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Exhibit 10.4
THE AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement ("Restated
Agreement") is made and effective this ____ day of December, 1996, between
AVTEAM, INC., a Florida corporation ("Company"), and XXXXXX X. XXXX
("Employee").
Recitals
The Company and Employee entered into an Employment Agreement dated
January 1, 1994 (the "Graw Agreement"), which was subsequently amended
effective January 1, 1996 by Amendment No. 1 thereto and by Amendments No. 2
and No. 3 thereto dated as of April 12, 1996. The Company and Employee now
wish to amend and restate the employment relationship between the Company and
Employee by terminating the Graw Agreement and Amendments Xx. 0, Xx. 0 and No.
3 thereto, and replacing the same with the terms and conditions set forth below
as of the date first written above.
Agreements
In consideration of the mutual covenants contained herein, and for
other good and valuable consideration, receipt of which is acknowledged by the
parties, the Company and Employee agree as follows:
1. Termination of Graw Agreement and Amendments Xx. 0,
Xx. 0 and No. 3: The Graw Agreement and Amendments Xx. 0, Xx. 0 and No. 3
thereto are hereby terminated in their entirety without any further liability
to either party, except with respect to any provisions thereof which expressly
survive termination.
2. Term of Employment: The Company employs Employee and
Employee accepts employment with the Company for a period of three years
beginning on the Effective Date of this Restated Agreement as set forth above
("Initial Employment Term"). This Restated Agreement shall be renewed
automatically for an additional one-year period on the third anniversary date
and on each subsequent one-year anniversary date unless the Company's Board of
Directors notifies Employee in writing or Employee notifies the Company's Board
of Directors in writing that such renewal shall not take place. Said notice
shall be given not less than ninety (90) days prior to any such anniversary
date.
In the event of any extension of this Restated Agreement for
one or more consecutive one (1) year terms, the terms of this Restated
Agreement shall be deemed to continue in effect for the term of such extension
("Extended Employment Term"). The Initial Employment Term and the Extended
Employment Term will be collectively referred to as the "Employment Term,"
unless otherwise specified by the Company's Board of Directors. Any Extended
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Employment Term must be in writing, signed by the Chairman of the Board of
Directors of the Company.
3. Duties of Employee: Employee shall serve as
the President of the Company throughout the Employment Term. In his capacity
as President, Employee shall be the chief executive officer of the Company,
shall preside at all meetings of the shareholders and the Board of Directors
(if he shall be a member of the board), shall have general and active
management of the business and affairs of the Company and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
4. Exclusive Services: Employee's services
shall be exclusive to the Company, and Employee shall devote such portion of
his productive time and attention to the business of the Company as shall be
reasonably necessary to carry out his duties during the Employment Term.
Employee shall not engage in any other businesses, duties, or pursuits
whatsoever, or directly or indirectly render any services of a business,
commercial, or professional nature to any other person or organization, whether
for compensation or otherwise, unless such activity is fully disclosed to the
Company and approved by the Company's Board of Directors. This Restated
Agreement shall not be interpreted to prohibit Employee from making passive
personal investments or conducting private business affairs if such activities
do not materially interfere with the services required under this Restated
Agreement.
5. Non-Competition:
To induce the Company to enter into this Restated Agreement, Employee agrees
that:
A. Defined Terms: The principal business of the
Company is valued-added reselling of aftermarket jet engines, jet
engine components and new and used aircraft material to other
suppliers of aftermarket engines and components, aircraft engine and
component manufacturers and their affiliates, overhaul facilities,
international and regional air carriers and operators, and leasing
companies (the "Business"). The region serviced by the Company is a
geographic area which currently includes the United States of America
(the "Region"). Employee's employment with the Company will bring
Employee into close contact with the members and other customers of
the Company and with the trade secrets and other confidential affairs
of the Company. The Company has a significant interest in protecting
its proprietary interest in, and the good will associated with, the
foregoing. As used in this Section 5, the term "Restricted Period"
means the period of three years following termination of Employee's
employment with the Company (whether for cause, upon expiration of the
employment period or otherwise).
