EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement by and between MIDWAY AIRLINES CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXXX X. XXXXXX (the "Executive") is dated
as of July 15, 1996 (the "Agreement");
WHEREAS, the Company desires to continue the employment of the Executive in an
executive capacity because of his experience, ability and knowledge which are
extremely valuable to the Company; and
WHEREAS, the Executive desires that his employment by the Company continue on
the terms and conditions set forth herein, and the Company and the Executive
desire to enter into the Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. Certain Definitions. The "Effective Date" of this Agreement
shall be July 15, 1996 (the "Effective Date").
2. Terms of Employment.
(a) Position and Duties. From and after the Effective Date, the
Executive shall serve in the position of Senior Vice President
and General Counsel and shall perform the attendant
responsibilities thereto as well as such other responsibilities
as the Board of Directors of the Company or the Chief Executive
Officer may from time to time assign.
(b) Excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote his full
attention and time during normal business hours to the business
and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During
the term of Executive's employment it shall not be a violation of
this Agreement for the Executive to (i) serve on charitable or
non-conflicting civic boards or committees and (ii) manage
personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
(c) Compensation
(i) Base Salary. The Executive shall receive an annual base salary
of USD $165,000 paid in equal monthly installments subject to
such withholding and deductions as are required by law or agreed
upon ("Base Salary"). The Company's Compensation Committee shall
review the Executive's Base Salary hereunder from time to time,
but not less frequently than each Company fiscal year and, in its
discretion, may adjust such Base Salary in such amount as it
deems appropriate
for any future year of this Agreement; provided, however, that
the specified rate of Base Salary hereunder shall not be reduced
below $165,000.
(ii) Annual Bonus. In addition to Base Salary, the Executive shall,
in the discretion of the Company's Board of Directors, be
awarded, for each fiscal year during the Employment Period, an
annual bonus in accordance with the Company's bonus plan for
senior managers.
(iii) Benefit Plans. During the Executive's employment, the Executive shall
be eligible for participation in and shall receive all benefits under the
Company's benefit plans provided to other senior executive officers by the
Company.
(iv) Expenses. During the Executive's employment, the Executive shall be
entitled to receive prompt reimbursement for all pre-approved expenses incurred
by the Executive with appropriate receipts to serve as verification in
accordance with the most favorable policies and procedures of the Company.
(v) Auto Allowance. During the term of Executive's employment, the
Executive shall be entitled to payment of an automobile allowance of up to
$500.00 per month for automobile and related expenses ("Auto Allowance").
(vi) Vacation. During the Executive's employment, the Executive shall be
entitled annually to four (4) weeks of paid vacation.
(vii) Stock. As of the date set forth therein, the Executive shall receive a
stock award (the "Stock Award") consisting of Class C Common Stock, $.01 par
value per share, of the Company.
(viii) Airline Travel. During the term of Executive's employment, the
Company will provide Executive and Executive's spouse and dependent children
with free airline travel on flights operated by the Company and/or its
successors, on the same terms established for other senior executives of the
Company (the "Airline Travel Benefit").
3. Termination.
(a) Death. In the event the Executive dies, this Agreement shall
automatically terminate.
1 Disability. If the Board of Directors of the Company determines,
in the reasonable exercise of its discretion, that the Executive,
through physical or mental illness or disability, whether or not
connected to his employment hereunder, has become incapacitated
and is unable for a period of six (6) months during any
continuous period of twelve (12) months, to discharge the duties
and responsibilities of his employment hereunder, the Board of
Directors of the Company shall have the right by written notice
to the Executive to terminate his employment.
(c) Cause. The Company may terminate the Executive's employment for
"Cause." For the purposes of this Agreement, "Cause" means (i) an act or acts of
personal dishonesty taken by the Executive to the detriment of the Company; (ii)
violations by the Executive of the Executive's obligations under Section 2(a) or
Section 6 of this Agreement; provided, that from and after a "Change in Control"
such a violation shall constitute Cause only if demonstrably willful
and deliberate on the Executive's part; (iii) the conviction of the Executive of
a felony; or (iv) the violation of any statutory or common law duty of loyalty
to the Company. For purposes of this provision, "Change in
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Control" shall mean the sale by the Company of all or substantially all of its
assets and business to any person or entity other than Xxxx/Chilmark Fund L.P.,
or any entity under common control therewith, or any entity or person in direct
or indirect control of said Xxxx/Chilmark Fund L.P. (each of such entities and
persons being herein referred to as a "Related Person") or the sale or issuance
of such voting securities of the Company representing votes sufficient to elect
a majority of the Company's Board of Directors to any person or entity other
than a Related Person.
