EXHIBIT 10.2
EMPLOYMENT AGREEMENT
FOR
XXXXX X. XXXXXX
This Agreement is entered into this 28th day of December, 2006, by and
between AirNet Systems, Inc. (hereinafter referred to as the "Employer") and
Xxxxx X. Xxxxxx (hereinafter referred to as the "Executive").
WHEREAS, the Employer desires to employ the Executive as its Chief
Executive Officer (the "CEO") and anticipates that the Executive will be
appointed as chairman of the Board of Directors of the Employer (the "Board");
WHEREAS, the Executive desires to be employed with the Employer in such
capacity under the terms of this Agreement;
NOW, THEREFORE, and in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and adequacy of which is
agreed to by the parties, the Employer and the Executive hereby mutually agree
as follows:
1. EMPLOYMENT AND DUTIES. The Employer hereby employs the Executive, and
the Executive hereby accepts employment with the Employer upon the terms and
conditions hereinafter set forth. The Executive will serve the Employer as its
CEO. In such capacity, the Executive will report directly to the Board and have
all powers, duties, and obligations as are normally associated with such
position. Every executive officer of the Company shall report to Executive. The
Executive will further perform such other duties, which shall not be
inconsistent with his position as CEO of Company, and hold such other position
related to the business of the Employer and its Affiliates as may from time to
time be reasonably requested of him by the Board. For purposes of this
Agreement, an "Affiliate" shall mean any corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, trust, association or organization which is, directly or indirectly,
controlled by, or under common control with, the Employer. The Executive will
devote his skills, time, and attention to said position and in furtherance of
the business and interests of the Employer and its Affiliates and will not
directly or indirectly render any services of a business, commercial or
professional nature to any person or organization without the prior written
consent of the Board (which will not be unreasonably withheld or delayed);
provided, however, that the Executive will not be precluded from (a) continuing
as a member of any board of directors on which he is serving as of the Effective
Date or joining one additional board of directors; (b) maintaining and operating
his consulting company in existence as of the Effective Date; and (c)
participation in community, civic, charitable or similar activities which do not
unreasonably interfere with his responsibilities hereunder. The Employer agrees
to use its commercially reasonable efforts to cause Executive to be nominated as
a director at each annual meeting of shareholders during the term of this
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Agreement. Executive agrees to serve on the Board if elected. A failure to
nominate the Executive to the Board of Directors during the term of this
Agreement shall give the Executive the right to terminate his employment under
this Agreement in accordance with Paragraph 5(g) hereof.
2. TERM OF EMPLOYMENT.
a. Original Term. This Agreement will be effective upon execution by both
parties. The term of employment will begin, or be deemed to have begun, on
December 28, 2006 (the "Effective Date"). It will continue through the one-year
period ending on the day before the first anniversary date of the Effective
Date, subject, however, to prior termination or to extension, as herein
provided.
b. Extension of Term. The Employer and the Executive agree that the Board
will review the Executive's performance with the intent that, if the Executive's
performance so warrants, the Employer may extend the term of this Agreement for
additional time periods to be determined in the discretion of the Board. By
October 1, 2007, or, in the event that this Agreement is extended as provided
for in this Paragraph 2(b), within ninety (90) days preceding the end of any
extension period, the Board will notify the Executive of the Employer's decision
whether or not to grant an extension of this Agreement for an additional time
period. In the event that the Board fails to notify the Executive, on or before
the date described in the preceding sentence, of the decision regarding the
extension of the term of this Agreement, the term of this Agreement will
automatically be extended for an additional one-year period.
3. COMPENSATION.
a. Salary. The Executive will receive an initial annual base salary of
Three Hundred Sixty Thousand Dollars ($360,000), which shall be reviewed at
least annually and may be increased, but not decreased without the Executive's
written consent, by the Board during the term of this Agreement. In the event
that the Board increases the Executive's initial base salary, the amount of the
initial base salary, together with any increase(s) will be his base salary
(hereinafter referred to as the "Base Salary"). The Base Salary will be payable
in accordance with the Employer's regular payroll payment practices.
b. Sign-on Bonus. Within 5 days following the Effective Date, the Employer
will pay the Executive a single lump sum amount equal to One Hundred Twenty-Five
Thousand Dollars ($125,000) as an incentive to enter into this Agreement.
