EXHIBIT 10.88
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the 13th day of March, 1998 by and between MESA AIR GROUP,
INC., a Nevada corporation (the "Company"), and XXXXXXXX X. XXXXXXXX, residing
at Xxxxxxxx 000, Xxxxxxxxx Xxxxxxx, 0000 Xxxxxxxxx, Xxxxxxx (the "Executive").
W I T N E S S E T H:
1. EMPLOYMENT
The Company hereby employs the Executive, and the Executive
hereby accepts such employment, upon the terms and subject to the conditions set
forth in this Agreement.
2. TERM
Subject to the provisions for termination as hereinafter
provided, the term of employment under this Agreement shall begin on the date
hereof and shall continue through the 13th day of March, 2001, provided,
however, that if the Company fails to give one hundred eighty days written
notice prior to the date of termination, the term of this Agreement shall
automatically be extended for an additional one hundred eighty day period.
3. COMPENSATION
3.1 Base Salary. The Company shall pay to the Executive as
basic compensation for all services rendered by the Executive during the term of
this Agreement a basic annualized salary of $200,000 per year, or such other sum
in excess of that amount as the parties may agree on from time to time or as
provided in the last sentence of this Section 3.1 (as in effect from time to
time, the "Base Salary"), payable bi-weekly or in other more frequent
installments, as determined by the Company. The Board of Directors shall have no
authority to reduce the Executive's Base Salary in effect from time to time. In
addition, the Board of Directors, in its discretion, may award a bonus or
bonuses to the Executive in addition to the bonuses provided for in Section 3.2,
provided, however, such discretionary bonus shall not be included in the
definition of "Base Salary." Annually, the Board of Directors shall review the
Base Salary and increase it as it deems appropriate.
3.2 Bonuses. In addition to the Base Salary to be paid
pursuant to Section 3.1, the Company shall pay the Executive as incentive
compensation the annual bonus, to the extent earned, as specified in this
Section 3.2. A "Minimum Bonus" will be paid to the Executive if Company achieves
any positive growth in the Company's earnings per share. A "Threshold Bonus"
will be paid to the Executive if the Company achieves earnings per share growth
of at least 7% but less than 13%. A "Target Bonus" will be paid to the Executive
if the Company achieves earnings per share growth of at least 13% but less than
18%. A "Maximum Bonus" will be paid to the Executive if the Company achieves
earnings per share growth of at least 18%. The Minimum Bonus will be $52,500,
the Threshold bonus will be $105,000, the Target Bonus will be $210,000 and the
Maximum Bonus will be $420,000. Earnings per share growth will be based on the
earnings per share for the year in which the bonus is deemed to be earned and
compared against the earning per share for the prior year as each are stated in
the Company's then latest applicable audited financial statements. In the event
the Base Salary is increased, the Minimum Bonus, Threshold Bonus, Target Bonus
and Maximum Bonus will be increased by the same percentage as the increase in
the Base Salary. The annual bonus shall be deemed to have been earned as of the
last day of the Company's fiscal year to which the bonus relates. Except as
otherwise provided herein, such annual bonus shall be paid no later than 90 days
after the close of such fiscal year.
