EXHIBIT 10.79
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT ("Agreement"), dated this 23rd day of August,
2001, by and between AVIATION SALES COMPANY, a Delaware corporation (the
"Company"), and ▇▇▇ ▇▇▇▇ (the "Employee").
In consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement and other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Employment.
(a) Retention. The Company agrees to employ Employee as its Executive Vice
President and Chief Operating Officer, and the Employee agrees to accept
such employment, subject to the terms and conditions of this Agreement.
(b) Employment Period. This Agreement shall commence on August 24, 2001 (the
"Effective Date") and, unless terminated in accordance with the terms of this
Agreement, shall continue in effect until December 31, 2004 (the "Employment
Period").
(c) Duties and Responsibilities. During the Employment Period, the Employee
shall serve as Executive Vice President (or, at the discretion of the Board of
Directors of the Company, as President) and as Chief Operating Officer of the
Company and its subsidiaries. In such role, Employee shall have such authority
and responsibility and perform such duties as may be assigned to him from time
to time by the Chief Executive Officer of the Company, and in the absence of
such assignment, such duties as are customary to Employee's office and as are
necessary or appropriate to the business and operations of the Company and its
subsidiaries. During the Employment Period, the Employee's employment shall be
full time, Employee shall perform his duties honestly, diligently, in good faith
and in the best interests of the Company and its subsidiaries, and Employee
shall use his best efforts to promote the interests of the Company and its
subsidiaries.
(d) Other Activities. Except upon the prior written consent of the Company,
the Employee, during the Employment Period, will not accept any other
employment. The Employee shall be permitted to serve in ventures such as passive
real estate investments, serving on charitable and civic boards and
organizations, and similar activities, so long as such activities do not
materially interfere with or detract from the performance of Employee's duties
or constitute a breach of any of the provisions contained in this Agreement.
2. Compensation.
(a) Base Salary. In consideration for the Employee's services hereunder and
the restrictive covenants contained herein, the Employee shall be paid an annual
base salary of $300,000 (the "Salary"), payable in accordance with the Company's
customary payroll practices. Notwithstanding the foregoing, Employee's annual
Salary may be increased at anytime and from time to time to levels greater than
the level set forth in the preceding sentence at the discretion of the Board of
Directors of the Company to reflect merit or other increases.
(b) Bonus. In addition to the Salary, the Employee shall be eligible to
receive an annual bonus ("Bonus") equal to 100% of the Employee's Base Salary.
The Bonus shall be based on the achievement of corporate goals and objectives as
established by the Compensation Committee of the Board of Directors. The
achievement of said goals and objectives shall be determined by the Compensation
Committee of the Board of Directors. With respect to any Fiscal Year during
which the Employee is employed by the Company for less than the entire Fiscal
Year, the Bonus shall be prorated for the period during which the Employee was
so employed. The Bonus shall be payable within thirty (30) days after the end of
the Company's Fiscal Year. The term "Fiscal Year" as used herein shall mean each
period of twelve (12) calendar months commencing on January 1st of each calendar
year during the Employment Period and expiring on December 31st of such year.
(c) Merit and Other Bonuses. Employee shall be entitled to such other
bonuses, payments and benefits may be determined by the Board of Directors of
the Company or by a committee of the Board of Directors as determined by the
Board of Directors, in its sole discretion.
(d) Signing Bonus. Employee shall be entitled to a signing bonus (the
"Signing Bonus") in the amount of $200,000 which shall be grossed-up for all
taxes imposed on Employer with respect to the Signing Bonus, including income
taxes and the Employee's share of FICA and all other payroll taxes. For purposes
of determining the amount of the gross-up, the Employee shall be deemed to pay
Federal income taxes at the highest marginal rate of Federal income taxation in
the calendar year in which the Signing Bonus (or any portion of the Signing
Bonus) is paid, and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Employee's residence in the calendar
year in which the Signing Bonus (or any portion of the Signing Bonus) is paid,
net of the maximum reduction in Federal income taxes which could be obtained
from deduction of such state and local taxes. The Signing Bonus shall be payable
in three monthly installments, with the first installment due 30 days after the
Effective Date and each month thereafter on the same date. Employee shall repay
a pro-rata portion of the Signing Bonus to Employer if he resigns from his
employment prior to the second anniversary of the Effective Date.