Payment will be made by the Employer in accordance with directions received from
the Executive.
c. Annual Bonus. Each calendar year, the Executive will be eligible for
bonus compensation of up to one hundred percent (100%) of his Base Salary (the
"Annual Bonus"). Such Annual Bonus will be based upon the attainment of
reasonable goals determined annually within one month after the start of each
calendar year by the Board. These goals may include, but shall not be limited
to, (i) performance against budget; (ii) growth of cargo revenue; (iii) CEO
succession development; (iv) strategic development; and (v) cash flow. Any
Annual Bonus payable under this Paragraph 3(c) will be paid to the Executive in
two installments. The first payment (based upon a target of 50% of his Base
Salary and the attainment of relevant goals
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from January 1st through June 30th of each calendar year) will be made during
the month of July of each year; and the second payment (based upon a target of
the remaining 50% of his Base Salary and the attainment of relevant goals from
July 1st through December 31st of each calendar year) will be made no later than
March 15th of the calendar year following the calendar year for which such bonus
is payable.
d. Equity. Upon the Effective Date, the Executive will be granted a
non-statutory stock option to purchase 150,000 common shares of the Employer
with an exercise price equivalent to the closing price of the stock as of the
Effective Date. Such option will be granted pursuant to the terms of the
Employer's incentive equity plan (the "Equity Plan"); provided, that the right
to purchase shares pursuant to the option will vest in (i) 75,000 shares as of
the date of grant; and (ii) 75,000 shares on the day before the first
anniversary of the date of grant. In the event that the Executive remains
employed by the Employer after the first anniversary of the Effective Date, the
Board will review and may, in its discretion, make additional grants of equity
awards to the Executive under the Equity Plan.
4. FRINGE BENEFITS AND EXPENSES.
a. Fringe Benefits. The Employer will provide the Executive with all health
and life insurance coverages, disability programs, tax-qualified retirement
plans, equity compensation programs, paid holidays, vacation, perquisites, and
such other fringe benefits of employment as the Employer may provide from time
to time to actively employed senior executives of the Employer. To the greatest
extent reasonably practicable, such benefits will be immediately available as of
the Effective Date without any waiting periods or delays. Notwithstanding any
provision contained in this Paragraph 4(a), during the term of this Agreement
(including extensions thereof), the Executive will be entitled to a minimum of
four (4) weeks of vacation per year. The Employer may discontinue or terminate
at any time any employee benefit plan, policy or program, now existing or
hereafter adopted, to the extent permitted by the terms of such plan, policy or
program and will not be required to compensate the Executive for such
discontinuance or termination.
b. Travel and Living Expenses. During the term of this Agreement (including
extensions thereof), the Employer will provide the Executive with an apartment,
agreeable to the Executive, in the Columbus Metropolitan area. The Employer will
pay all expenses related to the maintenance of such apartment and will reimburse
the Executive for all reasonable living expenses incurred by him while he is in
the Columbus area. In addition, the Employer will reimburse the Executive for
all reasonable travel expenses (at coach rates) incurred by him between his home
and the Columbus area. Any expenses paid or reimbursed by the Employer pursuant
to this Paragraph 4(b) will be grossed up to take into account all federal,
state and local income taxes to be paid by the Executive with respect to the
payment or reimbursement of such expenses. The Employer will pay such gross up
amount to the Executive in a single lump sum payment within 15 days prior to the
date on which the Executive is required to file his federal income tax return
for the relevant tax year.
c. Business Expenses. The Employer shall reimburse the Executive for all
reasonable entertainment and miscellaneous expenses incurred by the Executive in
connection with the performance of his business activities under this Agreement,
in accordance with the
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existing policies and procedures of the Employer pertaining to reimbursement of
such expenses to senior executives.
5. TERMINATION OF EMPLOYMENT.
a. Death of Executive. The Executive's employment hereunder will terminate
upon his death and the Executive's beneficiary (as designated by the Executive
in writing with the Employer prior to his death) will be entitled to the
following payments and benefits:
i. any Base Salary that is accrued but unpaid, the value of any
vacation that is accrued but unused (determined by dividing Base Salary by 365
and multiplying such amount by the number of unused vacation days), and any
expenses under subparagraphs b and c of Paragraph 4 that are unreimbursed--all,
as of the date of termination of employment; and
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs.
In the absence of a beneficiary designation by the Executive, or, if the
Executive's designated beneficiary does not survive him, payments and benefits
described in this subparagraph will be paid to the Executive's estate.
b. Disability. The Executive's employment hereunder may be terminated by
the Employer in the event of his Disability. For purposes of this Agreement,
"Disability" means the inability of the Executive to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months. During any period
that the Executive fails to perform his duties hereunder as a result of a
Disability ("Disability Period"), the Executive will continue to receive his
Base Salary at the rate then in effect for such period until his employment is
terminated pursuant to this subparagraph; provided, however, that payments of
Base Salary so made to the Executive will be reduced by the sum of the amounts,
if any, that were payable to the Executive at or before the time of any such
salary payment under any disability benefit plan or plans of the Employer and
that were not previously applied to reduce any payment of Base Salary. In the
event that the Employer elects to terminate the Executive's employment pursuant
to this subparagraph, the Executive will be entitled to the following payments
and benefits:
i. any Base Salary that is accrued but unpaid, the value of any
vacation that is accrued but unused (determined by dividing Base Salary by 365
and multiplying such amount by the number of unused vacation days), and any
expenses under subparagraphs b and c of Paragraph 4 that are unreimbursed--all,
as of the date of termination of employment; and
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs.