3.3 Stock Option Award. Upon the execution of this Agreement,
the Company shall grant the Executive an option (the "Initial Option") under a
plan, the underlying shares of Common Stock of which will be registered on Form
S-8 or any successor form, to purchase 1,000,000 shares of the Company's common
stock (the "Common Stock") at an exercise price of Closing Price on March 13,
1998. On April 1 of each year (beginning April 1, 1999) during the initial term
of this Agreement, the Company will grant the Executive an option (each an
"Annual Option," collectively the "Annual Options" and together with the Initial
Option, the "Executive's Options") to purchase 150,000 shares of Common Stock at
the average sales price per share of Common Stock on the stock exchange or stock
market on which shares of Common Stock are then listed or admitted for trading
on the applicable April 1st. The Initial Option will be for a term of ten years
from the date of grant and, except as otherwise provided (but in no event shall
the vesting schedule be more restrictive than as set forth in this Agreement),
shall vest one-third on April 1st of the year of the grant, one-third on the
first anniversary of the date of the initial vesting and one-third on the second
anniversary of the initial vesting. The Initial Option, to the extent it is
vested, shall be exercisable until the time stated in the agreement granting the
Initial Option but in no event shall it terminate earlier than the earlier of
(i) ten years from the date of grant or (ii) the ninety days after the date the
Executive is no longer employed with the Company or is no longer a director of
the Company, whichever is later. The Annual Options will be for a term of ten
years from the date of grant and, except as otherwise provided (but in no event
shall the vesting schedule be more restrictive than as set forth in this
Agreement), shall vest one-third on the first anniversary of the date of the
grant, and one-third on the second anniversary of the grant, and one-third on
the third anniversary of the grant. The granting of the Executive's Options will
be made subject to Stockholder approval. The Company shall submit the granting
of the Executive's Options to the stockholders of the Company no later than June
30, 1998 and shall solicit proxies in favor of the granting of the Executive's
Options. In the event Stockholder approval is not received by July 31, 1998 or
all options to be granted pursuant to this Section 3.3 are not approved by the
stockholders, the Company will issue stock appreciation rights in an amount
necessary to provide the same level of compensation as would have been provided
by the Executive's Options.
3.4 Other Benefits. The Executive shall be entitled to such
fringe benefits including, but not limited to, medical and other insurance
benefits (for the Executive and his family), airline travel benefits on the
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Company's airlines, as may be provided from time to time by the Company to other
senior officers the Company. The Company will use its commercially reasonable
efforts to obtain from other airlines the same benefits for the Executive as the
Company provides to chief executive officers of other airlines.
3.5 Moving and Living Expenses. The Company will pay for all
reasonable and customary expenses in accordance with Company policy incurred by
the Executive in relocating and moving to Farmington, New Mexico and a temporary
leasing allowance of $1,500 per month for a six month period. If at any time a
permanent location is established for the Executive's office outside of
Farmington, New Mexico, the Company will pay reasonable and customary expenses
in accordance with Company policy incurred in relocating to such new location.
3.6 Reimbursement. The Company shall reimburse the Executive,
in accordance with the Company's policies and practices for senior management,
for all reasonable expenses incurred by the Executive in the performance of the
Executive's duties under this Agreement.
3.7 Other Incentive and Benefit Plans. The Executive shall be
eligible to participate, in accordance with the terms of such plans as they may
be adopted, amended and administered from time to time, in incentive, bonus,
benefit or similar plans, including without limitation, any stock option, bonus
or other equity ownership plan, any short, mid or long term incentive plan and
any other bonus, pension or profit sharing plans established by the Company from
time to time.
3.8 Life and Disability Insurance. The Company shall
immediately purchase and maintain during the term of this Agreement or any
renewal or extension thereof a term life insurance policy on the Executive's
life in the face amount of $750,000. The life insurance policy shall be payable
to a beneficiary designated by the Executive from time to time. The Company
shall also immediately purchase and maintain during the term of this Agreement,
a disability insurance policy in the face amount of at least $410,000. The face
amount of such policies will be increased proportionally with any increase in
the Base Salary. The Company shall maintain the policies in full face value and
effect without decrease in the benefit and pay the premiums during the terms of
this Agreement and any renewals or extensions hereof. The Executive shall have
the right of ownership of said policy and to continue to maintain said insurance
and be responsible for the satisfaction of premiums after the termination of
this Agreement.
4. DUTIES
The Executive is engaged as the Chief Executive Officer of the
Company and initially shall be elected as a director of the Company. During the
term of this Agreement, the Company shall use its good-faith efforts to cause
the Board of Directors of the Company to include the Executive as a nominee and
cause his election to the Board of Directors of the Company. The Executive shall
report directly to the Board of Directors, and all other officers and employees
of the Company shall report either directly or indirectly to the Executive and
no such other officer or employee shall report directly to the Board of
Directors. The Executive's duties and responsibilities shall be commensurate
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with those customarily associated with the chief executive of a corporation
comparable to the Company, including, without limitation, (a) general executive
responsibility for the Company's over-all operations; (b) the development and
implementation of the long-term objectives and a long-term strategic plan of the
Company; and (c) together with the assistance of appropriate financial staff and
operating management, the preparation and implementation of the Company's annual
operating budget.