(e) Stock Options. On the Effective Date, the Company shall issue to the
Employee a five-year option to purchase 300,000 shares of the Company's
authorized but unissued common stock at an exercise price equal to the last
closing price of the common stock on the date on which this Agreement was
approved by the Compensation Committee of the Board of Directors of the Company
($1.20 per share). The options shall vest 1/3 on date of grant, 1/3 on the first
anniversary of the Effective Date and 1/3 on the second anniversary of the
Effective Date. The Employee shall be entitled to participate and receive option
grants in the future, as may be determined by the Compensation Committee of the
Board of Directors of the Company. Notwithstanding the foregoing, Employee has
been advised by Company that it is currently negotiating with the holders of the
Company's outstanding senior subordinated notes to restructure the Company's
currently outstanding debt and equity and to recapitalize the Company. The
Company hereby agrees to adjust Employee's option grant hereunder after the
completion of the restructuring/recapitalization to provide an equivalent
benefit to Employee such that Employee is not prejudiced by the
restructuring/recapitalization.
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(f) Other Compensation Programs. The Employee shall be entitled to
participate in the Company's incentive and deferred compensation programs and
such other programs as are established and maintained generally for the benefit
of the Company's employees or executive officers, subject to the provisions of
such plans or programs.
(g) Vacations. The Employee shall be entitled to three weeks of vacation on
an annual basis. Employee shall be entitled to be reimbursed for any accrued and
unused vacation time as of the date he is no longer an employee of the Company.
(h) Annual Executive Physical. The Company shall pay all direct costs of
Employee's annual executive physical at the Mayo Clinic in Rochester,
Minnesota.
(i) Other Benefits. During the term of this Agreement, the Employee shall
also be entitled to participate in any other health insurance programs, life
insurance programs, disability programs, stock option plans, bonus plans,
pension plans and other fringe benefit plans and programs as are from time to
time established and maintained for the benefit of the Company's employees or
executive officers, subject to the provisions of such plans and programs.
(j) Expenses. The Employee shall be reimbursed for all out-of-pocket
expenses reasonably incurred by him on behalf of or in connection with the
business of the Company, pursuant to the normal standards and guidelines
followed from time to time by the Company.
(k) Relocation Expenses. Upon submission of appropriate documentation, the
Company shall reimburse Employee for the full and total cost of (i) transporting
all household goods currently residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇, by a
company widely recognized as an expert in relocation matters, to the permanent
residence the Employee shall establish in Greensboro, North Carolina, (ii)
flying the Employee and his immediate family to and from Eagan, MN to
Greensboro, North Carolina and (iii) direct costs of temporary housing in
Greensboro for a period of up to 180 days from the date Employee begins his
residence in Greensboro.
(l) Real Estate Fees. Upon submission of appropriate documentation, the
Company shall reimburse the Employee for full and total costs of any and all
reasonable real estate fees or costs normally involved in the sale and purchase
of residential real estate. These costs may include or all of the following;
loan origination fees, appraisal fees, credit reports, mortgage broker fees,
real estate broker fees, title insurance and recording fees resulting from the
sale of Employee's current residence at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇.
3. Termination.
(a) For Cause. The Company shall have the right to terminate this Agreement
and to discharge the Employee for Cause (as defined below), at any time during
the term of this Agreement. Termination for Cause shall mean, during the term of
this Agreement, (i) Employee's conduct that would constitute under federal or
state law either a felony or a misdemeanor involving moral turpitude, or a
determination by the Company's Board of
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Directors, after consideration of all available information and following the
procedures set forth below, that Employee has willfully violated Company
policies or procedures involving discrimination, harassment, alcohol or
substance abuse, or work place violence causing material injury to the Company,
(ii) Employee's actions or omissions that constitute fraud, dishonesty or gross
misconduct, (iii) Employee's knowing and intentional breach of any fiduciary
duty that causes material injury to the Company, and (iv) Employee's inability
to perform his material duties, after reasonable notice and an opportunity to
resolve the issues, due to alcohol or other substance abuse. Any termination for
Cause pursuant to this Section shall be given to the Employee in writing and
shall set forth in detail all acts or omissions upon which the Company is
relying to terminate the Employee for Cause.
