EXHIBIT 10.34
EMPLOYMENT AGREEMENT
This Executive Employment Agreement by and between MIDWAY AIRLINES CORPORATION,
a Delaware corporation (the "Company"), and Xxxxxx Xxxxx Xxxxx (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 her employment by the Company be continued
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"), it being understood by the
parties that this Agreement, together with the Stock Award (as
hereinafter defined), are intended to confirm and implement the letter
agreement between the Company and the Executive dated September 15,
1994 and certain mutual understandings thereafter agreed to by the
parties.
2. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company, for the period commencing on the Effective Date and ending on
December 31, 1997, (the "Employment Period").
3. Terms of Employment.
(a) Position and Duties. During the Employment Period the Executive shall
serve in the position of Senior Vice President - Sales and marketing
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 shall assign.
(b) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive
agrees to devote her 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
Employment Period 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. During the Employment Period 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 Period, 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 of
equal or lesser seniority by the Company.
(iv) Expenses. During the Employment Period, 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 Employment Period, the Executive shall be
entitled to unlimited use of a 1994 Eagle Vision or a comparable lease allowance
("Auto Allowance").
(vi) Vacation. During the Employment Period, 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").
4. Termination.
(a) Death. In the event the Executive dies prior to the expiration of
this Agreement, this Agreement shall automatically terminate.
(b) 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
her 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 her employment
hereunder, the Board of Directors of the
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Company shall have the right by written notice to the Executive to
terminate her 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
3(a) or Section 7 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 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 the twelve (12) month period
following the Date of Termination and (ii) the period following the Date of
Termination until the expiration of the Employment Period.
5. Obligations of the Company upon Termination.
(a) Death. In the event the Executive dies at prior to the expiration of
this Agreement, the Executive's estate shall receive compensation in
the manner set forth in Section 3(c)(iii), together with any
compensation previously deferred by the Executive (with accrued
interest thereon).
(b) Disability. If the Board of Directors of the Company determines, in
the reasonable exercise of its discretion, that the Executive is
disable as described herein, the Company shall pay to the Executive
(or to her beneficiary if the Executive is no longer alive) all
proceeds of any disability insurance policies procured by the Company
for the benefit of the Executive.
(c) 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).
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(d) 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 her 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 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
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(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 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.
6. 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.
7. 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.
8. 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
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laws of descent and distribution. This Agreement shall inure to the benefit 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.
9. 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 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.
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(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
/s/Xxxxxx Xxxxx Xxxxx
----------------------
Xxxxxx Xxxxx Xxxxx
MIDWAY AIRLEINES CORPORATION
/s/ Xxxx Xxxxxxxxx
-------------------------------------
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 3(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/ Xxxxxx Xxxxx-Xxxxx
-----------------------
Xxxxxx Xxxxx-Xxxxx
MIDWAY AIRLINES CORPORATION
/s/ Xxxxxxxx Wallet
-----------------------------
By: Xxxxxxxx Wallet
Its: Senior Vice President
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