5. VACATIONS AND DAYS OFF
The Executive shall be entitled to vacations with pay and to
such personal and sick leave with pay in accordance with the policy of the
Company as may be established from time to time by the Company and applied to
other senior officers of the Company. In no event shall the Executive be
entitled to fewer than four weeks' annual vacation. Unused vacation days may be
carried over from one year to the next for a period of up to one year. Any
vacation days which remain unused on the first anniversary of the end of the
fiscal year to which they originally related shall expire and shall thereafter
no longer be useable by the Executive.
6. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
6.1 Death. If the Executive dies during the term of the
Executive's employment, the Company shall pay to the estate of the Executive
within 30 days after the date of death such Base Salary and any cash bonus
compensation earned pursuant to the provisions of this Agreement or any
incentive compensation plan then in effect but not yet paid, as would otherwise
have been payable to the Executive up to the end of the month in which the
Executive's death occurs. After receiving the payments provided in this Section
6.1, the Executive and the Executive's estate shall have no further rights under
this Agreement (other than those rights already accrued).
6.2 Disability. (i) During any period of disability, illness
or incapacity during the term of this Agreement which renders the Executive at
least temporarily unable to perform the services required under this Agreement,
the Executive shall receive the Base Salary payable under Section 3.1 of this
Agreement plus any cash bonus compensation earned pursuant to the provisions of
this Agreement or any incentive compensation plan then in effect but not yet
paid, less any cash benefits received by him under any disability insurance
carried by or provided by the Company. Upon the Executive's "Permanent
Disability" (as defined below), which Permanent Disability continues during the
payment periods specified herein, the Company shall pay to the Executive for the
period of time specified below an amount (the "Disability Payment") equal to the
(i) sum of (A) the Base Salary paid in the same bi-weekly or other period
installments as in effect at the time of the Executive's Permanent Disability
plus (B) an amount equal to the Minimum Bonus payable to the Executive under
Section 3.2 of this Agreement or the minimum amount of any similar bonus or
incentive plans or programs then in effect if greater than the Minimum Bonus in
respect of the fiscal year during which the Executive's Permanent Disability
occurred, which amount, in any event, shall be paid in pro rata equal bi-weekly
installments over the period of time specified below (ii) reduced by the amount
of any monthly payments under any policy of disability income insurance paid for
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by the Company which payments are received during the time when any Disability
Payment is being made to the Executive following the Executive's Permanent
Disability. For so long as the Executive's Permanent Disability continues, the
Disability Payment shall be paid by the Company to the Executive in equivalent
installments at the same time or times as would have been the case for payment
of Base Salary over the unexpired term of this Agreement if the Executive had
not become permanently disabled and had remained employed by the Company
hereunder, but in no case shall such period exceed 24 months. The Executive may
be entitled to receive payments under any disability income insurance which may
be carried by or provided by the Company from time to time. Upon "Permanent
Disability' (as that term is defined in Section 6.2(ii) below) of the Executive,
except as provided in this Section 6.2 all rights of the Executive under this
Agreement (other than rights already accrued or the Executive's rights under
Section 3.8 shall terminate).
(ii) The term "Permanent Disability" as used in this Agreement
shall mean, the inability of the Executive, as determined by the Board of
Directors of the Company, by reason of physical or mental disability to perform
the duties required of him under this Agreement for a period of one hundred and
eighty (180) days in any 210-day period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or in capacity is due to the same or related cause
and commences less than three months from the ending of the previous period of
disability. Upon such determination, the Board of Directors may terminate the
Executive's employment under this Agreement upon ten (10) days' prior written
notice. If any determination of the Board of Directors with respect to permanent
disability is disputed by the Executive, the parties hereto agree to abide by
the decision of a panel of three physicians. The Executive and Company shall
each appoint one member, and the third member of the panel shall be appointed by
the other two members. The Executive agrees to make himself available for and
submit to examinations by such physicians as may be directed by the Company.
Failure to submit to any such examination shall constitute a breach of a
material part of this Agreement.
7. OTHER TERMINATIONS
7.1 By the Executive. (i) The Executive may terminate the
Executive's employment hereunder upon giving at least ninety (90) days' prior
written notice. In addition, the Executive shall have the right to terminate the
Executive's employment hereunder on the conditions and at the times provided for
in Section 7.4 of this Agreement.