Upon any determination by the Company that Cause exists to terminate the
Employee, the Company shall cause a special meeting of the Board of Directors to
be called and held at a time mutually convenient to the Board of Directors and
Employee, but in no event later than ten (10) business days after Employee's
receipt of the notice that the Company intends to terminate the Employee for
Cause. Employee shall have the right to appear before such special meeting of
the Board of Directors with legal counsel of his choosing to refute such
allegations and shall have a reasonable period of time to cure any actions or
omissions which provide the Company with a basis to terminate the Employee for
Cause (provided that such cure period shall not exceed 30 days). A majority of
the members of the Board of Directors must affirm that Cause exists to terminate
the Employee. No finding by the Board of Directors will prevent the Employee
from contesting such determination through appropriate legal proceedings
provided that the Employee's sole remedy shall be to ▇▇▇ for damages, not
reinstatement, and damages shall be limited to those that would be paid to the
Employee if he had been terminated without Cause. In the event the Company
terminates the Employee for Cause, the Company shall only be obligated to
continue to pay in the ordinary and normal course of its business to the
Employee his Salary plus accrued but unused vacation time through the
termination date and the Company shall have no further obligations to Employee
from and after the date of termination.
(b) Resignation by Employee. If the Employee shall resign or otherwise
terminate his employment with the Company at anytime during the term of this
Agreement, the Employee shall only be entitled to receive his accrued and unpaid
Salary through the termination date, and the Company shall have no further
obligations under this Agreement from and after the date of resignation.
(c) Termination by Company Without Cause. At any time during the term of
this Agreement the Company shall have the right to terminate this Agreement and
to discharge the Employee without Cause effective upon delivery of written
notice to the Employee. Upon any such termination by the Company without Cause,
the Company shall pay to the Employee all of the Employee's accrued but unpaid
Salary through the date of termination, and continue to pay to or provide for
the Employee (a) his Salary payable in accordance with Section 2(a) for two (2)
years from the date of termination, when and as the same would have been due and
payable hereunder but for such termination, (b) all health benefits in which
Employee was entitled to participate at any time during the 12-month period
prior to the date of termination, until the earliest to occur of the second
anniversary of the date of termination, the Employee's death, or the date on
which the Employee becomes covered by a comparable health benefit plan by a
subsequent employer; provided, however, that in the event that Employee's
continued
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participation in any health benefit plan of the Company is prohibited, the
Company will arrange to provide Employee with benefits substantially similar to
those which Employee would have been entitled to receive under such plan for
such period on a basis which provides Employee with no additional after tax
cost, (c) all stock option grants, or other stock grants issued during the term
of this Agreement, will immediately vest and such options will remain
exercisable for the lesser of the unexpired term of the option without regard to
the termination of Employee's employment or two (2) years from the date of
termination of employment and (d) all long term incentive cash grants and
bonuses provided to the Employee shall immediately vest as if all targets and
conditions had been met and shall be paid by the Company to the Employee at such
times as the Company would have been required to make such payments if this
Agreement had remained in effect, provided, however, that in the case of
incentives partially or completely contingent on the providing of service for a
specific period of time, the total amount to be paid by the Company shall be
equal to the maximum amount payable if all conditions were met, multiplied by a
fraction, the numerator of which is the period of service that would have been
served if the Employee's employment had terminated as of the last day of the
fiscal year in which his employment was terminated, and the denominator of which
is the total period of time specified as a condition to the incentive
(collectively, the foregoing consideration payable to the Employee shall be
referred to herein as the "Severance Payment"). Other than the Severance
Payment, the Company shall have no further obligation to the Employee except for
the obligations set forth in Section 12 of this Agreement after the date of such
termination; provided, however, that the Employee shall only be entitled to
continuation of the Severance Payments as long as he is in compliance with the
provisions of Sections 6 and 7 of this Agreement.