B. Period of Employment: During the term of
Employee's employment hereunder, Employee shall not, directly or
indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in
any
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other individual or representative capacity, engage or
participate in or acquire, hold, or retain any interest in any
business which is competitive with the Business of the Company in any
location, or any business selling to or doing business with the
Company, unless such participation or interest is fully disclosed to
the Company and approved by a majority of the Company's Board of
Directors. The foregoing notwithstanding, Employee may acquire, hold
or retain equity ownership of any publicly held company, provided that
such equity ownership does not exceed five percent (5%) of the issued
and outstanding shares of the voting stock of such company.
C. Restricted Period: During the Restricted
Period, unless the Company and Employee shall otherwise agree in
writing, Employee shall not, (i) compete directly with the Company in
the Region; (ii) enter into the employ of, or render any services to,
as an independent contractor or otherwise, any person or entity
engaged in the Business (or any aspect thereof) in competition with
the Company in the Region; (iii) become interested, as an individual,
partner, co-venturer, shareholder, officer, director, employee,
principal, agent, trustee or in any other relationship or capacity, in
any person or entity engaged in the Business (or any aspect thereof)
in competition with the Company in the Region; or (iv) on his own
behalf or on behalf of or as an employee or agent of any other person
or business, contact or approach any person or business wherever
located, with a view to selling or assisting others to sell products
or services substantially competing with the Business. The Company
and Employee shall meet periodically to review the kinds of businesses
each deems to be in competition with the Company in the Region. They
shall seek to reach agreement as to such kinds of businesses solely
for the purposes of this Restated Agreement. Any such agreement shall
not be indicative of what business or businesses may be in competition
with the Company for any other purpose. In the event such periodic
reviews do not occur, competing kinds of businesses shall be those
contemplated by the term "Business" in Subsection 5.A.
D. Enforceability: If any portion of Section 5
is held to be illegal, unenforceable, void, or voidable, the remainder
shall remain in full force and effect, and Section 5 shall be deemed
altered and amended to the minimum extent necessary to bring it within
the legal requirements of enforceability.
6. Unique Services: Employee hereby represents and agrees that
the services to be performed under the terms of this Restated Agreement
are of a special, unique, unusual, extraordinary, and intellectual character
that gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in any action at law. Employee, therefore,
expressly agrees that the Company, in addition to any rights or remedies that
the Company might possess, shall be entitled to injunctive and other equitable
relief to prevent or remedy a breach of this Restated Agreement by Employee.
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7. Indemnification: The Company shall defend Employee
against all claims made against Employee, and it shall indemnify Employee for
all losses sustained by Employee, in direct consequence of the discharge of
Employee's duties on the Company's behalf, including any claim brought against,
or any loss sustained by, Employee in his role as an officer or employee of the
Company based on a claim that any of the Company's products or services
infringe a third party patent, copyright or trade secret; provided, that
Employee promptly notifies the Company in writing of any such claim, gives the
Company full authority for the conduct of such defense and participates in and
aids the Company's counsel by giving whatever time, information, expertise and
assistance is reasonably requested for such defense. Employee agrees to
indemnify and hold the Company and its shareholders harmless, individually and
collectively, from and against any liabilities, claims, costs, or expenses
(including shareholders) as a result of actions by Employee in excess of his
authority as set forth herein.