(ii) If the Executive gives notice pursuant to the first
sentence of Section 7.1(i) above, the Company shall have the right (but not the
obligation) to relieve the Executive, in whole or in part, of the Executive's
duties under this Agreement, or direct the Executive to no longer perform such
duties, or direct that the Executive should no longer report to work, or any
combination of the foregoing. In any such event, the Executive shall be entitled
to receive only the Base Salary not yet paid, as would otherwise have been
payable to the Executive up to the end of the month specified as the month of
termination in the termination notice. If the Executive gives notice pursuant to
the first sentence of Section 7.1 (i) above but specifies a termination date in
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excess of ninety (90) days from the date of such notice, the Company shall have
the right (but not the obligation) to accelerate the termination date to any
date prior to the date specified in the notice that is in excess of ninety (90)
days from the date of the notice, and the Company shall have the right (but not
the obligation) to relieve the Executive, in whole or in part, of the
Executive's duties under this Agreement, or direct the Executive to no longer
perform such duties, or direct that the Executive should no longer report to
work, or any combination of the foregoing; provided, however, that in any such
event the Executive shall be entitled to receive the Base Salary, as would
otherwise have been payable to the Executive up to the end of the month of the
termination date properly selected by the Company. If the Executive gives notice
pursuant to the first sentence of Section 7.1 (i), upon receiving the payments
provided for under this Section 7.1, all rights of the Executive under this
Agreement (other than rights already accrued or the Executive's rights under
Section 3.8) shall terminate.
7.2 Termination for "Good Cause." (i) Except as otherwise
provided in this Agreement, the Company may terminate the employment of the
Executive hereunder only for "good cause," which shall mean the termination of
employment of Employee by the Board because of Employee's personal dishonesty,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties (including failure to travel to the
Company's headquarters to the extent necessary to complete his duties), willful
violation of any material law, rule or regulation resulting in the Company's
detriment or reflecting upon the Company's integrity (other than traffic
infractions or similar minor offenses) or a material breach by the Employee of
the terms of this Agreement and failure to cure such breach within thirty (30)
days after receipt of written notice from the Company specifying the nature of
such breach or to pay compensation to the Company deemed reasonable by the
Company if the breach cannot be cured. For purposes of this Agreement,
Employee's termination of employment shall not be considered to be a Termination
for Cause unless and until there shall have been delivered to the Employee a
copy of the resolution, duly adopted by the affirmative vote of not less than
seventy-five percent (75%) of the entire membership of the Board at a meeting
called and held for that purpose after reasonable notice to Employee and an
opportunity for him, together with his counsel, to be heard, finding that, in
the good faith opinion of the Board, Employee is guilty of misconduct of the
type described in this Section, and specifying the particulars thereof in detail
which determination shall be subject to a complete and de novo review as to the
reasonableness and good faith.
(ii) If the employment of the Executive is terminated for good
cause under Section 7.2(i) of this Agreement, the Company shall pay to the
Executive any Base Salary earned prior to the effective date of termination but
not yet paid and any cash bonus compensation earned pursuant to the provisions
of this Agreement or any incentive compensation plan then in effect but not paid
to the Executive prior to the effective date of such termination. Under such
circumstances, such payments shall be in full and complete discharge of any and
all liabilities or obligations of the Company to the Executive hereunder, and
the Executive shall be entitled to no further benefits under this Agreement
(other than rights already accrued or the Executive's rights under Section 3.8).
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(iii) Termination of the employment of the Executive other
than as expressly specified above in Section 7.2(i) for good cause, shall be
deemed to be a termination of employment "Without Good Cause."