(d) Notice of Termination. Any termination by the Company for Cause shall be
communicated by a Notice of Termination to the Executive given in accordance
with this Agreement. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination provision in
this Agreement relied upon and (ii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date.
(e) Date of Termination; Severance Period. "Date of Termination" means the
date of receipt of the Notice of Termination or any later date specified
therein. "Severance Period" means the longer of (i) the twelve (12) month
period following the Date of Termination and (ii) the period following the Date
of Termination to and including December 31, 1997.
1. Obligations of the Company upon Termination.
(a) Death. In the event the Executive dies at a time when he is
still covered by this Agreement, the Executive's estate shall
receive any benefits pursuant to plans described in Section
2(c)(iii), together with any compensation previously deferred by
the Executive (with accrued interest thereon).
(b) Cause. If the Executive's employment shall be terminated for
Cause, this Agreement shall terminate without further obligations
to the Executive hereunder other than the obligation to pay to
the Executive the Base Salary through the Date of Termination
plus the amount of any compensation previously deferred by the
Executive (together with accrued interest thereon).
(c) Termination Other than for Cause or Disability. If, during the
Employment Period, (x) the Company shall terminate the Executive's employment
other than for Cause, Disability or death, or (y) Executive shall voluntarily
terminate his employment within forty-five (45) days after a Constructive
Termination (as defined below):
(i) the Company shall continue to pay to the Executive the aggregate
amount of his Base Salary and Auto Allowance for the period
commencing on the Date of Termination and ending on the
expiration of the Severance Period in accordance with the
Company's then current payroll schedule; provided, however, that
any such payments shall be reduced by the amount of cash
compensation offered to Executive as part of an offer of
employment made by Xxxxxx Xxxx or any entity directly or
indirectly controlled by Xxxxxx Xxxx or controlled by or under
common control with Xxxx/Chilmark Fund, L.P. (Xxxxxx Xxxx or any
such entity hereinafter a "Xxxx Employer"), provided, that such
offer of employment is generally on the same terms (9other than
geographic location) and at the same or higher rate of
compensation provided for in this Agreement; provided, further,
that if no such
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offer of employment is made to Executive at any time during the
Severance Period, any such payment shall be reduced by the amount of
cash compensation received by Executive from another employer during,
or in consideration for work performed by Executive during, the
Severance Period; provided, however, that the preceding clause shall
in no event impose upon Executive any obligation to seek or accept an
offer of employment from another employer; provided, further, that for
purposes of this Section 5(d)(i), "control" shall mean the power,
directly or indirectly, to direct or cause the direction of the
management and policies of a person or entity, whether through the
ownership of voting securities, by contract or otherwise;
(ii) the Company shall pay to the Executive during the period
commencing on the Date of Termination and ending on the earlier
of (x) the date on which the Executive commences employment with
another employer and (y) the end of the Severance Period an
amount that would permit the Executive to receive medical
benefits comparable to benefits received by the Executive during
the last full fiscal year during the term of Executive's
employment;
(iii) in the case of compensation previously deferred by the Executive, the
Company shall pay to the Executive within thirty (30) days of the Date of
Termination all amounts previously deferred (together with any accrued interest
thereon) and not yet paid by the Company, and any accrued vacation pay not yet
paid by the Company;
(iv) the Company and/or its successors shall continue to provide the Airline
Travel Benefit to the Executive and the Executive's spouse, for such of their
respective lifetimes, and the Executive's dependent children, for so long as
they remain dependent children as such term is used i the airline (non-revenue)
travel industry, except that the same shall be at an "A-3' Priority Level or at
least at the priority level from time to time made available by the Company
and/or its successors to the senior officers (and their family members) of
airlines other than the Company;
(v) the Company shall pay, or reimburse Executive for, the cost of reasonable
and appropriate outplacement services provided through the Severance Period by
an outplacement firm selected by Xxxx/Chilmark Fund, L.P.; and
(vi) the Company will affirm, perform and be responsible for its obligations
under that certain Agreement for Relocation Services, dated August 17, 1995
between the Company and Xxxxxxxxx Relocation Company. As such, the Company will
identify Executive's primary residence in North Carolina as a "Home" under such
Relocation Agreement, and the Company will reimburse or pay Executive for the
reasonable costs of packing and moving Executive's and Executive's family's
household goods from North Carolina, as well as customary closing costs and real
estate commissions payable in connection with the sale of Executive's Home in
North Carolina; provided, however, that in the event of a Change in Control,
this Section 5(b)(vi) shall apply only to Executive's primary residence owned by
Executive and/or Executive's, as the case may be, prior to such Change in
Control.
