EXHIBIT 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of the 23rd
day of February 2000 (the "Effective Date") by and between FINE AIR SERVICES,
INC., a Florida corporation having its principal offices at 0000 X.X. 00xx
Xxxxxx, Xxxxxxxx 000, Xxxxx, Xxxxxxx 00000 (hereinafter "Fine"), and XXXXXXXXX
X. XXXXXX, an individual residing at 0000 X.X. 000xx Xxxxx, Xxxxx, Xxxxxxx 00000
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed as Chief Operating Officer of Fine
and President and CEO of Arrow Air, Inc., (hereinafter "Arrow") a sister company
engaged in the air cargo business;
WHEREAS, Fine and Arrow have begun the process of merging wherein the
two entities shall become one operating company (hereinafter Fine, Arrow and the
combined entity shall collectively be referred to as the "Company");
WHEREAS, the Company desires to continue the personal services of the
Executive in his current capacities from and after the Effective Date;
WHEREAS, the Executive is willing and able to render services to the
Company on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound thereby, the
parties hereby agree as follows:
1. Nature of Employment.
1.1 Subject to the terms and conditions of this Agreement, the Company
shall, throughout the term of this Agreement, retain the Executive, and the
Executive shall render services to the Company, in the capacities and with the
titles of Chief Operating Officer of Fine and CEO of Arrow Air, Inc.
1.2 In such capacity, the Executive shall have and exercise
responsibility for (a) overseeing and actively participating in all aspects of
Fine's airline operations, and such other similar or related duties customarily
performed by a chief operating officer as may be assigned to the Executive from
time to time by the Chairman of the Board, President or Chief Executive Officer
of Fine or the Board of Directors of Fine (the "Board"); and (b) providing
leadership and direction for Arrow pursuant to policies established by its Board
of Directors.
1.3 Throughout the period of his employment hereunder, the Executive
shall: (a) devote his full business and professional time, attention, knowledge
and skills, faithfully, diligently
and to the best of his ability, to the active performance of his duties and
responsibilities hereunder on behalf of the Company; (b) observe and carry out
such rules, regulations, policies, directions and restrictions as may be
established from time to time by the Boards, including but not limited to the
standard policies and procedures of the Company as in effect from time to time;
and (c) do such traveling at the Company's expense as may reasonably be required
in connection with the performance of such duties and responsibilities;
provided, however, that the Executive shall not be assigned to regular duties
that would reasonably require him to relocate his permanent residence from that
first set forth above.
1.4 Subject to compliance with his covenants and agreements set forth
in Section 1.3 above and his fiduciary duties to the Company as an executive
officer thereof, the Executive may engage (a) in other professional activities,
and (b) in charitable, educational, religious, civic and similar types of
activities (all of which shall be deemed to benefit the Company), speaking
engagements, membership on the board of directors of other organizations, and
similar activities; provided, that the foregoing business and other activities
do not inhibit or prohibit the performance of his duties hereunder or inhibit or
conflict in any way with the businesses of the Company.
2. Term of Employment; Termination.
2.1 Term. Subject to the terms and conditions hereof, the term of the
Executive's employment pursuant to this Agreement (the "Term") shall commence on
the Effective Date and shall continue for a period of three (3) years after the
Effective Date. The Term may be renewed by mutual written agreement of the
Executive and the Company.
2.2 Termination. The Executive's employment under this Agreement may be
terminated upon mutual written agreement of the Company and the Executive, or
under the following circumstances:
a. Death. The Executive's employment under this Agreement
shall terminate automatically upon his death.
b. Disability. If, as a result of the Executive's incapacity
due to physical or mental illness, disability or impairment the Executive shall
have failed to perform all of his duties under this Agreement for a period in
excess of four (4) consecutive months, or in excess of one hundred eighty
non-consecutive days within any period of three hundred sixty five (365) days,
the Company may terminate the Executive's employment under this Agreement for
"Disability." If the Company and the Executive do not agree on whether there
exists a condition constituting a Disability, the determination of a Disability
shall be made by a qualified physician selected and paid for by the Company (and
reasonably acceptable to the Executive), whose determination shall be conclusive
and binding on the Company and the Executive.