7.3 Termination Without Good Cause. (i) Notwithstanding any
other provision of this Agreement, the Company shall have the right to terminate
the Executive's employment Without Good Cause pursuant to the provisions of this
Section 7.3. If the Company shall terminate the employment of the Executive
Without Good Cause effective on a date earlier than the termination date
provided for in Section 2 (with the effective date of termination as so
identified by the Company being referred to herein as the "Accelerated
Termination Date"), the Executive, shall receive a lump sum cash payment equal
to a sum of (1) the number of years (or fractions thereof) remaining in the then
unexpired term of this Agreement or two, whichever is greater, multiplied by (A)
the Base Salary, times the number of years plus (B) an amount of cash equal to
the Target Bonus payable to the Executive under Section 3.2 of this Agreement or
the minimum amount of any similar bonus or incentive plans or programs then in
effect if greater than the Target Bonus in respect of the fiscal year during
which the Executive's termination Without Good Cause occurs plus (C) any other
cash or other bonus compensation earned prior to the date of such termination
pursuant to the terms of all incentive compensation plans then in effect other
than any such plan relating to annual incentive cash bonuses or any similar
bonus or incentive plans or programs then in effect; and (2) the additional
payments necessary to discharge certain tax liabilities (the "Gross Ups"), as
the term is defined in Section 11 of this Agreement, provided that,
notwithstanding such termination of employment, the Executive's covenants set
forth in Section 9 are intended to and shall remain in full force and effect and
provided further that in the event of such termination, the Company shall have
the right (but not the obligation) to relieve the Executive, in whole or in
part, of the Executive's duties under this Agreement, or direct the Executive to
no longer perform such duties, or direct that the Executive no longer be
required to report to work, or any combination of the foregoing.
(ii) The parties agree that, because there can be no exact
measure of the damage that would occur to the Executive as a result of a
termination by the Company of the Executive's employment Without Good Cause, the
payments and benefits paid and provided pursuant to this Section 7.3 shall be
deemed to constitute liquidated damages and not a penalty for the Company's
termination of the Executive's employment Without Good Cause.
7.4 Termination by Executive For Good Reason. (i) The
Executive shall be entitled to terminate his employment hereunder for Good
Reason within one-year of the occurrence of an event constituting Good Reason.
For purposes of this Agreement, "Good Reason" shall mean the occurrence of any
of the following circumstances without the Executive's consent: (1) assignment
of the Executive to any duties substantially inconsistent with his position or
duties contemplated by this Agreement or a substantial reduction of his duties
contemplated by this Agreement; (2) the removal of any titles of the Executive
specified in Section 4 of this Agreement; (3) the failure of the Company to
include the Executive as a nominee for the Board of Directors of the Company in
its proxy for any meeting of the shareholders of the Company where directors are
elected (other than a meeting where the Executive's director's position is not
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up for election as a result of a classified board or otherwise; (4) the failure
of the Executive to be reelected to the Board of Directors of the Company; (5)
any breach of the Company's obligation under this Agreement or any failure by
the Company to carry out any of its material obligations hereunder, and the
failure to cure such breach or failure within seven days after written notice of
such breach or failure has been delivered to the Company by the Executive; (6) a
Change of Control (as hereinafter defined); or (7) the relocation of the
Executive or his office, facilities, personnel, or equipment; provided however,
it shall not constitute "Good Reason" if the Executive or his office,
facilities, personnel, or equipment are relocated to any future location of the
Company's corporate headquarters and the relocated corporate headquarters is in
a metropolitan area with a population of at least 1,000,000 people.