8. Confidential Information: Employee acknowledges that
in his employment hereunder, and during prior period of employment with the
Company, he has occupied and will continue to occupy a position of trust and
confidence. During the period of Employee's employment hereunder and the
Restricted Period thereafter, Employee shall not, except as may be required to
perform his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public other
than by Employee's unauthorized disclosure, disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company, and its
respective clients and customers that is not disclosed by the Company that was
learned by Employee in the course of his employment by the Company, including
(without limitation) any proprietary knowledge, trade secrets, data, formulae,
information and client and customer lists, pricing policies, suppliers, market
strategies, product development concepts and all papers, resumes, and records
(including computer records) of the documents containing such Confidential
Information. Employee acknowledges that such Confidential Information is
specialized, unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. The Employee agrees to
deliver or return to the Company, at the Company's request at any time or upon
termination or expiration of his employment or as soon thereafter as possible,
all documents, computer tapes and disks, records, lists, data, drawings,
prints, notes and written information (and all copies thereof) furnished by the
Company or prepared by the Employee during the term of his employment by the
Company.
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9. Compensation:
A. Salary: The Company shall pay Employee an
annual base salary of $ 260,000.00 ("Salary"), payable in equal
biweekly or bi-monthly installments in accordance with the normal
payroll procedures of the Company or at such other time or times as
Employee and the Company shall agree. Except as otherwise provided
herein, the Company's obligation to pay Employee's Salary under this
Restated Agreement shall cease as of the date of termination of
Employee's employment.
B. Incentive Compensation: Employee shall be
eligible to participate in the Company's 1996 Incentive Compensation
Plan.
C. Stock Options: Employee shall be eligible to
participate in the Company's 1996 Stock Option Plan on the terms and
conditions established by the Board of Directors of the Company.
10. Tax Withholding: The Company shall have the right to
deduct or withhold from the compensation due to Employee hereunder any and all
sums required for any and all federal, social security, state and local taxes,
assessments or charges now applicable or that may be enacted and become
applicable in the future.
11. Employee Benefits:
A. Vacation Time and Sick Leave: Employee shall
be entitled to (4) weeks of vacation and fifteen (15) days of sick
leave without loss of compensation each year during the Employment
Term. For the purposes of this paragraph, a year shall begin on the
effective date of this Restated Agreement as set forth above. In the
event that Employee takes vacation time or sick leave in excess of the
minimum numbers set forth in this paragraph, the Board of Directors
shall determine whether or not Employee shall receive compensation for
such excess days. Unless otherwise established by the Company's Board
of Directors, in the event that Employee does not for any reason take
the total amount of vacation time authorized during any year, he shall
be deemed to have waived any entitlement to vacation time for that
year. Sick days may not be accumulated.
B. Additional Benefits: Employee shall be
entitled to all employment benefits made available to other employees
of the Company and its affiliates, commensurate with Employee's
position and title with the Company and the Employee's work location.
Such benefits shall include, but are not limited to, such health
insurance, disability insurance, life insurance, pension, and
retirement plans as are adopted from time to time by the Company.
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12. Termination of Restated Agreement:
A. Termination for Cause: The Company may
terminate Employee's employment under this Restated Agreement for
"Cause," at any time, but only in the event of (a) Employee's
conviction of a felony (provided, however, that following indictment
for a felony, and prior to conviction, the Company may, without
limiting or modifying in any other way its obligations under this
Restated Agreement, suspend Employee from the performance of his
duties hereunder), or (b) a determination by the Company's Board of
Directors, acting reasonably and in good faith, that Employee has (1)
neglected his material duties or performed his material duties in an
incompetent manner, (2) committed fraudulent or dishonest actions, or
(3) deliberately injured or attempted to injure the Company; provided,
however, that Employee shall not be deemed to have been terminated for
Cause unless and until there shall have been delivered to him a copy
of a resolution duly adopted by the affirmative vote of not less than
a majority of the entire membership of the Board of Directors of the
Company, finding that, in the good faith opinion of such board, he was
guilty of or had engaged in conduct constituting Cause as set forth
herein and specifying the particulars thereof in detail.
B. Effect of Termination for Cause: In the
event of termination of Employee for cause as set forth in Subsection
12.A, or a voluntary termination by Employee in breach of this
Restated Agreement without the consent of the Company, Employee shall
have no right to any bonuses, salaries, benefits or entitlements other
than those required by law or specifically provided under the terms of
the applicable plan document. Payment of any further bonuses or other
salaries claimed by Employee will be in the sole and absolute
discretion of the Company, and Employee shall have no entitlement
thereto.