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c. Cause. The Company may terminate the Executive's employment
under this Agreement for Cause. For purposes of this Agreement, the term "Cause"
shall mean (i) the willful failure by the Executive to perform his duties under
this Agreement (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness, disability or impairment), after a
demand for performance is delivered to the Executive by the Company specifically
identifying the manner in which the Company believes the Executive has not
performed his duties, and the Executive shall have failed to resume performance
of such duties within thirty (30) days of receiving such demand, (ii) a breach
by the Executive of any of the material covenants and agreements of the
Executive contained in this Agreement, including those provided in Sections 5
and 6 below, which, in any case, is not corrected in all material respects (if
so correctable) within thirty (30) days after written notice of same from the
Company to the Executive; (iii) any breach by the Executive of his fiduciary
duties and obligations to the Company which is not corrected in all material
respects (if so correctable within thirty (30) days after written notice of same
from the Company to the Executive; (iv) conduct constituting fraud or
embezzlement or gross dishonesty by Executive in connection with the performance
of his duties under this Agreement, or a formal charge or indictment of
Executive for or conviction of Executive of a felony or, if it shall adversely
damage or bring into disrepute the business, reputation or goodwill of the
Company, or impair the Executive's ability to perform his duties with the
Company any crime involving moral turpitude.
d. Termination by the Executive. The Executive may terminate
his employment under this Agreement for Good Reason. For purposes of this
Agreement the term "Good Reason" shall mean, without the Executive's express
written consent, the occurrence of any one or more of the following: (i) the
failure by the Company to make any payment to the Executive required to be made
during the Term within thirty (30) days after payment is due, or (ii) the terms
and conditions set forth in Section 4.3(b) of this Agreement become applicable,
or (iii) a breach by the Company of any other material covenant or agreement to
be performed by it hereunder (including the failure to re-appoint the Executive
to the offices described in Section 1.1 of this Agreement or any material
diminution in the duties of the Executive which reduces the scope or importance
of such position) and shall fail to cure or remedy the same within thirty (30)
days after written notice thereof to the Company.
e. Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 2.2(a), above) shall be communicated by written Notice of Termination
to the other party hereto given in accordance with Section 8. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
f. Date of Termination. "Date of Termination" shall mean (i)
if the Executive's employment is terminated as a result of death, the date of
his death, (ii) if the Executive's employment is terminated for Disability, the
date the Notice of Termination is given,
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(iii) if the Executive's employment is terminated by the Company for Cause or by
the Executive for Good Reason, the date specified in the Notice of Termination
after the expiration of any applicable cure periods, and (iv) if the Executive's
employment is terminated by the Company or the Executive for any other reason,
the date on which a Notice of Termination is given.
Compensation and Benefits.
3.1 Base Salary. As compensation for his services to be rendered
hereunder, the Company shall pay to the Executive, throughout the Term of this
Agreement, a base salary of Two Hundred Twenty-Five Thousand ($225,000) Dollars
per annum (the "Base Salary"), payable in periodic installments in accordance
with the standard payroll practices of the Company in effect from time to time,
but not less than twice each month. Notwithstanding the foregoing, the Base
Salary may, by action and in the discretion of the Board or any compensation
committee thereof, be increased at any time or from time to time.
3.2 Bonuses. In addition to the Base Salary, the Executive shall be
entitled to receive from time to time such annual bonus payments as the Board or
any compensation committee thereof may determine in its discretion.
3.3 Fringe Benefits. The Company shall also make available to the
Executive, throughout the period of his employment hereunder, such benefits and
perquisites as are generally provided by the Company to its other senior
management employees, including but not limited to eligibility for participation
in any group life, medical, health, dental, disability or accident insurance,
pension plan, 401(k) savings and investment plan, profit-sharing plan, employee
stock purchase plan, incentive compensation plan or other such benefit plan or
policy, if any, which may presently be in effect or which may hereafter be
adopted by the Company for the benefit of its employees generally, in each case
subject to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement.
3.4 Expenses. During the Term, the Company shall reimburse the
Executive, reasonably promptly after presentment by the Executive to the Company
of appropriate receipts and vouchers therefor and related information in such
form and detail as the Company may reasonably request, for any reasonable
out-of-pocket business expenses incurred by the Executive in connection with the
performance of his duties and responsibilities hereunder in accordance with the
policies and procedures of the Company and its subsidiaries for the
reimbursement of business expenses.
3.5 Vacation. The Executive shall be entitled to take, from time to
time, normal and reasonable vacations with pay, consistent with the Company's
standard policies and procedures in effect from time to time, at such times as
shall be mutually convenient to the Executive and the Company, and so as not to
interfere unduly with the conduct of the business of the Company.
