POST-RETIREMENT EXECUTIVE CONSULTING AGREEMENT
This Post-Retirement Executive Consulting Agreement is made
and entered into as of April 15, 2003, between AIR METHODS CORPORATION, a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXX ("Xxxxxx").
RECITALS
X. Xxxxxx is presently serving the Company as its Chairman of the
Board of Directors of the Company (the "Board") and Chief Executive Officer, a
position that he has held since June 1994. Belsey has advised the Board of his
desire to retire as Chief Executive Officer following the Annual Meeting of
Stockholders presently scheduled to be held on June 11, 2003, effective after
June 30, 2003. The terms of Belsey's present employment are set forth in an
Employment Agreement dated as of January 1, 2003.
B. The Board desires that Belsey remain as Chairman of the Board
of the Company after his retirement as Chief Executive Officer and that he be
retained as a consultant to the Company. Belsey has agreed to continue to serve
as Chairman of the Board until the Annual Meeting of Stockholders of the Company
in 2004, and his continued service in that capacity, if any, will be dependent
upon whether he is re-elected as a director upon the expiration of his present
term in 2004, and upon the mutual desire of the Board and Belsey for him to
continue in such a position. Belsey has agreed to serve the Company as a
consultant for a period of five years in the manner provided in this Agreement.
AGREEMENT
In consideration of the mutual promises contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Effective Date; Term. The effective date of this Agreement
shall be July 1, 2003, and it shall remain in effect through June 30, 2008.
2. Services. Belsey shall provide services to the Company in the
capacity of Chairman of the Board, and as a consultant to the Company.
a. Chairman of the Board. Belsey shall continue to serve
as Chairman of the Board, at the pleasure of the Board, through the
completion of the Annual Meeting of Stockholders in 2004. Without
obligation to do so, Belsey may be re-elected to the Board of Directors
at such 2004 Annual Meeting of Stockholders, in which event he may, at
the mutual pleasure of the Board and himself, continue to serve as
Chairman of the Board. Any such continued service as Chairman of the
Board shall be deemed to be pursuant to this Agreement. As Chairman of
the Board, Belsey shall maintain communications and relationships with
other members of the Board, assist in maintaining coordination between
the Board and officers of the Company and in consultation and
cooperation with the
Chief Executive Officer of the Company, plan for and arrange meetings
of the Board, including establishing agendas for meetings. He shall
preside at meetings of the Board, (excepting executive sessions of
independent directors) and meetings of the stockholders of the Company.
b. Consultant. During the term of this Agreement, Belsey
agrees also to serve as consultant to the Company with such
responsibilities, consistent with this Agreement, as the Board of
Directors may designate. Such services may include consulting with and
advising officers of the Company, assistance in maintaining
relationships with stockholders, potential investors, financial
advisers, customers and suppliers of the Company, and with governmental
and regulatory agencies, and with industry associations and
representatives. The services as a consultant shall be coordinated with
and accomplished in conjunction with the officers of the Company. The
Chief Executive Officer of the Company may also request Belsey to
undertake reasonable consulting and managerial assignments on behalf of
the Company.
c. Time Commitment. During the first year after the
effective date of this Agreement, Belsey shall be generally available
for service as a consultant on an as-needed basis which may be up to a
full-time basis until December 31, 2003, subject to such vacation and
personal time as he reasonably requests. After December 31, 2003, it is
anticipated that Belsey will generally be available for consulting
activities, together with his responsibilities, if any, as Chairman of
the Board which may be up to approximately a one-half time basis. The
duties assigned to Belsey hereunder shall be performed to the Company's
offices in Denver, Colorado, except as travel may be required to meet
with other parties with which the Company maintains relationships.
3. Compensation for Services. As compensation for his services
hereunder as Chairman of the Board and as a consultant, Belsey shall be entitled
to compensation and benefits as described herein:
a. Fee for Services. Belsey shall receive cash
compensation in the form of a consulting fee in the aggregate amount of
$750,000, payable $150,000 per year from July 1, 2003 through June 30,
2007. Such fee shall be payable monthly at the rate of $12,500 per
month. Except as provided in Section 8, such compensation shall
continue for the five year term of this Agreement regardless of the
amount of time that Belsey spends performing his services as Chairman
and consultant and whether he may become disabled or die during such
period, it being understood that such fee for service is provided for
in return for the agreement of Belsey to perform such services. In
addition, Belsey shall receive cash compensation of $50,000 on each of
July 1, 2003, January 1, 2004 and January 1, 2005, which Belsey intends
to contribute to a personal retirement fund.
b. Benefits. Belsey shall be entitled either to
participate in the Company's health insurance program on the same basis
as such participation is made available to officers and executive
employees of the Company, or, if he is
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deemed ineligible to participate as a covered insured under the
Company's health program, to be reimbursed the cost of payments that he
makes for comparable health insurance for himself and his wife, as
provided for under the Consolidated Omnibus Budget Reconciliation Act
("COBRA") or state law until October 1, 2004.
c. Reimbursement of Expenses/Office. The Company shall
reimburse Belsey for all reasonable out-of-pocket expenses incurred by
Belsey in connection with the business of the Company and in
performance of his duties under this Agreement upon presentation by
Belsey to the Company of an itemized accounting of such expenses with
reasonable supporting data. During the first year that this Agreement
is in effect, and thereafter so long as he continues to serve as
Chairman of the Board, the Company shall provide him with reasonable
office space and equipment appropriate to his responsibilities, and
shall provide him with such staff assistance as he may reasonably
request to carry out his responsibilities to the Company.
d. Options/Bonus. It is specifically understood and
agreed that Belsey shall not be entitled to participate in any bonus
program for executives based upon his activities after June 30, 2003.