C. Disability and Death: If, during the
Employment Term, Employee should die or suffer any physical or mental
illness that renders him incapable of fulfilling his obligations under
this Restated Agreement, and such incapacity exists or may reasonably
be expected to exist for more than ninety (90) calendar days in the
aggregate, the Company may, upon five (5) calendar days written notice
to Employee, terminate this Restated Agreement. The determination of
the Company that Employee is incapable of fulfilling his obligations
under this Restated Agreement shall be final and binding. In the
event of termination under this Subsection 12.C, Employee, or his
estate, shall be entitled to an amount equal to six (6) months' Salary
and any other accrued compensation, plus such additional benefits, if
any, as may be approved by the Company's Board of Directors.
Employee, or his estate, shall, upon termination under the terms of
this Subsection 12.C, be further entitled to additional compensation,
to be calculated on a pro rata basis according to the number of
accrued vacation days, if any, not taken by Employee during the year
defined for the purposes of vacation, in which Employee was
terminated.
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D. Voluntary Termination by Employee at the End
of the Employment Term: In the event of voluntary termination by
Employee at the end of the Initial Employment Term, or any Extended
Employment Term, Employee shall be entitled only to those amounts that
have accrued to the date of termination or are expressly payable under
the terms of the Company's applicable benefit plans or are required by
applicable law. The Company may, in its sole and absolute discretion,
confer such other benefits or payments as it determines, but Employee
shall have no entitlement thereto.
E. Termination by Employer at the End of the
Employment Term: In the event that Employee's employment is
terminated by the Company at the end of the Initial Employment Term or
any Extended Employment Term as a result of the Company's notice
specified in Section 2 above, Employee shall be treated as in
Subsection 12.D.
F. Termination by Employer During the Employment
Term: In the event of termination by the Employer other than at the
end of the Initial Employment Term or Extended Employment Term, other
than for cause under Subsection 12.A, Employee shall be entitled to
two (2) year's base salary (at Employee's then current base) payable
upon such termination.
G. Confidentiality: Nothing in this Section 12
shall affect the rights of the parties under Section 5 above.
H. Payment of Accrued Compensation at
Termination: Notwithstanding anything to the contrary, any accrued
compensation payable to Employee, including any severance benefits,
payable to Employee at the time of his termination, may be allocated
at the option of Employee to the purchase of shares in the Company
under employee stock options granted under Subsection 9.C, to the
extent permitted by law and in accordance with the Company's Stock
Option Plan.
13. Assignment of Intellectual Property Rights:
A. Definition of "Inventions": As used herein,
the term "Inventions" shall mean all inventions, discoveries,
improvements, trade secrets, formulas, techniques, data, programs,
systems, specifications, documentation, algorithms, flow charts, logic
diagrams, source codes, processes, and other information, including
works-in-progress, whether or not subject to patent, trademark,
copyright, trade secret, or mast work protection, and whether or not
reduced to practice, which are made, created, authored, conceived, or
reduced to practice by Employee, either alone or jointly with others,
during the period of employment with the Company and for one year
following the termination of Employee's employment with the Company
which (1) relate to the actual or anticipated business, activities,
research, or investigations of the Company, or (2) result from or is
suggested by work performed by Employee for the Company (whether or
not made or
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conceived during normal working hours or on the premises of the
Company), or (3) which result, to any extent, from use of the
Company's premises or property.
B. Work for Hire: Employee expressly
acknowledges that all copyrightable aspects of the Inventions are to
be considered "works made for hire" within the meaning the Copyright
Act of 1976, as amended (the "Act"), and that the Company is to be
"author" within the meaning of such Act for all purposes. All such
copyrightable works, as well as all copies of such works in whatever
medium fixed or embodied, shall be owned exclusively by the Company as
of its creation, and Employee hereby expressly disclaims any and all
interest in any of such copyrightable works and waives any right of
droit morale or similar rights.
