EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the 5th day of May, 2010 by and between Twin Air Calypso Limited, Inc. a Florida
corporation (referred to hereinafter as "Employer"), and Clayton I. Gamber
(referred to hereinafter as "Employee").
RECITALS:
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer; and
WHEREAS, Employer and Employee desire to set forth the terms and conditions
of Employee's employment with Employer;
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by each of
Employer and Employee, each of Employer and Employee hereby agrees as follows:
1. Employment. Employer hereby employs Employee, and Employee hereby
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accepts such employment, subject in both cases to the terms, provisions and
conditions hereinafter stated. Employer agrees to provide Employee with all
initial specialized training necessary for Employee to perform Employee's duties
hereunder. Moreover, Employer agrees to provide Employee with all Confidential
Information (as defined hereinafter) necessary for Employee to perform such
duties.
2. Title of Employee. Employee shall have the title of President of Twin
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Air Calypso Limited, Inc.
3. Duties of Employee. Employee shall have such duties as are consistent
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with the titles indicated in Section 2 above.
4. Time Devoted and Exclusivity. Employee shall devote all of Employee's
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business time and attention to performing Employee's duties hereunder. During
the term of this Agreement, Employee agrees to work exclusively for Employer and
to provide the type of services for which Employer is employing Employee to no
person other than Employer.
5. Standard of Performance. In providing Employee's duties hereunder,
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Employee shall use reasonable, and Employee's best, efforts, and shall perform
such duties in a competent, professional and good workman-like manner of the
highest caliber.
6. Compensation and Benefits.
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(a) As compensation for services rendered hereunder, Employee shall be
paid a weekly salary of $1,250. Such salary shall be paid in accordance with
Employer's payroll policies in effect from time to time.
(b) Employee shall be entitled to participate in all plans that
Employer establishes for the benefit of its employees; provided, however,
Employee shall be entitled to participate in such plans only at the time
Employee meets the eligibility criteria established for the plan and shall
receive benefits there under based on the terms of the plan. Employee's
eligibility and benefit level shall be determined separately for each plan, and
all determinations shall be made by the parties charged with responsibility for
such determinations in the plan. Employer is under no obligation to establish
any plan or plans to provide benefits for its employees, and this Section 7(d)
shall not be interpreted to require the establishment of any benefit plan. The
terms of any benefit plans existing, established, or provided hereafter do not
constitute a part of this Agreement and are not incorporated herein for any
purpose. Without any limitation on the preceding, Employee shall be entitled to
the following benefits:
(i) Employer shall provide Employee with medical insurance appropriate for
Employee's position and stature, to the extent available and to the extent that
Employer does not maintain medical insurance generally; and
(ii) Employee shall be entitled to four vacation weeks in each calendar
year, subject to and on a basis consistent with Employer's policy.
7. Expense Reimbursement. Employer shall reimburse Employee, from time
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to time, for all business expenses with respect to which Employer has given
prior written authorization for Employee to incur. To the extent that Employer
has given general prior written authorization for Employee to incur expenses but
has not given the specifics pertaining thereto, then in order for Employee to be
reimbursed for such expenses, such expenses shall be actual, reasonable and
necessary business expenses incurred by Employee on behalf of Employer, and
Employee must present to Employer documentary evidence, such as a receipt or a
paid bill, that states sufficient information to establish the amount, date,
place, and the essential character of the expenditure for each such expenditure.
No expenditure will be reimbursed pursuant hereto unless the expense is verified
as provided above and approved by the President of Employer or such person
designated by the President of Employer.
8. Term. Subject to Section 9 below, the term of this Agreement shall
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begin on the date hereof and shall continue for the period of five years
hereafter.