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3.6 Stock Options. On the IPO Effective Date, the Company shall grant
to the Executive pursuant to the Incentive Plan options to purchase (the
"Options") a maximum aggregate of Thirty Thousand (30,000) shares of Common
Stock (as such number may thereafter be adjusted in accordance with the
provisions of the Incentive Plan)(the "Option Shares") at an exercise price per
share equal to the IPO Price (the "Exercise Price"). The Options shall be
granted subject to all of the terms and conditions of the Incentive Plan and the
following terms and conditions: (i) the Options shall have a term expiring on
December 31, 2005 (the "Option Expiration Date"); (ii) subject to termination of
the Options prior to vesting as provided in clause (iii) below, the Options
shall vest and become exercisable (A) to the extent of the first 33-1/3% of the
Option Shares, one year after the Effective Date, (B) to the extent of an
additional 33-1/3% of the Option Shares, two years after the Effective Date, and
(C) with respect to the balance of the Option Shares, three years after the
Effective Date, except that all unvested options shall immediately vest upon
termination of Executive's employment for any reason other than for cause; and
(iii) to the extent not previously vested and exercised pursuant to their terms,
the Options shall terminate upon the earlier to occur of: (A) one year after the
Date of Termination of the Executive's employment by reason of his death, (B)
six months after the Date of Termination of the Executive's employment by the
Company without Cause or for Disability or by the Executive for Good Reason, (C)
on the Date of Termination of the Executive's employment by the Company for
Cause or by the Executive other than for a Good Reason, and (D) the Option
Expiration Date.
4. Compensation Upon Termination.
4.1 Death. If the Executive's employment is terminated by reason of his
death, the Company shall pay to such person as the Executive shall have
designated in a notice filed with the Company, or, if no such person shall have
been designated, to his estate, (i) any unpaid amounts of his Base Salary
accrued prior to the date of his death and (ii) the Executive's Base Salary for
a period of four (4) months after the date of his death. Upon making such
payments, the Company shall have no further liability hereunder; provided, that
the Executive's spouse, beneficiaries or estate, as the case may be, shall be
entitled to receive any amounts then payable pursuant to any pension or employee
benefit plan, life insurance policy or other plan, program or policy then
maintained or provided by the Company to the Executive in accordance with the
terms thereof.
4.2 Cause; Disability; Other than for Good Reason. If the Executive's
employment shall be terminated by the Company for Cause or Disability or by the
Executive for any reason other than a Good Reason, the Company shall pay the
Executive any unpaid amounts of his Base Salary accrued prior to the Date of
Termination. Upon making such payment, the Company shall have no further
liability hereunder; provided, that the Executive shall be entitled to receive
any amounts then payable pursuant to any pension or employee benefit plan, life
insurance policy or other plan, program or policy then maintained or provided by
the Company to the Executive in accordance with the terms thereof.
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4.3 Good Reason; Other than Cause or Disability.
(a) Prior to Change in Control. If the Company shall terminate
the Executive's employment other than as a result of his death or for Cause or
Disability, or the Executive shall terminate his employment for Good Reason,
then the Company shall pay the Executive, (A) any unpaid amounts of his Base
Salary accrued prior to the Date of Termination, and (B) in lieu of any further
salary or bonus payments to the Executive for periods subsequent to the Date of
Termination as a severance benefit to the Executive, one (1) year his Base
Salary, and (C) any amounts then payable pursuant to any pension or employee
benefit plan, life insurance policy or other plan, program or policy then
maintained or provided by the Company to the Executive in accordance with the
terms thereof.
(b) Following Change in Control. If, following a Change in
Control of the Company, the Executive's employment shall be terminated other
than as a result of his death or for Cause or Disability, and 1) the Executive
shall terminate his employment for Good Reason pursuant to Section 2.2, or 2)
his place of employment is relocated more than 100 miles, or 3) the Executive is
offered a less favorable position (one in which the Executive will not continue
to perform substantially the same functions for the Company) or 4) the Executive
is offered less favorable remuneration (including annual base salary, bonus and
fringe benefits), then the Executive shall be entitled to (A) any unpaid amounts
of his Base Salary accrued prior to the Date of Termination, and (B) in lieu of
any further salary or bonus payments to the Executive for periods subsequent to
the Date of Termination as a severance benefit to the Executive, an amount equal
to one and a half years Base Salary at the rate in effect at the time Notice of
Termination is given (or the Date of Termination where no Notice of Termination
is required hereunder), and (C) any amounts then payable pursuant to any pension
or employee benefit plan, life insurance policy or other plan, program or policy
then maintained or provided by the Company to the Executive in accordance with
the terms thereof.