(ii) For purposes of this Agreement, a "Change in Control"
shall mean the first to occur of:
(1) a change in control of the Company of a
nature that is required, pursuant to the
Securities Exchange Act of 1934 (the "1934
Act"), to be reported in response to Item
1(a) of a Current Report on Form 8-K or Item
6(e) of Schedule 14A under the 1934 Act (in
each case under this Agreement, references
to provisions of the 1934 Act and the rules
and regulations promulgated thereunder being
understood to refer to such law, rules and
regulations as the same are in effect on
April 1, 1998); or
(2) the acquisition of "Beneficial Ownership"
(as defined in Rule 13d-3 under the 0000
Xxx) of the Company's securities comprising
25% or more of the combined voting power of
the Company's outstanding securities by any
"person" (as that term is used in Sections
13(d) and 14(d)(2) of the 1934 Act and the
rules and regulations promulgated
thereunder, but not including any trustee or
fiduciary acting in that capacity for an
employee benefit plan sponsored by the
Company) and such person's "affiliates" and
"associates" (as those terms are defined
under the 1934 Act), but excluding any
ownership by the Executive and his
affiliates and associates; or
(3) the failure of the "Incumbent Directors" (as
defined below) to constitute at least a
majority of all directors of the Company
(for these purposes, "Incumbent Directors"
means individuals who were the directors of
the Company on March 13, 1998, and, after
his or her election, any individual becoming
a director subsequent to March 13, 1998,
whose election, or nomination for election
by the Company's stockholders, is approved
by a vote of at least two-thirds of the
directors then comprising the Incumbent
Directors, except that no individual shall
be considered an Incumbent Director who is
not recommended by management and whose
initial assumption of office as a director
is in connection with an actual or
threatened "election contest" relating to
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the "election of directors" of the Company,
as such terms are used in Rule 14a-11 of
Regulation 14A under the 0000 Xxx); or
(4) the closing of a sale of all or
substantially all of the assets of the
Company;
(5) the Company's adoption of a plan of
dissolution or liquidation; or
(6) the closing of a merger or consolidation
involving the Company in which the Company
is not the surviving corporation or if,
immediately following such merger or
consolidation, less than seventy-five
percent (75%) of the surviving corporation's
outstanding voting stock is held or is
anticipated to be held by persons who are
stockholders of the Company immediately
prior to such merger or consolidation.
(iii) If an event constituting Good Reason occurs, the
Executive shall have the right, exercisable for a period of one year thereafter
by delivering a written statement to that effect to the Company, to immediately
terminate this Agreement and upon such a determination the Executive shall have
the right to receive and the Company shall be obligated to pay to Executive in
cash a lump sum payment in an amount equal to the sum of (1) three times (A) the
Base Salary then in effect, plus (B) the Target Bonus payable to the Executive
under Section 3.2 of this Agreement or the minimum amount of any similar bonus
or incentive plans or programs then in effect if greater than the Target Bonus
in respect of the fiscal year during which the Executive exercises his rights to
terminate his employment under this Section 7.4(ii) and plus (C) any other cash
or other bonus compensation earned prior to the date of such termination
pursuant to the terms of all incentive compensation plans then in effect other
than any such plan relating to annual incentive cash bonuses or any similar
bonus or incentive plans or programs then in effect; and (2) the Gross Up (the
sum of the foregoing amounts other than the Gross Up being referred to as the
"Good Reason Termination Payment"). If the Executive fails to exercise his
rights under this Section 7.4(iii) within one year following an event
constituting Good Reason, such rights shall expire and be of no further force or
effect.
7.5 Intentions Regarding Certain Stock and Benefit Plans.
Except as otherwise provided herein, upon any termination of the Executive"s
employment Without Good Cause or upon the exercise by the Executive of his
rights to terminate his employment for Good Reason, it is the intention of the
parties that any and all vesting or performance requirements or conditions
affecting any outstanding restricted stock, performance stock, stock option,
stock appreciation right, bonus, award, right, grant or any other incentive
compensation under the Mesa Air Group Employee Stock Option Plan or any other
similar incentive plan, under this Agreement, or otherwise received, shall be
deemed to be fully satisfied and any risk of forfeiture with respect thereto
shall be deemed to have lapsed.
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7.6 Certain Rights Mutually Exclusive. The provisions of
Section 7.3 and Section 7.4 are mutually exclusive, provided, however, that if
within one year following commencement of an 7.4 payout there shall be a Change
in Control as defined in Section 7.4(ii), then the Executive shall be entitled
to the amount payable to the Executive under Section 7.4(iii) reduced by the
amount that the Executive has received under Section 7.3 up to the date of the
Change in Control. The triggering of the lump sum payment requirement of Section
7.4 shall cause the provisions of Section 7.3 to become inoperative.
8. DISCLOSURE
The Executive agrees that during and after the term of the
Executive's employment by the Company, the Executive will disclose and disclose
only to the Company all ideas, methods, plans, developments or improvements
known by him which relate directly or indirectly to the business of the Company,
whether acquired by the Executive before or during the Executive's employment by
the Company. Nothing in this Section 8 shall be construed as requiring any such
communication where the idea, plan, method or development is lawfully protected
from disclosure as a trade secret of a third party or by any other lawful
prohibition against such communication.