9. Termination.
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(a) For Cause. Employer may, at its election, terminate Employee's
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employment at any time for just cause, which shall include, without any
limitations thereon, the following: (i) Employee shall have failed or refused
to faithfully, diligently and competently perform the duties assigned to
Employee under this Agreement or otherwise to have breached any term or
provision contained herein; (ii) Employee shall be disabled or otherwise unable
for whatever reason to fully perform Employee's duties hereunder for 60
consecutive days or for more than 120 days in any twelve-month period; (iii)
Employee shall be guilty of fraud, dishonesty, or similar acts of misconduct; or
(iv) Employee shall be finally convicted of a felony or a misdemeanor involving
moral turpitude. At any time after the occurrence of an event permitting
Employer to terminate Employee's employment pursuant to this Section 9(a),
Employer may elect for termination of Employee's employment by notifying
Employee as to Employer's election to terminate, and thereupon Employee's
employment with Employer will terminate on the date specified in the notice or
(if no date is specified) upon the delivery of the notice. Notwithstanding the
preceding, upon any event permitting Employer to terminate Employee's employment
pursuant to this Section 9(a) and in lieu of terminating Employee's employment,
Employer may, with or without notice to Employee, suspend the performance of
Employer's obligations under this Agreement (including, without limitation,
Employer's obligations under Section 6), and while such an event has occurred
and has not been cured, (x) Employer shall not be obligated to fulfill, but
shall be relieved of, Employer's obligations under this Agreement (including,
without limitation, Employer's obligations under Section 6), (y) such
obligations shall not accrue, and (z) Employee shall forfeit all rights and
remedies with respect thereto. Notwithstanding anything else contained herein,
if Employer suspends any of its obligations to Employee pursuant to the
preceding sentence, Employer may thereafter elect to terminate Employee's
employment in accordance with the other provisions of this Section 9(a).
(b) Automatic. The term of this Agreement shall automatically
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terminate upon Employee's death.
(c) Effect. Upon termination of this Agreement, all rights and
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obligations under this Agreement shall cease except for the rights and
obligations under Section 10, 11, 12, 13 and 14 of this Agreement and the rights
and obligations under Section 6 of this Agreement to the extent Employee had not
been compensated for services performed prior to termination (Employee's salary
to be pro rated for the portion of the pay period prior to termination).
10. Non-competition Agreement.
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(a) Agreement. In consideration of and ancillary to Employer's
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agreement to provide initial specialized training to Employee contained in
Section 1 above, for a period of one year after the expiration of this Agreement
or the termination of this Agreement by Employer with just cause or Employee
voluntarily (the "Restricted Period"), Employee shall not, directly or
indirectly, acting alone or as a member of a partnership, or as an officer,
director, shareholder, employee, consultant, or representative of any
corporation or in any other capacity with any other business entity: (i) engage
within the state of Florida (the "Restricted Area") in the non-scheduled charter
airline business or the aircraft maintenance business (the "Restricted
Businesses"); (ii) solicit, deal, negotiate, enter into an arrangement or
contract, or attempt to do any of the foregoing, in any manner with respect to
either of the Restricted Businesses in the Restricted Area with respect to any
person that was a customer of Employer at any time during the two-year period
prior to the date of expiration or termination, or attempt to cause any such
person to not continue the business relationship that it has with Employer; or
(iii) induce or attempt to influence, directly or indirectly, any person
employed by or under contract with Employer at the date of expiration or
termination, to terminate his or her employment or contractual relationship with
Employer.
(b) Permitted Exception. Notwithstanding the foregoing provisions of
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this section, Employee shall be permitted to own up to five percent of the
publicly traded securities, registered under Section 12 or 15(d) of the
Securities Exchange Act of 1934, of any competitor of Employer.
(c) Reasonableness. Employee hereby specifically acknowledges and
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agrees that the temporal and other restrictions contained in this section are
reasonable and necessary to protect the business of Employer, and that the
enforcement of the provisions of this section will not work an undue hardship on
Employee.
(d) Reformation. Employee further agrees that in the event either
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the length of time or any other restriction, or portion thereof, set forth in
Section 10(a) above is held to be overly restrictive and unenforceable in any
court proceeding, the court may reduce or modify such restrictions to those
which it deems reasonable and enforceable under the circumstances and the
parties agree that the restrictions of Section 10(a) will remain in full force
and effect as reduced or modified.
(e) Injunctive Relief. Employee further agrees and acknowledges that
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Employer does not have an adequate remedy at law for the breach or threatened
breach by Employee of the covenants contained in this Section and Employee
therefore specifically agrees that Employer, in addition to other remedies which
may be available to it hereunder, may file a suit in equity to enjoin Employee
from such breach or threatened breach.