(c) Change in Control. For purposes of this Agreement, the
term "Change in Control" shall mean the approval by the shareholders of the
Company of a reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case with respect to which
persons who were shareholders of the Company immediately prior to such
reorganization, merger, consolidation or other corporate transaction or
transactions do not, immediately thereafter, own more than 50% of the combined
voting power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company's then outstanding voting
securities, or a liquidation, dissolution of the Company or the sale of all or
substantially all of the assets of the Company (unless such reorganization,
merger, consolidation or other corporate transaction, liquidation, dissolution
or sale is subsequently abandoned). Both the Executive and the Company agree
that Change of Control shall not mean the merger, reorganization, consolidation
or other form of corporate transaction between Fine and Arrow and any such
transaction shall have no effect on this Agreement.
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5. Restrictive Covenants.
5.1 The Executive hereby acknowledges and agrees that (i) the business
contacts, customers, suppliers, technology, product designs and specifications,
know-how, trade secrets, marketing techniques, promotional methods and other
aspects of the business of the Companies have been of value to the Companies and
will be of value to the Companies, and have provided the Company and will
hereafter provide the Company with substantial competitive advantage in the
operation of its business, and (ii) the Executive has and will continue to have
detailed knowledge and possesses and will possess confidential information
concerning the business and operations of the Company.
5.2 Unless otherwise approved in writing by Company or their Chairman
of the Board after full disclosure by the Executive to Company's Board of
Directors of all relevant facts and circumstances, the Executive shall not,
directly or indirectly, for the Executive or through or on behalf of any other
person or entity, at any time during the "Restrictive Period" (as defined in
clause (b) below):
(a) divulge, transmit or otherwise disclose or cause to be
divulged, transmitted or otherwise disclosed, any clients or customer lists,
technology, know-how, trade secrets, marketing techniques, contracts or other
confidential or proprietary information of the Company of whatever nature,
whether now existing or hereafter created or developed (provided, however, that
for purposes hereof, information shall not be considered to be confidential or
proprietary if (i) the information, and its relevance in the applicable
instance, is a matter of common knowledge or public record, (ii) the
information, and its relevance in the applicable instance, is generally known in
the industry, or (iii) the information is disclosed to Executive after
termination of his employment by another person not prohibited from making such
disclosure, (iv) the information is required to be disclosed by law pursuant to
court order or subpoena, or (v) the Executive can demonstrate that such
information, and its relevance in the particular instance, was already known to
the recipient thereof other than by reason of any breach of any obligation under
this Agreement or any other confidentiality or non-disclosure agreement); and/or
(b) at any time during the period commencing on the date
hereof through and including the date which shall be one (1) year following the
last day of the Term, unless the Executive's employment with the Company shall
be terminated by the Company without Cause or by the Executive for Good Reason
(the "Restrictive Period"), invest, carry on, engage or become involved, either
as an employee, agent, advisor, officer, director, stockholder (excluding
ownership of not more than 5% of the outstanding shares of a publicly held
corporation if such ownership does not involve managerial or operational
responsibility), manager, partner, joint venturer, participant or consultant in
any business enterprise (other than the Company or any of their respective
Subsidiaries, affiliates, successors or assigns) which derives 10% or more of
its consolidated revenues from providing air freight transportation services
(the "Company Business").
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5.3 It is recognized and hereby acknowledged by the Company and the
Executive that a breach by the Executive of any of the agreements contained in
this Section 5 may cause irreparable harm or damage to the Company, or its
subsidiaries, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive and the Company agree that the Company and
any of its subsidiaries shall be entitled to seek and obtain injunctive and/or
other equitable relief to require specific performance of or prevent, restrain
and/or enjoin a breach of the provisions of this Section 5 by the Executive or
his associates, affiliates, partners or agents, in any such case without the
necessity of proving actual damages or posting bond, and that such right to an
injunction shall be cumulative and in addition to whatever other remedies the
Company may possess.