C. Assignment: Employee acknowledges and agrees
that all Inventions constitute trade secrets of the Company or the
member of the Company, as applicable, and shall be the sole property
of the Company, as applicable or any other entity designated by the
Company. In the event that title to any or all of the Inventions or
any part or element thereof, may not, by operation of law, vest in the
Company, as applicable, or such Inventions may be found as a matter of
law not to be "works made for hire" within the meaning of the Act,
Employee hereby conveys and irrevocably assigns to the Company, as
applicable, without further consideration, all his right, title and
interest, throughout the universe and in perpetuity, in all Inventions
and all copies of them, in whatever medium fixed or embodied, and in
all written records, graphics, diagrams, notes, or reports relating
thereto in Employee's possession or under his control, including, with
respect to any of the foregoing, all rights of copyright, patent,
trademark, trade secret, mask work, and any and all other proprietary
rights therein, the right to modify and create derivative works, the
right to invoke the benefit of any priority under any international
convention and all rights to register and renew same.
D. Proprietary Notices; No Filings; Waiver of
Moral Rights: Employee acknowledges that all Inventions shall at the
sole option of the Company bear the Company's patent, copyright,
trademark, trade secret, and mask work notices. Employee agrees not
to file any patent, copyright, or trademark applications relating to
any Invention, except with prior written consent of an authorized
representative of the Company. Employee hereby expressly disclaims
any and all interest in any Inventions and waives any right of
droit morale or similar rights, such as rights of integrity or the
right to be attributed as the creator of the Invention.
E. Further Assurances: Employee agrees to
assist the Company, or any party designated by the Company, promptly
on the Company's request, whether before or after the termination of
employment however such termination may occur, in perfecting,
registering, maintaining, and enforcing, in any jurisdiction, the
Company's rights in the Inventions by performing all acts and
executing all documents and instruments deemed
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necessary or convenient by the Company, including, by way of
illustration and not limitation:
a. Executing assignments, applications,
and other documents and instruments in connection with (1)
obtaining patents, copyrights, trademarks, mask works, or
other proprietary protections for the Inventions and (2)
confirming the assignment to the Company of all right, title,
and interest in the Inventions or otherwise establishing the
Company's exclusive ownership rights therein.
b. Cooperating in the prosecution of
patent, copyright, trademark and mask work applications, as
well as in the enforcement of the Company's rights in the
Inventions, including, but not limited to, testifying in court
or before any patent, copyright, trademark or mask work
registry office, or any other administrative body.
Employee will be reimbursed for all out-of-pocket
costs incurred in connection with the foregoing, if such assistance is
requested by the Company after the termination of employment. In
addition, to the extent that, after the termination of employment for
whatever reason, Employee's technical expertise shall be required in
connection with the fulfillment of the aforementioned obligations, the
Company will compensate Employee at a reasonable rate for the time
actually spent by Employee at the Company's request rendering such
assistance.
F. Power of Attorney: Employee hereby
irrevocably appoints the Company to be his Attorney-in-Fact in his
name and on his behalf to execute any document and to take any action
and generally to use his name for the purpose of giving to the Company
the full benefit of the assignment provisions set forth above.
G. Consent to Use of Name: The Company reserves
the right (but shall not have the obligation) to publicize Employee's
name and background in connection with the marketing of the Inventions
or the enforcement of the Company's rights therein. Employee is
responsible for supplying to the Company his resume or curriculum
vitae for such purposes. Employee agrees that the Company shall have
the sole control over the type style, type size, or placement of his
name on any materials, or over the final content of any biography used
in said material.
H. Disclosure of Inventions: Employee will make
full and prompt disclosure to the Company of all Inventions subject to
assignment to the Company, and all information relating thereto in
Employee's possession or under his control as to possible applications
and use thereof.