For purposes hereof, the term "Constructive Termination" shall mean (xx) the
assignment of Executive by the Board of Directors or a superior officer of the
Company, to duties materially inconsistent with the scope of Executive's
position, duties and responsibilities
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as described in this Agreement to the detriment of Executive, or (yy) the
Company's failure to materially comply with any of the provisions of Section
2(c) above.
5. Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation in nay benefit, bonus, incentive or other plan or
program provided by the Company and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any stock option or other
agreements with the Company or any of its affiliated companies.
6. Confidential Information. The Executive shall maintain a
fiduciary duty to the Company for all confidential information,
knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses, which
shall have been obtained by the Executive during the Executive's
employment by the Company or any of its affiliated companies
until such confidential information, knowledge or data become a
matter of public record through disclosure by a person or persons
other than the Executive or his representatives and which does
not involve communication or disclosure, directly or indirectly,
by the Executive or his representatives. The Executive shall not
communicate or disclose any such information, knowledge or data
to anyone other than the Company and those designated by it.
After termination of the Executive's employment with the Company,
the Executive shall return all confidential and proprietary
information in his possession or under his control and shall not,
without the prior written consent of the Company, communicate or
disclose any such information, knowledge or data to anyone other
than the Company and those designated by it.
7. Successors.
(a) 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 shall
inure to thebenefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company to expressly
assume 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; provided however the foregoing shall not prevent the Company
from terminating this Agreement pursuant to Section 3 and/or 4 of this
Agreement. As used in this Agreement, "Company" shall mean the Company as
herein defined and any successor Agreement by operation of law or otherwise.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
wit the laws of the State of North Carolina, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a
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written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: to his address as set forth in the records of the
Company.
If to the Company: Midway Airlines Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
With a copy to: Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
or such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's and/or the Company's failure to insist upon
strict compliance with any provision hereof shall not be deemed to be a
waiver of such provision thereof.
(f) This Agreement, together with the Stock Award, contain the
entire understanding of the Company and the Executive with respect to the
subject matter hereof and supersede and all other agreements, either oral or
written, between the Company and the Executive with respect to the subject
matter hereof.
(g) The Executive and the Company acknowledge that the employment of
the Executive by the Company is "at will"'; provided, that such employment
may be terminated by the Company only in accordance with the terms hereof.
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IN WITNESS WHEREOF, the Executive has hereunder set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
EXECUTIVE
Xxxxxxxx X. Xxxxxx
MIDWAY AIRLEINES CORPORATION
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
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AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment to Employment Agreement (the "Amendment") by and
between MIDWAY AIRLINES CORPORATION, a Delaware corporation (the "Company"),
and Xxxxxxxx X. Xxxxxx (the "Executive"), dated as of January 17, 1997.
WHEREAS, the Company and Executive are party to that certain
Employment Agreement, dated as of July 15, 1996 (the "Employment Agreement")
(all terms capitalized but not otherwise defined herein shall have the
meanings ascribed to them in the Employment Agreement).
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(a) Section 2(c)(vii) of the Employment Agreement is hereby
deleted in its entirety; and
(b) All references in the Employment Agreement to the Stock
Award are hereby deleted in their entirety, and the Stock Award shall no
longer constitute a term or condition of the Employment Agreement or a
benefit afforded to Executive thereunder, and Executive hereby waives all
rights he has or may have to the Stock Award under the Employment Agreement
or any other agreement or commitment, written or oral, relating to the Stock
Award.
Except as specifically amended hereby, the Employment Agreement shall
remain in full force and effect in the form originally executed by the
parties.
Notwithstanding anything to the contrary herein, this Amendment
shall not be effective until the Effective Time as defined in that certain
Agreement and Plan of Merger, dated as of the date hereof, by and among
GoodAero, Inc. and its stockholders, the Company and Xxxx/Chilmark Fund, L.P.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first above written.
EXECUTIVE
/s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
MIDWAY AIRLINES CORPORATION
/s/ Xxxxxx Xxxxxxxx
-------------------------------
By: Xxxxxx Xxxxxxxx
Its: Chief Financial Officer
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