Belsey may, in the sole discretion of the Compensation Committee or the
Board, be granted stock options in such amounts as the Committee or the
Board deems appropriate to provide incentive and recognition of his
responsibilities and services.
4. Change of Control. In the event that a change of control of
the Company, as hereinafter defined, occurs, and if, thereafter, Belsey does not
continue to serve as Chairman of the Board, Belsey's right to cash payment of
fees pursuant to Section 3(a) shall accelerate and the unpaid balance of
compensation provided for under such Section shall be paid to him immediately,
together with an amount that reasonably reimburses him for any increase in his
federal and state income taxes that results from such acceleration of the
receipt of such income. Belsey's rights to benefits as provided for in Section
3(b), if then applicable, shall continue notwithstanding the change of control
and the immediate payment of the balance of the cash payments. For purposes of
this Section 4, a Change of Control shall be deemed to have occurred in the
event that a merger, sale of assets, sale or exchange of stock, or other
corporate reorganization occurs with another corporation or other entity,
following which and as a result of which, more than 50% of the ownership
interest of the surviving corporation is held by persons other than the
stockholders of the Company prior to such transaction, or a majority of the
directors of the surviving company are persons other than the directors of the
Company prior to such transaction.
5. Trade Secrets and Confidential Information. During the term of
this Agreement and for a period of five years thereafter, Belsey shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding. Upon termination of his employment, all documents, records,
notebooks, and similar repositories of records containing information relating
to any trade secrets or
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confidential information then in Belsey's possession or control, whether
prepared by him or by others, shall be left with the Company or returned to the
Company upon its request.
6. Covenant Not to Compete. During the term of this Agreement and
for a period of eighteen (18) months thereafter, Belsey shall not, anywhere in
the United States, engage in any business which competes directly or indirectly
with the Company. Any company or business which is engaged in the air medical
transport business or the business of furnishing or retrofitting aircraft to
provide medical transports shall be deemed to be engaged in business in
competition with the Company.
7. Severability. It is the desire and intent of the parties that
the provisions of Sections 5 and 6 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular sentence or portion
of either Section 5 or 6 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be valid
and enforceable as though the invalid portions were not a part thereof. In the
event that any of the provisions of Section 10 relating to the geographic areas
of restriction or the period of restriction shall be deemed to exceed the
maximum area or period of time which a court of competent jurisdiction would
deem enforceable, the geographic areas and times shall, for the purposes of this
Agreement, be deemed to be the maximum areas or time periods which a court of
competent jurisdiction would deem valid and enforceable in any state in which
such court of competent jurisdiction shall be convened.
8. Termination Breach and Injunctive Relief. In the event that
Belsey breaches his obligations under Section 5 or 6, and such breach continues
for more than ten (10) days after the Company notifies him in writing with a
demand to decease the offending conduct, the Company may terminate this
Agreement and all further obligations of the Company hereunder shall thereupon
cease. Additionally, Belsey agrees that any violation by him of the agreements
contained in Sections 5 and 6 are likely to cause irreparable damage to the
Company, and therefore agrees that if there is a breach or threatened breach by
Belsey of the provisions of said sections, the Company shall be entitled to an
injunction restraining him from such breach. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies for such breach or
threatened breach.
9. Indemnification. The Company shall, to the full extent
permitted by applicable law, indemnify Belsey and hold him harmless if he is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative, by reason of Belsey's responsibility or services performed
hereunder, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by Belsey in
connection with such action, suit or proceeding so long as Belsey acted in good
faith and in a manner that he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. To the
fullest extent permitted by law, the Company shall pay such expenses in advance
of the final disposition of such action upon satisfying such conditions as may
be imposed by law with respect to such advances.
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10. Miscellaneous.
a. Notices. Any notice required or permitted to be given
under this Agreement shall be directed to the appropriate party in
writing and mailed or delivered, if to the Company, to 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 or to the Company's then principal
office, if different, and if to Belsey, to such address as he may have
furnished to the Company for this purpose or, if Belsey has furnished
no such address, to his last known address as shown on the Company's
records.
b. Binding Effect. This Agreement is a personal service
agreement and may not be assigned by the Company or Belsey, except that
subject to the provisions of Section 4 hereof, the Company may assign
this Agreement to a successor by merger, consolidation, sale of assets
or other reorganization, and subject to the foregoing, and, in
particular, the rights of Belsey to compensation hereunder, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns, and legal
representatives.
c. Amendment. This Agreement may not be amended except
by an instrument in writing executed by each of the parties hereto.
d. Applicable Law. This Agreement is entered into in the
State of Colorado and for all purposes shall be governed by the laws of
the State of Colorado.
e. Counterparts. This instrument may be executed in one
or more counterparts, each of which shall be deemed an original.
f. Entire Agreement. As of the Effective Date specified
herein, this Agreement supersedes and replaces all prior agreements
between the parties related to Belsey's employment by the Company. All
obligations of the parties under the currently effective Employment
Agreement that have continuing effect shall continue notwithstanding
this Agreement except to the extent that any such provisions may be in
direct conflict with the provisions of this Agreement, in which case
the provisions of this Agreement shall be effective.
g. Attorney's Fees. In the event that either party shall
resort to legal action to enforce that party's rights under this
Agreement, the non-prevailing party shall pay all costs and expenses,
reasonably incurred by the prevailing party in pursuing or defending
such action, including reasonable attorney's fees.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
AIR METHODS CORPORATION
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Chief Operating Officer
and Chief Financial Officer
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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