9. CONFIDENTIALITY
The Executive agrees to keep in strict secrecy and confidence
any and all information the Executive assimilates or to which the Executive has
access during the Executive's employment by the Company and which has not been
publicly disclosed and is not a matter of common knowledge in the fields of work
of the Company, including but not limited to information regarding the Company's
trade secrets, business plans, marketing plans or programs, any non-public
financial information, including forecasts, statistics relating to routes and
markets, contracts, customers, compensation arrangements and business
opportunities (collectively, the "Confidential Information"). The Executive
agrees that both during and after the term of the Executive's employment by the
Company, the Executive will not, without the prior written consent of the
Company, disclose any Confidential information to any third person, partnership,
joint venture, company, corporation or other organization. The foregoing
covenants shall not be breached to the extent that any such confidential
information becomes a matter of general knowledge other than through a breach by
a person with an obligation to the Company to maintain such confidentiality (and
the Executive knows that such person had an obligation to keep such information
confidential), including but not limited to the Executive's obligations to the
Company under this Section 9.
10. SPECIFIC PERFORMANCE
The Executive agrees that damages at law will be an
insufficient remedy to the Company if the Executive violates the terms of
Sections 8 or 9 of this Agreement and that the Company would suffer irreparable
damage as a result of such violation. Accordingly, it is agreed that the Company
shall be entitled, upon application to a court of competent jurisdiction, to
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obtain injunctive relief to enforce the provisions of such Sections, which
injunctive relief shall be in addition to any other rights or remedies available
to the Company.
11. PAYMENT OF EXCISE TAXES
11.1 Payment of Excise Taxes. If the Executive is to receive
any (1) Good Reason Termination Payment under Section 7.4 of this Agreement, (2)
any benefit or payment under Section 6 as a result of or following the death or
Permanent Disability of the Executive, (3) any benefit or payment under Section
7.3 as a result of or following any termination of employment hereunder Without
Good Cause, (4) any benefit or payment under the Plans as a result of a Change
of Control, following the death or Permanent Disability of the Executive or
following the termination of employment hereunder Without Good Cause (such
sections being referred to as the "Covered Sections" and the benefits and
payments to be received thereunder being referred to as the "Covered Payments"),
the Executive shall be entitled to receive the amount described below to the
extent applicable: If any Covered Payment(s) under any of the Covered Sections
or by the Company under another plan or agreement (collectively, the "Payments")
are subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986 (as amended from time to time, the "Code"), or any successor or
similar provision of the Code (the "Excise Tax"), the Company shall pay the
Executive an additional cash amount (the "Gross Up") such that the net amount
retained by the Executive after deduction of any Excise Tax on the Payments and
the federal income tax and Excise Tax on any amounts paid under this Section 11
shall be equal to the Payments. The Gross-Up shall not include the amount of
state or federal income tax owed by the Executive on the amount of the Payments
excluding any state or federal income tax on the Gross-Up.
11.2 Certain Adjustment Payments. For purposes of determining
the Gross Up, the Executive shall be deemed to pay the federal income tax at the
highest marginal rate of taxation (currently 39.6%) in the calendar year in
which the payment to which the Gross Up applies is to be made. The determination
of whether such Excise Tax is payable and the amount thereof shall be made upon
the opinion of tax counsel selected by the Company and reasonably acceptable to
the Executive. The Gross Up, if any, that is due as a result of such
determination shall be paid to the Executive in cash in a lump sum within thirty
(30) days of such computation. If such opinion is not finally accepted by the
Internal Revenue Service upon audit or otherwise, then appropriate adjustments
shall be computed (without interest but with Gross Up, if applicable) by such
tax counsel based upon the final amount of the Excise Tax so determined; any
additional amount due the Executive as a result of such adjustment shall be paid
to the Executive by his or her Company in cash in a lump sum within thirty (30)
days of such computation, or any amount due the Executive's Company as a result
of such adjustment shall be paid to the Company by the Executive in cash in a
lump sum within thirty (30) days of such computation.