5.4 Upon the termination of the Executive's employment with the
Company, the Executive shall immediately surrender and deliver to the Company
all notes, drawings, diagrams, models, prototypes, lists, books, records,
documents and data of every kind or description, in whatever written or other
media (including, without limitation, electronic, tape, or other form of
storage) relating to or connected with the business contacts, client or customer
lists, technology, know-how, trade secrets, marketing techniques, contracts or
other confidential or proprietary information of the Company, its business, its
properties, or its customers referred to in Section 5.2(b) above.
6. Inventions; Intellectual Property.
6.1 The Executive shall promptly communicate to the Company and
disclose to the Company in such form as the Company requests from time to time,
all drawings, sketches, models, records, information, details and data (in
whatever media the same may be created or recorded including, without
limitation, print, tape, electronic, or otherwise) pertaining to all ideas,
processes, trademarks, inventions, improvements, discoveries and improvements,
product designs and specifications, and other intellectual property, whether
patented or unpatented, and copyrightable or uncopyrightable, made, conceived,
developed, acquired or implemented by the Executive, solely or jointly, during
the term of this Agreement (the "Development Term"), whether or not conceived
during regular working hours through the use of Company time, material or
facilities or otherwise (each of the foregoing hereinafter referred to,
individually and collectively, as a "Development"). The Executive hereby
assigns, transfers, conveys and sells to the Company all right, title and
interest in and to all Developments, whether now existing or hereafter existing
during the Development Term, and acknowledges that the same, whether now
existing or hereafter existing during the Development Term, are the sole and
exclusive property of the Company for which the Executive is being adequately
compensated hereunder. At any time and from time to time, upon the request of
the Company and at its expense, the Executive will execute and deliver to the
Company any and all applications, assignments, instruments, documents and
papers, give evidence and do any and all other acts which, in the opinion of the
Company, are or may be necessary or desirable to document such transfer or to
enable the Company to file and prosecute applications for and to acquire,
maintain
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and enforce any and all patents, trademark or tradename registrations,
copyrights or other rights under United States, foreign, state or local law with
respect to any such Developments or to obtain any extension, validation,
reissue, continuance, division or renewal of any of the same, in whole or in
part, and otherwise to establish, protect and enforce the Company's rights in
and to such intellectual property.
6.2 Notwithstanding anything to the contrary contained in this
Agreement, the foregoing Section 6.1 shall only apply and be effective to the
extent permitted under applicable law. In this regard, the provisions of Section
6.1 of this Agreement which provide that the Executive shall assign or offer to
assign any of the Executive's rights in an invention to the Company shall not
apply to any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
the Executive's own time, unless (a) the invention relates (i) directly to the
business of the Company, or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the invention results from any work
performed by the Executive for the Company.
7. Assignment.
7.1 This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive other
than by will or the laws of descent and distribution. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of and be enforce
able by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees. If the
Executive should die while any amounts would still be payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's personal or legal
representatives or, if there be no such persons, the Executive's estate.
7.2 This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns. The Company will require any
successor (by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to the Executive, to assume expressly
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company and any
successor to its business and/or assets as aforesaid which executes and delivers
an assumption and agreement provided for in this Section 7.2 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law, or otherwise.
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8. Notices.
Any notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been given when delivered personally, one (1) day after being sent by recognized
overnight courier service will all charges prepaid or charged to the sender's
account, or three (3) days after being mailed by certified mail, return receipt
requested, addressed to the party being notified at the address of such party
first set forth above, or at such other address as such party may hereafter have
designated by notice; provided, however, that any notice of change of address
shall not be effective until its receipt by the party to be charged therewith.
9. General.
9.1 Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith. Any waiver or
amendment shall only be applicable in the specific instance, and shall not
constitute or be construed as a waiver or amendment in any other or subsequent
instance. No failure or delay on the part of either party in respect of any
enforcement of obligations hereunder shall in any manner affect such party's
right to seek or effect enforcement at any other time or in respect of any other
required performance.
9.2 The captions and Section headings used in this Agreement are
for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
9.3 This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of Florida
applicable to contracts entered into and performed wholly within Florida.
9.4 The Company may withhold from any amounts payable under this
Agreement all Federal, State or other taxes as legally shall be required.
9.5 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original hereof, but all of which
together shall constitute one and the same instrument.
9.6 This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
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9.7 If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require; and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
FINE AIR SERVICES, INC.
/S/ XXXXX X. FINE
-----------------------------
By: Xxxxx X. Fine
Title: President
XXXXXXXXX X. XXXXXX
/S/ XXXXXXXXX X. XXXXXX
-----------------------------
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