(d) Disability of the Employee. This Agreement may be terminated by the
Company upon the Disability of the Employee. "Disability" shall mean any mental
or physical illness, condition, disability or incapacity which prevents the
Employee from reasonably discharging his duties and responsibilities under this
Agreement for a period of 180 consecutive days. In the event that any
disagreement or dispute shall arise between the Company and the Employee as to
whether the Employee suffers from any Disability, then, in such event, the
Employee shall submit to the physical or mental examination of a physician
licensed under the laws of the State of Florida, who is mutually agreeable to
the Company and the Employee, and such physician shall determine whether the
Employee suffers from any Disability. In the absence of fraud or bad faith, the
determination of such physician shall be final and binding upon the Company and
the Employee. The entire cost of such examination shall be paid for solely by
the Company. In the event the Company has purchased Disability insurance for
Employee, the Employee shall be deemed disabled if he is completely (fully)
disabled as defined by the terms of the Disability policy. In the event that at
any time during the term of this Agreement the Employee shall suffer a
Disability and the Company terminates the Employee's employment for such
Disability, such Disability shall be considered to be a termination by the
Company without Cause and the Severance Payments shall be paid to the Employee
to the same extent and in the same manner as provided for in paragraph (c)
above, except that payment of the Salary in accordance with said paragraph shall
be mitigated to the extent payments are made to the Employee pursuant to
disability insurance programs maintained by the Company.
(e) Death of the Employee. During the term of this Agreement, the Company
shall maintain term life insurance on the life of the Employee in the face
amount of $2.5 million payable to a beneficiary designated by the Employee,
assuming Employee is
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insurable. In the event of the death of Employee, the employment of the Employee
by the Company shall automatically terminate on the date of the Employee's death
and the Company shall only be obligated to pay Employee's estate Employee's
accrued and unpaid Salary through the termination date plus accrued but unused
vacation time through the termination date and the Company shall have no further
obligations to Employee from and after the date of termination.
4. Termination of Employment by Employee for Change of Control.
(a) Termination Rights. Notwithstanding the provisions of Section 2 and
Section 3 of this Agreement, in the event that there shall occur a Change of
Control (as defined below) of the Company and within two years after such Change
of Control the Employee's employment hereunder is terminated by the Company
without Cause, then the Company shall be required to pay to the Employee (i) the
Severance Payment provided in Section 3(c), except that such Severance Payment
shall be paid in a single lump sum in full, and (ii) the product of three
multiplied by the maximum Bonus that Employee received in the Fiscal Year prior
to the Fiscal Year in which such termination occurs, assuming that all
performance objectives are met, in a single lump sum. The foregoing payments
shall be made no later than 10 days after the Employee's termination pursuant to
this Section 4. To the extent that payments are owed by the Company to the
Employee pursuant to this Section 4, they shall be made in lieu of payments
pursuant to Section 3, and in no event shall the Company be required to make
payments or provide benefits to the Employee under both Section 3 and Section 4.
(b) Change of Control of the Company Defined. For purposes of this Section
4, a "Change of Control of the Company" shall be deemed to have occurred if:
(i) Any "person" (as such term is defined in Sections 13(d)(3) and Section
14(d)(3) of the Exchange Act), other than the Company, any majority-owned
subsidiary of the Company, any compensation plan of the Company, any majority-
owned subsidiary of the Company or ▇▇▇▇ ▇. ▇▇▇▇▇▇ and his affiliates, becomes
the "beneficial owner" (as such term is defined in Rule 13d-3 of the Exchange
Act), directly or indirectly, of securities of the Company representing more
than 50% of the combined voting power of the Company; or
(ii) The shareholders of the Company approve (1) a reorganization, merger,
or consolidation with respect to which persons who were the shareholders of the
Company immediately prior to such reorganization, merger, or consolidation do
not immediately thereafter own more than 50% of the combined voting power
entitled to vote generally in the election of the directors of the reorganized,
merged or consolidated entity; (2) a liquidation or dissolution of the Company;
or (3) the sale of all or substantially all of the assets of the Company or of a
subsidiary of the Company that accounts for more than 66 2/3% of the
consolidated revenues of the Company, but not including a reorganization, merger
or consolidation of the Company.
5. Successor To Company. The Company shall require any successor, whether
direct or indirect, to all or substantially all of the business, properties and
assets of the Company whether by purchase, merger, consolidation or otherwise,
prior to or simultaneously with such purchase, merger, consolidation or other
acquisition to execute and to deliver to the Employee a written instrument in
form and in substance reasonably satisfactory to the Employee pursuant to
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which any such successor shall agree to assume and to timely perform or to cause
to be timely performed all of the Company's covenants, agreements and
obligations set forth in this Agreement (a "Successor Agreement"). The failure
of the Company to cause any such successor to execute and deliver a Successor
Agreement to the Employee shall constitute a material breach of the provisions
of this Agreement by the Company.
