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EXHIBIT 10.13
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made the 3rd day of October 1997, between JET
AVIATION TRADING, INC., a Florida corporation, with offices at 15675 N.W. 15th
Avenue, Miami, FL 33169, (hereinafter referred to as the "Corporation") and
ALLEN BENI, whose address is ________________________ (hereinafter referred to
as "Consultant").
WITNESSETH:
WHEREAS, the Corporation is desirous of engaging the services of the
Consultant in the capacity hereinafter stated, and the Consultant is desirous of
serving the Corporation in such capacity for the period and on the terms and
conditions as set forth herein; and
WHEREAS, the services of the Consultant are unique, extraordinary and
not readily replaceable due to his particular expertise and knowledge;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto do hereby agree as follows:
1. SERVICES AND DUTIES
(a) The Corporation hereby engages the Consultant to
provide the services set forth below (the "Consulting Services") to the
Corporation and its customers and the Consultant accepts such engagement and
agrees to provide to the Corporation the rendition of the Consulting Services,
faithfully and to the best of his ability. The Consultant shall render advice to
the Corporation regarding purchasing and selling opportunities and techniques
and his insight into customers and their needs and buying habits. Consultant
shall further render such other services as may be requested of him by the
President of the Corporation from time to time.
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2. TERM OF ENGAGEMENT
(1) The term of the Consultant's engagement hereunder shall
become effective on October 3, 1997, and shall end on October 2, 1998. Each
twelve month period of the engagement commencing October 3, 1997, shall be
called an "Engagement Year". The engagement may be renewed upon similar terms by
the mutual agreement of the parties.
3. ConfiDENTIAL INFORMATION. All records of the Corporation 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 Corporation'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 Consultant by the Corporation,
acquired by Consultant while engaged by the Corporation, or developed by
Consultant on behalf of the Corporation or at the Corporation's direction or for
the Corporation's use or otherwise in connection with Consultant's engagement
hereunder, are and shall remain the sole and confidential property of the
Corporation. Consultant acknowledges that such information is proprietary trade
secrets of Corporation. All or any such materials and records shall hereinafter
be known as "Confidential Information." If the Corporation requests the return
of such Confidential Information at any time during, at, or after the
termination of Consultant's engagement hereunder, Consultant shall immediately
deliver the same and all copies or excerpts thereof to Corporation.
4. COVENANTS DURING ENGAGEMENT. While engaged by the Corporation,
Consultant 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
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Corporation nor shall he use any money belonging to the Corporation or pledge
its credit except in the usual and regular course of business and exclusively on
account, or for the benefit of the Corporation;
(b) Release or discharge any debtor of the Corporation 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 Corporation in any way
that will or may reasonably be thought to injure an interest of the Corporation
in its relationships and dealings with existing or potential customers or
solicit or encourage any other Consultant of the Corporation to do any act that
is intended to be disloyal to the Corporation or inconsistent with the
Corporation'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 Corporation or in any field connected with aviation, aircraft parts,
avionics or the like.
5. NONDISCLOSURE. The Consultant shall not, at any time during the term
of this Employment Agreement or at any time thereafter, except as may be
authorized by the Corporation in writing disclose or make use of, directly or
indirectly, the Corporation'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 the Corporation or for others who Consultant believes or
should reasonably believe might or could enter into the Corporation's business.
Consultant acknowledges the material adverse impact to Corporation due to any
breach by Consultant of these provisions, no matter how small, and that any such
breach shall cause him to forfeit any unpaid amounts set forth in Paragraph 6
below.
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6. COMPENSATION.
(a) Basic Compensation In each year of Consultant's Term of Engagement:
Consultant shall receive as basic compensation ("Basic Compensation") for all
services rendered by the Consultant hereunder, a monthly payment of $4,000.
(b) Commission: In addition to the amounts paid to Consultant pursuant
to (a) above, Consultant shall be paid a commission equal to 15% of the
collected purchase price of sales made as a direct result of Consultant's
efforts and a commission of 15% of the purchase price of purchases of material
for resale made by Corporation located or negotiated by Consultant on
Corporation's behalf. Such commission shall be payable, in the case of sales,
thirty days after the Corporation has collected the purchase price due from its
customers, and in the case of purchased materials, thirty days after closure of
the purchase, delivery and receipt of all required material certification
records.
(c) Deductions from Compensation: Any amounts payable to Consultant
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 Corporation pursuant to applicable
governmental authority.