11.3 Preparation of Business Plan. Executive shall use his
commercially reasonable efforts to prepare and deliver a business plan to the
Board of Directors of the Company within 30 days of the time the Executive
becomes the Chief Executive Officer of the Company. Such business plan will
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address the following issues, along with such other issues that the Executive
may include in his discretion:
(1) the disposal of up to 77 excess aircraft;
(2) a new long-term agreement with America West;
(3) improvement of operational performance of the Company;
(4) reduction of the infrastructure of the Company
commensurate with the reduction in the Company's
operations; and
(5) reduction of "unit" costs that would allow the
Company to make reasonable profits in most markets in
which the Company operates.
12. MISCELLANEOUS
12.1 Waiver of Breach. The waiver by either party to this
Agreement of a breach of any of the provisions of this Agreement by the other
party shall not be construed as a waiver of any subsequent breach by such other
party.
12.2 Compliance With Other Agreements. The Executive
represents and warrants that the execution of this Agreement by him and the
Executive's performance of the Executive's obligations hereunder will not
conflict with, result in the breach of any provision of or the termination of or
constitute a default under any Agreement to which the Executive is a party or by
which the Executive is or may be bound.
12.3 Binding Effect: Assignment. The rights and obligations
of the Company under this Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the Company. This Agreement is a
personal employment contract and the rights, obligations and interests of the
Executive hereunder may not be sold, assigned, transferred, pledged or
hypothecated.
12.4 Entire Agreement. This Agreement contains the entire
agreement and supersedes all prior agreements and understandings, oral or
written, with respect to the subject matter hereof. This Agreement may be
changed only by an agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge is sought
12.5 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
12.6 No Duty to Mitigate. The Executive shall be under no
duty to mitigate any loss of income as result of the termination of his
employment hereunder and any payments due the Executive upon termination of
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employment shall not be reduced in respect of any other employment compensation
received by the Executive following such termination.
12.7 Nevada Law. This Agreement shall be construed pursuant
to and governed by the substantive laws of the State of Nevada (except that any
provision of Nevada law shall not apply if the law of a state or jurisdiction
other than Nevada would otherwise apply).
12.8 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or non-
authorization without invalidating the remaining provisions hereof or affecting
the validity, enforceability or legality of such provision in any other
jurisdiction. In any such case, such determination shall not affect any other
provision of this Agreement, and the remaining provisions of this Agreement
shall remain in full force and effect. If any provision or term of this
Agreement is susceptible to two or more constructions or interpretations, one or
more of which would render the provision or term void or unenforceable, the
parties agree that a construction or interpretation which renders the term or
provision valid shall be favored.
12.9 Deduction for Tax Purposes. The Company's obligations to
make payments under this Agreement are independent of whether any or all of such
payments are deductible expenses of the Company for federal income tax purposes.
12.10 Enforcement. If, within 10 days after demand to comply
with the obligations of one of the parties to this Agreement served in writing
on the other, compliance or reasonable assurance of compliance is not
forthcoming, and the party demanding compliance engages the services of an
attorney to enforce rights under this Agreement, the prevailing party in any
action shall be entitled to recover all reasonable costs and expenses of
enforcement (including reasonable attorneys' fees and reasonable expenses during
investigation, before and at trial and in appellate proceedings). In addition,
each of the parties agrees to indemnify the other in respect of any and all
claims, losses, costs, liabilities and expenses, including reasonable fees and
reasonable disbursements of counsel (during investigation prior to initiation of
litigation and at trial and in appellate proceedings if litigation ensues),
directly or indirectly resulting from or arising out of a breach by the other
party of their respective obligations hereunder. The parties' costs of enforcing
this Agreement shall include prejudgment interest. Additionally, if any party
incurs any out-of-pocket expenses in connection with the enforcement of this
Agreement, all such amounts shall accrue interest at 10% per annum (or such
lower rate as may be required to avoid any limit imposed by applicable law)
commencing 30 days after any such expenses are incurred.
12.11 Notices. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; when transmitted if transmitted by
telecopy or similar electronic transmission method; one working day after it is
sent, if sent by recognized expedited delivery service; and three days after it
13
is sent, if mailed, first class mail, certified mail, return receipt requested,
with postage prepaid. In each case notice shall be sent to:
To the Company: c/o Mesa Airlines, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
To the Executive at the Executive's address herein first above
written, or to such other address as either party may specify by written notice
to the other.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
MESA AIR GROUP, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
_____________________________________
Xxxxxxxx X. Xxxxxxxx
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