6. Restrictive Covenants. In consideration of his employment and the other
benefits arising under this Agreement, the Employee agrees that during the term
of this Agreement, and for a period of three (3) years following the termination
of this Agreement, the Employee shall not directly or indirectly:
(a) alone or as a partner, joint venturer, officer, director, member,
employee, consultant, agent, independent contractor or stockholder of, or lender
to, any company or business, engage in any business which competes, directly or
indirectly, with any business of the Company; provided, however, that the
beneficial ownership of less than one percent (1%) of the shares of stock of any
corporation having a class of equity securities actively traded on a national
securities exchange or over-the-counter market shall not be deemed, in and of
itself, to violate the prohibitions of this Section; or
(b) for any reason, (i) induce any customer of the Company or any of its
subsidiaries or affiliates to patronize any business directly or indirectly in
competition with the businesses conducted by the Company or any of its
subsidiaries or affiliates in any market in which the Company or any of its
subsidiaries or affiliates does business; (ii) canvass, solicit or accept from
any customer of the Company or any of its subsidiaries or affiliates any such
competitive business; or (iii) request or advise any customer or vendor of the
Company or any of its subsidiaries or affiliates to withdraw, curtail or cancel
any such customer's or vendor's business with the Company or any of its
subsidiaries or affiliates; or
(c) for any reason, employ, or knowingly permit any company or business
directly or indirectly controlled by him, to employ, any person who was employed
by the Company or any of its subsidiaries or affiliates at or within the prior
six months, or in any manner seek to induce any such person to leave his or her
employment.
7. Confidentiality. The Employee agrees that at all times during the term
of this Agreement and after the termination of employment for as long as such
information remains non-public information, the Employee shall (i) hold in
confidence and refrain from disclosing to any other party all information,
whether written or oral, tangible or intangible, of a private, secret,
proprietary or confidential nature, of or concerning the Company or any of its
subsidiaries or affiliates and their business and operations, and all files,
letters, memoranda, reports, records, computer disks or other computer storage
medium, data, models or any photographic or other tangible materials containing
such information ("Confidential Information"), including without limitation, any
sales, promotional or marketing plans, programs, techniques, practices or
strategies, any expansion plans (including existing and entry into new
geographic and/or product markets), and any customer lists, (ii) use the
Confidential Information solely in connection with his employment with the
Company or any of its subsidiaries or affiliates and for no other purpose, (iii)
take all precautions necessary to ensure that the Confidential Information shall
not be, or be permitted to be, shown, copied or disclosed to third parties,
without the prior written
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consent of the Company or any of its subsidiaries or affiliates, and (iv)
observe all security policies implemented by the Company or any of its
subsidiaries or affiliates from time to time with respect to the Confidential
Information. In the event that the Employee is ordered to disclose any
Confidential Information, whether in a legal or regulatory proceeding or
otherwise, the Employee shall provide the Company or any of its subsidiaries or
affiliates with prompt notice of such request or order so that the Company or
any of its subsidiaries or affiliates may seek to prevent disclosure. In
addition to the foregoing the Employee shall not at any time libel, defame,
ridicule or otherwise disparage the Company.
8. Specific Performance; Injunction. The parties agree and acknowledge that
the restrictions contained in Sections 6 and 7 are reasonable in scope and
duration and are necessary to protect the Company or any of its subsidiaries or
affiliates. If any provision of Section 6 or 7 as applied to any party or to any
circumstance is adjudged by a court to be invalid or unenforceable, the same
shall in no way affect any other circumstance or the validity or enforceability
of any other provision of this Agreement. If any such provision, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision, and/or to delete specific words or phrases, and in its reduced form,
such provision shall then be enforceable and shall be enforced. The Employee
agrees and acknowledges that the breach of Section 6 or 7 will cause irreparable
injury to the Company or any of its subsidiaries or affiliates and upon breach
of any provision of such Sections, the Company or any of its subsidiaries or
affiliates shall be entitled to injunctive relief, specific performance or other
equitable relief, without being required to post a bond; provided, however,
that, this shall in no way limit any other remedies which the Company or any of
its subsidiaries or affiliates may have (including, without limitation, the
right to seek monetary damages).
9. Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing and shall be deemed given if delivered by hand
delivery, by certified or registered mail (first class postage pre-paid),
guaranteed overnight delivery or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage pre-
paid) or guaranteed overnight delivery to, the following addresses and telecopy
numbers (or to such other addresses or telecopy numbers which such party shall
designate in writing to the other parties): (a) if to the Company, at its
principal executive offices, addressed to the Chief Executive Officer, with a
copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Akerman, Senterfitt & ▇▇▇▇▇▇, P.A., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; and (b) if to the Employee, at the
address listed on the signature page hereto.
10. Amendment; Waiver. This Agreement may not be modified, amended, or
supplemented, except by written instrument executed by all parties. No failure
to exercise, and no delay in exercising, any right, power or privilege under
this Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the exercise of any
other right, power or privilege. No waiver of any breach of any provision shall
be deemed to be a waiver of any preceding or succeeding breach of the same or
any other provision, nor shall any waiver be implied from any course of dealing
between the parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to be an
extension of the time for performance of any
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other obligations or any other acts. The rights and remedies of the parties
under this Agreement are in addition to all other rights and remedies, at law or
equity, that they may have against each other.
11. Assignment; Third Party Beneficiary. This Agreement, and the Employee's
rights and obligations hereunder, may not be assigned or delegated by him. The
Company may assign its rights, and delegate its obligations, hereunder to any
affiliate of the Company, or any successor to the Company or its Aviation
Services Business, specifically including the restrictive covenants set forth in
Section 6 hereof. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and be binding upon its respective successors and
assigns.
12. Severability; Survival. In the event that any provision of this
Agreement is found to be void and unenforceable by a court of competent
jurisdiction, then such unenforceable provision shall be deemed modified so as
to be enforceable (or if not subject to modification then eliminated herefrom)
to the extent necessary to permit the remaining provisions to be enforced in
accordance with the parties intention. The provisions of Sections 6 and 7 will
survive the termination for any reason of the Employee's relationship with the
Company.
13. Indemnification. The Company agrees to indemnify the Employee during
the term and after termination of this Agreement in accordance with the
provisions of the Company's certificate of incorporation and bylaws and the
Delaware General Corporation Law.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
15. Governing Law. This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of Florida applicable to
contracts executed and to be wholly performed within such State.
16. Entire Agreement. This Agreement contains the entire understanding of
the parties in respect of its subject matter and supersedes all prior agreements
and understandings (oral or written) between or among the parties with respect
to such subject matter.
17. Headings. The headings of Paragraphs and Sections are for convenience
of reference and are not part of this Agreement and shall not affect the
interpretation of any of its terms.
18. Construction. This Agreement shall be construed as a whole according to
its fair meaning and not strictly for or against any party. The parties
acknowledge that each of them has reviewed this Agreement and has had the
opportunity to have it reviewed by their respective attorneys and that any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement.
19. Resolution of Disputes. Any disputes arising under or in connection
with this Agreement shall be resolved by third party mediation of the dispute
and, failing that, by binding arbitration to be held in Miami, Florida in
accordance with the rules and procedures of the
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American Arbitration Association. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
20. Attorney's Fees. If at any time during the term of this Agreement or
afterwards there should arise any dispute as to the validity, interpretation or
application of any term or condition of this agreement, the Company agrees, upon
written demand by the Employee (and Employee shall be entitled upon application
to any court of competent jurisdiction, to the entry of a mandatory injunction,
without the necessity of posting any bond with respect thereto, compelling the
Company) to promptly provide sums sufficient to pay on a current basis (either
directly or by reimbursing Employee) Employee's costs and reasonable attorneys'
fees (including expenses of investigation and disbursements for the fees and
expenses of experts, etc.) incurred by the Employee in connection with any such
dispute or any litigation, provided that Employee shall repay any such amounts
paid or advanced if Employee is not the prevailing party with respect to at
least one material claim or issue in such dispute or litigation. The provisions
of this Section 19, without implication as to any other section hereof, shall
survive the expiration or termination of this Agreement and Employee's
employment hereunder.
21. Withholding. All payments made to the Employee shall be made net of any
applicable withholding for income taxes and the Employee's share of FICA, FUTA
or other taxes. The Company shall withhold such amounts from such payments to
the extent required by applicable law and remit such amounts to the applicable
governmental authorities in accordance with applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
AVIATION SALES COMPANY, a Delaware
corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chairman and CEO
EMPLOYEE:
/s/ ▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇
Address for Notices:
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