(f) Severability. Employee further agrees, in the event that any
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provision of Section 10(a) is held to be invalid or against public policy, the
remaining provisions of Section 10(a) and the remainder of this Agreement shall
not be affected thereby.
11. Confidentiality.
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(a) "Confidential Information" means and refers to information and
materials belonging to Employer that are not generally known outside Employer,
including, without limitation, customers and customer lists, pricing policies,
operational procedures, sources of supply, methods, formulae, processes,
software programs, hardware configurations, know-how, computer programs and
access codes, technological information, information relating to the cost of its
products and services, marketing strategies, financial statements and
projections, and any other information which bears a logical relationship to the
Confidential Information described above such that Employee knows or should
logically conclude that Employer regards the information to be Confidential
Information. Confidential Information shall not include any knowledge or
information that Employee already knows as of the date of this Agreement, that
is already known to the general public as of the date of this Agreement or that
becomes known to the general public after the date of this Agreement through no
breach of Employee's confidentiality obligations.
(b) Employee hereby recognizes and acknowledges that Employee may
receive information from, or may develop information on the behalf of, Employer
Confidential Information. In consideration of and ancillary to Employer's
agreement to provide Confidential Information to Employee contained in Section 1
above, Employee hereby agrees to maintain on a confidential basis all
Confidential Information, and Employee agrees that Employee shall not, without
the prior express written consent of Employer, use for Employee's or anyone
else's benefit or disclose to any other person any Confidential Information,
except in connection with Employee's work on behalf of Employer. Employee
hereby acknowledges that, as between Employer and Employee, Employer has the
complete, sole and full right, title and interest in and to the Confidential
Information, and that Employee has no rights, expressed or implied, with respect
to the foregoing other than those expressly provided for to the contrary in a
writing signed by both Employer and Employee. Employee further agrees that
Employee shall, immediately upon Employer's request, return to Employer all
written Confidential Information and all writings regarding oral Confidential
Information whether such writings were authorized or not. Employee hereby
agrees that the confidentiality agreement provided for hereby shall last with
respect to any Confidential Information for five years after such Confidential
Information is disclosed by Employer to Employee or developed by Employee on
behalf of Employer, as the case may be.
12. Property of Employer. Employee agrees that, upon the expiration or
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termination of Employee's employment with Employer, Employee will immediately
surrender to Employer all property, equipment, funds, lists, books, records, and
other materials of Employer or any affiliate thereof in the possession of or
provided to Employee.
13. Law Governing. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF
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FLORIDA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF FLORIDA.
14. Notices. Any notice or request herein required or permitted to be
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given to any party hereunder shall be given in writing and shall be personally
delivered or sent to such party by prepaid mail at the address set forth below
the signature of such party hereto or at such other address as such party may
designate by written communication to the other party to this Agreement. Each
notice given in accordance with this paragraph shall be deemed to have been
given, if personally delivered, on the date personally delivered, or, if mailed,
on the third day following the day on which it is deposited in the United States
mail, certified or registered mail, return receipt requested, with postage
prepaid.
15. Headings. The headings of the paragraphs of this Agreement have been
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inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
16. Severability. If any provision of this Agreement is held to be
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illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
17. Entire Agreement. This Agreement embodies the entire agreement and
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understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written or
oral, relating to the subject matter hereof.
18. Binding Effect. This Agreement shall be binding upon and shall inure
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to the benefit of each party hereto and his, her or its respective successors,
heirs, assign, and legal representatives, but neither this Agreement nor any
rights hereunder may be assigned by any party hereto without the consent in
writing of the other party.
19. Remedies. No remedy conferred by any of the specific provisions of
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this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise. The election of any one or more remedies by any party hereto
shall not constitute a waiver of the right to pursue other available remedies.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of the
first date written above.
"EMPLOYER" "EMPLOYEE"
TWIN AIR CALYPSO LIMITED, INC.
By:_________________________________
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Clayton I. Gamber
Name: Russell Ivy
Address:_____________________________
Title: Vice President
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Address: 3406 S.W. 9th Avenue
Fort Lauderdale, FL 33315
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