.
(d) Health Insurance and Benefits: During the Term, Employer shall pay
for Employee's health insurance coverage under the Employer's group health
insurance plan in effect for the employees of the Company and such other
benefits as are commensurate with executives in Employee's position.
(e) Employee shall be granted options to purchase 30,000 shares of the
Common Stock of the Company under the stock option plan of the Company duly
adopted by the Board. Such options shall vest 10,000 shares per year commencing
one year from the date hereof in accordance with said stock option plan.
(d) Deductions from Compensation: Any amounts payable to Employee
hereunder shall be subject to reduction and withholding for Social Security,
withholding taxes, and any other such taxes or deductions as may from time to
time be required to be withheld by Employer pursuant to applicable governmental
authority.
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12. Termination.
(a) General:
This Agreement shall terminate upon the Employee's termination of
employment, but the terms of the paragraphs herein which contemplate acts, the
restraint of acts, or payments after the termination or expiration hereof, and
the representations and warranties made herein, shall survive the termination of
this Employment Agreement for any reason. Employee's employment hereunder shall
be terminated upon the happening of any of the following events:
(1) the death of the Employee;
(2) the permanent disability of the Employee, as more fully
discussed in Article 13 hereof;
(3) upon the expiration of the Term of this Employment
Agreement according to its terms; (4) for cause; for these purposes, "cause"
shall include:
(i) the conviction of Employee of a crime involving
moral turpitude;
(ii) an act of dishonesty either involving
Employee's employment or harmful to Employer
or other employees, including fraud,
misappropriation, embezzlement or the like;
(iii) the misfeasance, malfeasance or non-feasance
of Employee in carrying out the duties of
Employee's employment with Employer, not
cured within thirty (30) days prior notice.
(b) Payments Upon Termination:
i. Death or Disability. Upon termination of Employee's
employment hereunder at the end of the Term or because of the death or permanent
disability of Employee, Employee or in the event of his death or his mental
incapacity his personal representative, shall be paid his Basic Compensation
hereunder, prorated through the date of termination. In addition if termination
of this Agreement is due to the death of the Employee, his estate shall be
entitled to the payment of the Employee's Basic Compensation for sixty (60) days
after the date of Employee's death.
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ii. Termination For Cause or Voluntary Leaving. Upon
termination of Employee's employment hereunder for cause or voluntary leaving,
as compensation for services rendered during the term of this Agreement to the
date of termination, Employee shall be paid his Basic Compensation hereunder
prorated through the date of termination, and no other amounts hereunder. Any
amounts which have been prepaid will be returned by Employee or his personal
representative.
iii. Dismissal. Upon termination of Employee's employment
hereunder, for reasons not for cause, death, permanent disability, his voluntary
leaving or the expiration of the Term hereof, such reasons to include, without
limitation, the dismissal of the Employee by Employer for reasons not for cause,
or the dissolution of the Employer, Employee shall be entitled to receive his
Basic Compensation for twelve (12) months payable no less often than
semi-monthly following Termination of Employee's employment under this
Employment Agreement immediately above, ("Severance") and such amounts as he may
be entitled to as are set forth in paragraph 11 prorated, annualized and
calculated through the date of Termination. If Employee voluntarily leaves, at
Employer's election it may pay Employee Severance Pay for so long as Employee
does not compete with Employer under the terms of Paragraph 10 hereof. These
payments shall cease however should Employee breach the provisions of paragraphs
7, 9 or 10 hereof, in addition to the other remedies therefor of Employer
hereunder.
13. Disability.
(a) In the event that Employee incurs a disability of either a
physical or mental character which, in the opinion of a physician selected by
the Employer, which physician shall be approved by Employee (which approval
shall not be unreasonably withheld), renders him disabled from performing the
usual and customary duties to be rendered hereunder or heretofore rendered by
Employee, he shall receive his full Basic Compensation for the first ninety (90)
days or any part thereof of continuous disability.
(b) No disability shall be deemed to exist until after
Employee shall be unable to perform his duties for thirty (30) consecutive days;
but after such disability continues for thirty (30) consecutive days, then the
same shall be deemed to have existed from the first day of such disability.
(c) If the Employee does not recover and resume his duties
within ninety days from the date he is deemed to have become disabled, Employee
may, unless the physician selected in paragraph 11(a) above certifies that
Employee is again capable of performing his usual and customary duties with or
without reasonable accommodation, at the election of the Board of Directors, be
deemed to have become permanently disabled at the beginning of such disability.
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(d)(i) If Employee shall have been disabled and shall have
returned to work after the end of such disability, any recurrence of the same
disability commencing within one hundred eighty (180) days of the termination of
the prior period of disability shall be deemed to be a continuation of the prior
disability, and the periods of all such disabilities shall be added together to
determine the rights of the parties hereunder.
(ii) If Employee shall have been disabled and shall have
returned to work after the end of such disability, any new and unrelated
disability occurring thereafter shall be treated as if the previous and
unrelated disability had not occurred.