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I. No Violation of Third Party Rights: Employee
represents, warrants, and covenants that he:
a. will not, in the course of
employment, infringe upon or violate any proprietary rights of
any third party (including, without limitation, any third
party confidential relationships, patents, copyrights, mask
works, trade secrets, or other proprietary rights);
b. is not a party to any conflicting
agreements with third parties which will prevent him from
fulfilling the terms of employment and the obligations of this
Restated Agreement;
c. does not have in his possession any
confidential or proprietary information or documents belonging
to others and will not disclose to the Company, use, or induce
the Company to use, any confidential or proprietary
information or documents of others; and
d. agrees to respect any and all valid
obligations which he may now have to prior employers or to
others relating to confidential information, inventions, or
discoveries which are the property of those prior employers or
others, as the case may be.
Employee has supplied or shall promptly supply to the
Company a copy of each written agreement to which Employee is subject
(other than any agreement to which the Company is a party) which
includes any obligation of confidentiality, assignment of Inventions,
or non-competition.
Employee agrees to indemnify and save harmless the
Company from any loss, claim, damage, costs or expenses of any kind
(including without limitation, reasonable attorney's fees) to which
the Company may be subjected by virtue of a breach by Employee of the
foregoing representations, warranties, and covenants.
J. Obligations Upon Termination: In the event
of any termination of his employment, for whatever reason, Employee
will promptly (1) deliver to the Company all physical property, discs,
documents, notes, printouts, and all copies thereof and other
materials in Employee's possession or under Employee's control
pertaining to the business of the Company, including, but not limited
to, those embodying or relating to the Inventions and the Confidential
Information (as defined in Sections 8 and 13.A herein), (2) deliver to
the Company's patent department or legal department or other person
designated by the Company all notebooks and other data relating to
research or experiments or other work conducted by Employee in the
scope of employment or any Inventions made, created,
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authored, conceived, or reduced to practice by Employee, either alone
or jointly with others, and (3) make full disclosure relating to any
Inventions.
If Employee would like to keep certain property, such
as material relating to professional societies or other
non-confidential material, upon the termination of employment with the
Company, he agrees to discuss such issues with the Company. Where
such a request does not put Confidential Information of the Company at
risk, the Company will customarily grant the request.
Upon termination of employment with the Company,
Employee's obligations under this Section 13 shall survive and the
Employee shall, if requested by the Company, reaffirm Employee's
recognition of the importance of maintaining the confidentiality of
the Company's Confidential Information and reaffirm all of the
Employee's obligations set forth in this Section 13.
14. Life Insurance: The Company may, in its sole
discretion, purchase such life insurance policies as it deems necessary or
appropriate, naming Employee as the insured and the Company as beneficiary.
Employee hereby agrees to submit to any reasonable medical examination required
for the purchase of such insurance.
15. Notices: Any notices to be given hereunder by either
party to the other shall be in writing and may be transmitted by personal
delivery or by certified mail, return receipt requested. Mailed notices shall
be addressed to the parties as follows:
If notice is to the Company, to:
AVTEAM, INC.
Miramar Park of Commerce
0000 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chairman, Board of Directors
with copy to:
Xxxxx & XxXxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Nation, Esq.
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If notice is to Employee, to:
Xxxxxx X. Xxxx
0000 X.X. 00xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Either party may change its address by written notice in
accordance with this Section 15. Notices delivered personally shall be deemed
communicated as of the dates of actual receipt; mailed notices shall be deemed
communicated as of forty-eight (48) hours after the date of mailing.
16. Arbitration: Any controversy between the parties
involving the construction or application of any of the terms, provisions or
conditions of this Restated Agreement or in any way connected with Employee's
employment with the Company, including but not limited to, breach of this
Restated Agreement, termination or discharge, claims of age, gender, race or
disability discrimination, sexual harassment or civil rights violations shall,
within thirty days of the written notice to the other party, be submitted to
final and binding arbitration as follows:
A. The arbitration shall be held in Miami,
Florida.