7. Termination.
(a) General:
This Agreement shall terminate upon the termination of Consultant's
engagement, 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 Consulting Agreement for any reason. Consultant's engagement hereunder
shall be terminated upon the happening of any of the following events:
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(1) the death of the Consultant;
(2) the permanent disability of the Consultant, as more
fully discussed in Article 8 hereof;
(3) upon the expiration of the Term of this Consulting
Agreement according to its terms;
(4) for "cause"; for these purposes, "cause" shall
include:
(i) the conviction of Consultant a crime
involving moral turpitude;
(ii) an act of dishonesty either involving
Consultant's engagement or harmful to
Corporation or other consultants or
employees of Corporation, including fraud,
misappropriation, embezzlement or the like;
(iii) the misfeasance, malfeasance or non-feasance
of Consultant in carrying out the duties of
Consultant's engagement with Corporation,
not cured within thirty (30) days written
notice.
(b) Payments Upon Termination:
i. Death or Disability. Upon termination of Consultant's
engagement hereunder at the end of the Tenn or because of the death or permanent
disability of Consultant, Consultant 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 as well as any earned
commission. In addition if termination of this Agreement is due to the death of
the Consultant, his estate shall be entitled to the payment
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of the Consultant's Basic Compensation for sixty (60) days after the date of
Consultant's death.
ii. Termination For Cause or Voluntary Leaving. Upon
termination of Consultant's engagement hereunder for cause or voluntary leaving,
as compensation for services rendered during the term of this Agreement to the
date of termination, Consultant shall be paid his Basic Compensation hereunder
prorated through the date of termination and any earned commissions and no other
amounts hereunder. Any amounts which have been prepaid will be returned by
Consultant or his personal representative.
iii. Cancellation of Engagement. Upon termination of
Consultant's engagement 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 cancellation of consultant
engagement by the Corporation for reasons not for cause, or the dissolution of
the Corporation, Consultant shall be entitled to receive his Basic Compensation
accrued to date and any commission earned.
8. DISABILITY.
(a) In the event that Consultant incurs a disability of either
a physical or mental character which, in the opinion of a physician selected by
the Corporation, which physician shall be approved by Consultant (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
Consultant, 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
Consultant shall be unable to perform his duties for thirty (30) consecutive
days, but after such disability
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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 Consultant does not recover and resume his duties within
ninety days from the date he is deemed to have become disabled, Consultant may,
unless the physician selected in paragraph 8(a) above certifies that Consultant
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.
(d)(i) If Consultant shall have been disabled and shall have returned
to his engagement 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 Consultant shall have been disabled and shall have returned to
his engagement 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 Consultant 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 Corporation 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 Corporation to undertake reasonable assignments
consistent with the dignity, importance and scope of his prior engagement and
his physical and mental health.
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9. 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 Corporation and Consultant shall be subject to a consulting agreement,
a covenant not to compete, a nondisclosure covenant and related covenants as
close as possible to the terms in the paragraphs above and which are enforceable
by Corporation or Consultant.
10. Essence. Consultant agrees that the covenant 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 Corporation and Consultant; that irreparable loss and damage
will be suffered by Corporation should Consultant 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 Consultant has been engaged by the Corporation.
11. Remedies.
(a) Consultant agrees and understands that Corporation has acted in
reliance on the provisions of this Agreement in engaging Consultant and would
not continue to engage Consultant if Consultant did not execute this Agreement.
(b) Consultant agrees that in the event he shall breach any of the
above covenants and agreements, damage to Corporation shall be presumed in any
legal action by
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Corporation against Consultant for damages. Corporation shall be entitled to
collect actual damages caused by Consultant's breach of any of the covenants and
agreements. In addition to the above remedy and other remedies available to it,
Corporation 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 Consultant of any of the above
covenants or agreements. Consultant hereby waives any claims he might make that
any competition by Consultant with Corporation in derogation of this agreement:
1) would be justified in any manner and 2) would not cause irreparable harm to
Corporation or that the restrictions on competition hereunder would be an
improper restraint of trade. Consultant acknowledges that he is fully capable of
earning a living upon termination of his engagement with Corporation, without
competing in any manner with the business of Corporation.
12. Miscellaneous.
(a) Binding A agreement: All the forms, 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 tenn or condition for the future or as to any
act other than that specifically waived.
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(d) Severability: If, for any reason, any provision of this Agreement
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.
(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 Corporation or Consultant 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 Engagement 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.
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(i) Headings. The section and paragraph headings contained in this
Consulting 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. Corporation and Consultant 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 Consulting Agreement incurred by the prevailing party.
(k) Material Inducement. Corporation and Consultant agree and
understand that both parties hereto have acted in reliance on this Consulting
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 Consultant's engagement hereunder for any
reason.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers hereunto duly
authorized, and Consultant has signed this Agreement all as of the day and year
first above written.
Corporation
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Attest: JET AVIATION TRADING, INC.
By: /s/ By: /s/
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its Secretary
Title: President & CEO
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(Corporate Seal)
Witnesses:
/s/ Cynthia S. Taylor /s/ Allen Beni
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Allen Beni
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