(e) Services During Disability: During the period that
Employee shall be entitled to receive payments under this Article, and to the
extent that he is physically and mentally able to do so, he shall furnish
information and assistance to the Employer and comply with the provisions
hereof; and, in addition, upon reasonable request in writing on behalf of the
President he shall make himself available to the Employer to undertake
reasonable assignments consistent with the dignity, importance and scope of his
prior position and his physical and mental health.
14. Reformation. If elements of the agreements set forth in the above
paragraphs would otherwise be determined to be invalid or unenforceable by a
court of competent jurisdiction, the parties intend and agree that such court
shall exercise its discretion in reforming the elements of this Agreement to the
end that Employer and Employee shall be subject to an employment agreement, a
nondisclosure covenant and related covenants as close as possible to the terms
in the paragraphs above and which are enforceable by Employer or Employee.
15. Essence. Employee agrees that the covenants and agreements
contained herein are the essence of this Agreement and that such covenants and
agreements are reasonable and necessary to protect and preserve the interests
and properties of Employer and Employee; that irreparable loss and damage will
be suffered by Employer should Employee breach any of such covenants and
agreements; that each of such covenants and agreements is separate, distinct and
severable, not only from the other of such covenants and agreements but also
from the other and remaining provisions of this agreement; that the
enforceability of any such covenant or agreement shall not affect the validity
or enforceability of any other such covenants or agreements or provisions of
this Agreement and that the covenants and agreement shall be fully enforceable
irrespective of how long Employee has been in the employment of Employer.
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16. Remedies.
(a) Employee agrees and understands that Employer has acted in reliance
on the provisions of this Agreement in employing Employee and would not continue
to employ Employee if Employee did not execute this Agreement.
(b) In the event that Employee shall breach any or all of the covenants
and agreements set forth in paragraph 9 or 10 subsequent to the termination of
his employment, Employee agrees that the running of the period of restrictions
set forth in paragraphs 9 or 10 shall be tolled during the continuation(s) of
any such breach or breaches by the Employee and the running of the period of
such restrictions shall commence or commence again only upon compliance by the
Employee with the terms of the applicable paragraphs breached.
(c) Employee agrees that in the event he shall breach any of the above
covenants and agreements, damage to Employer shall be presumed in any legal
action by Employer against Employee for damages. Employer shall be entitled to
collect actual damages caused by Employee's breach of any of the covenants and
agreements. In addition to the above remedy and other remedies available to it,
Employer shall be entitled to both permanent and temporary injunctions, without
the posting of a bond and without the need to prove irreparable harm, to prevent
a breach or contemplated breach by Employee of any of the above covenants or
agreements.
18. Miscellaneous.
(a) Binding Agreement: All the terms, covenants, representations,
warranties and conditions of this Agreement shall be binding upon and inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors, heirs at law, legatees, distributees, executors, administrators and
other legal representatives.
(b) Waiver: No term or condition of this Agreement shall be deemed to
have been waived nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition for the future or as to any
act other than that specifically waived.
(d) Severability: If, for any reason, any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held to be invalid, and each such other provision shall to the
full extent consistent with law continue in full force and effect.
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(e) Notices: All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, given by prepaid
telegraph or mailed first class, postage prepaid, registered or certified mail,
return receipt requested, to Employer or Employee at their respective addresses
set forth in this Agreement or to any other address of which notice of the
change is given to the parties hereto.
(f) Governing Law. The construction, interpretation, validity and
performance of this Employment Agreement shall be governed by the laws of the
State of Florida. The parties agree that venue for any action shall be in Dade
County, Florida.
(g) Entire Agreement. This instrument contains the entire agreement
between the parties hereto with respect to the subject matter hereof and no
prior or collateral promises or conditions in connection with or with respect to
the subject matter hereof not incorporated herein shall be binding upon the
parties hereto.
(h) Modification. No modification, extension, renewal, rescission,
termination or waiver of any of the provisions contained herein or any future
representation, promise or condition in connection with the subject matter
hereof, shall be binding upon any of the parties unless made in writing and duly
executed by the parties or their authorized representative.
(i) Headings. The section and paragraph headings contained in this
Employment Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this document.
(j) Attorney's Fees and Expenses. Employer and Employee agree that, if
either party has to employ an attorney to enforce this Agreement, the
non-prevailing party shall pay reasonable costs, expenses, attorney's fees and
paralegal fees through and including any appeals, settlement or negotiations
required to enforce this Employment Agreement incurred by the prevailing party.
(k) Material Inducement. Employer and Employee agree and understand
that both parties hereto have acted in reliance on this Employment Agreement in
executing this Agreement and the covenants contained herein are a material
inducement for both parties hereto to do so.
(l) Survival. The terms of the paragraphs herein which contemplate
acts, the restraint of acts, or payments after the termination or expiration
hereof and the representations and warranties made herein shall survive the
termination of this Agreement or Employee's employment hereunder for any reason.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers hereunto duly
authorized, and Employee has signed this Agreement all as of the day and year
first above written.
EMPLOYER
Attest: JET AVIATION TRADING, INC.
By: /s/ Marion N. Kolinatis By: /s/ Allen Beni
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its Secretary
Title: V.P. Allen Beni
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(Corporate Seal)
Witnesses:
/s/ Allen Beni /s/ Joseph Nelson
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Allen Beni JOSEPH NELSON
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