B. The arbitration shall be conducted by one
arbitrator, who is a member of the American Arbitration Association
("AAA") and in accordance with the rules of the AAA then in effect,
subject to the specific exceptions set out in Subsection 16.C, unless
both parties agree otherwise. The arbitrator shall be chosen from a
panel of persons with knowledge of and experience in employment and
employment law issues.
C. Notwithstanding any rule of the AAA to the
contrary, (l) the parties shall be entitled to conduct discovery
(i.e., investigation of facts through deposition and other means)
which shall be governed by the Florida Rules of Civil Procedure then
in effect; (2) the arbitrator shall have all power and authority
relating to such discovery as are allowed under the Florida Rules of
Civil Procedure; (3) the arbitrator shall apply Florida substantive
law; (4) at the election and at the expense of either party, a Court
Reporter may record the hearing and such recording will be the
official record of the proceeding; and (5) the arbitrator shall
specify the basis for, and the type of damage award, if any, entered.
D. The arbitrator's authority to order discovery
and enter judgment shall be final and binding. It may be enforced
through an order of a court of competent jurisdiction. Such judgment
may be reviewed by a court only on the grounds of bias, improper
conduct of the arbitrator, abuse of discretion, or violation of public
policy.
Notwithstanding the foregoing agreement to arbitrate,
either party may apply to any court of competent jurisdiction for
temporary restraining orders, preliminary
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injunctions, permanent injunctions, or other extraordinary relief, to
remedy any actual or threatened unauthorized disclosure of
confidential information or unauthorized use, copying, marketing, or
distribution of confidential information. Such application shall be
made before the arbitrator is appointed and assumes his or her
responsibilities. The seeking of injunctive relief shall not operate
to prejudice the rights of the parties to arbitrate their disputes.
17. Attorneys' Fees and Costs: If either party fails to
perform its respective obligations under this Restated Agreement, and the other
party is thereby required to incur attorneys' fees or other fees or costs,
including but not limited to the costs of arbitration, the party so incurring
such fees and costs shall be entitled to the payment of those fees and costs by
the breaching party.
18. Entire Agreement: This Restated Agreement supersedes
any and all other agreements, either oral or in writing, between the parties
hereto with respect to the employment of Employee by the Company and contains
all of the covenants and agreements between the parties with respect to that
employment in any manner whatsoever. Each party to this Restated Agreement
acknowledges that no representations, inducements, promises, or agreements,
oral or written, have been made by any party, or anyone acting on behalf of any
party, which are not embodied herein, and that no other agreement, statement,
or promise not contained in this Restated Agreement shall be valid or binding
on either party.
19. Modifications: Any modification of this Restated
Agreement shall be effective only if it is in writing and signed by both
parties.
20. Effect of Waiver: The failure of either party to
insist on strict compliance with any of the terms, covenants, or conditions of
this Restated Agreement by the other party shall not be deemed a waiver of that
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power at any one time or times be deemed a waiver or relinquishment of
that right or power for all or any other times.
21. Partial Invalidity: If any provision of this
Restated Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remaining provisions shall nevertheless continue in
full force without being impaired or invalidated in any way, unless such
partial invalidity materially affects the intent of the parties.
22. Governing Law: This Restated Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
23. Assignability: The rights and duties of either party
hereunder shall not be assignable by either party, except that this Restated
Agreement and all rights and obligations hereunder may be assigned by the
Company to, and be assumed by, any corporation or other
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business entity which succeeds to all or substantially all of the assets and
business of the Company through merger, consolidation, acquisition of assets,
or other corporate reorganization.
24. Survival: The covenants, agreements, representations
and warranties contained in or made pursuant to this Restated Agreement shall
survive Employee's termination of employment irrespective of any investigation
made by or on behalf of any party.
IN WITNESS WHEREOF, the parties have executed this Restated Agreement
effective as of the day and year first above written.
AVTEAM, INC.
By:__________________________________
Name:_____________________
Title:_______________________________
EMPLOYEE:
_____________________________________
Xxxxxx X. Xxxx
14