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c. Termination of Employment for Cause. The Employer may terminate the
Executive's employment at any time upon notice from Company for "Cause," if such
Cause is determined by the Board. For purposes of this Agreement, the term
"Cause" means that the Executive has:
i. intentionally caused the Employer or any of its Affiliates, other
than pursuant to the advice of the Employer's legal counsel, to violate a law
which is reasonable grounds for serious civil or criminal penalties against the
Employer, an Affiliate or the Board;
ii. committed fraud or acted with intentional misconduct or gross
negligence, in carrying out his duties under this Agreement which has caused
demonstrable and serious injury to the Company;
iii. been convicted of any crime involving moral turpitude or a
violation of federal or state securities laws.
iv. intentionally committed a material breach of any material
covenant, provision, term or condition set forth in this Agreement and, if such
breach is capable of being cured, shall have failed to cure such breach within
ten (10) days of receipt of written notice of such breach from the Board.
In the event that the Employer terminates the Executive's employment for
Cause, the Executive will be entitled to the following payments and benefits:
A. any Base Salary that is accrued but unpaid, the value of any
vacation that is accrued but unused (determined by dividing Base Salary by 365
and multiplying such amount by the number of unused vacation days), and any
expenses under subparagraphs b and c of Paragraph 4 that are unreimbursed--all,
as of the date of termination of employment; and
B. any rights and benefits (if any) provided under plans and
programs of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs.
d. Termination Without Cause. The Employer may terminate the Executive's
employment for any reason upon thirty (30) days prior written notice to the
Executive. If the Executive's employment is terminated by the Employer for any
reason other than the reasons set forth in subparagraphs a, b or c of this
Paragraph 5, the Executive will be entitled to the following payments and
benefits:
i. any Base Salary that is accrued but unpaid, any Annual Bonus earned
on a prorated calendar basis to the date of termination but unpaid and
reflecting performance over the applicable period (based upon, if possible,
measurement of the attainment of goals through the date of termination, or if
measurement is not possible, based upon the Executive's target bonus through the
date of termination) (hereinafter referred to as the "Accrued Bonus"), the value
of any vacation that is accrued but unused (determined by dividing Base Salary
by 365 and multiplying such amount by the number of unused vacation days), and
any
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expenses under subparagraphs b and c of Paragraph 4 that are unreimbursed--all,
as of the date of termination of employment;
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs;
iii. notwithstanding any provision contained elsewhere in this
Agreement, full vesting of all outstanding awards granted to the Executive under
the Equity Plan and, for purposes of exercising such awards, treatment of the
Executive's termination of employment as a retirement under the Equity Plan; and
iv. a single lump sum payment, payable within thirty (30) days
following the date of termination of employment, equal to twelve (12) months of
the Base Salary applicable to the Executive on the date of termination of
employment.
e. Voluntary Termination by Executive. The Executive may resign and
terminate his employment with the Employer for any reason whatsoever upon not
less than thirty (30) days' prior written notice to the Employer. In the event
that the Executive terminates his employment voluntarily pursuant to this
Paragraph 5(e), the Executive will be entitled to the following payments and
benefits:
i. any Base Salary that is accrued but unpaid, any Accrued Bonus, the
value of any vacation that is accrued but unused (determined by dividing Base
Salary by 365 and multiplying such amount by the number of unused vacation
days), and any expenses under subparagraphs b and c of Paragraph 4 that are
unreimbursed--all, as of the date of termination of employment; and
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs.
f. Voluntary Termination Upon Retention of New CEO. The Executive may
resign and terminate his employment with the Employer upon the voluntary
transition of the CEO's responsibilities to another individual that has been
selected and is reasonably acceptable to the Board by providing thirty (30)
days' prior written notice to the Employer. In the event that the Executive
terminates his employment pursuant to this Paragraph 5(f), the Executive will be
entitled to the following payments and benefits:
i. any Base Salary that is accrued but unpaid, any Accrued Bonus, the
value of any vacation that is accrued but unused (determined by dividing Base
Salary by 365 and multiplying such amount by the number of unused vacation
days), and any expenses under subparagraphs b and c of Paragraph 4 that are
unreimbursed--all, as of the date of termination of employment;
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs;
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iii. notwithstanding any provision contained elsewhere in this
Agreement, full vesting of all outstanding awards granted to the Executive under
the Equity Plan and, for purposes of exercising such awards, treatment of the
Executive's termination of employment as a retirement under the Equity Plan; and
iv. a single lump sum payment, payable within thirty (30) days
following the date of termination of employment, equal to six (6) months of the
Base Salary applicable to the Executive on the date of termination of
employment.
g. Termination By Executive for Good Reason. The Executive shall have the
right to terminate his employment under this Agreement upon thirty (30) days'
prior written notice following the occurrence of any of the following events:
i. Executive is not nominated as a director during the term of this
Agreement;
ii. the Board significantly and adversely changes the nature or scope
of the Executive's authority, powers, functions, duties or responsibilities;
iii. without the prior consent of the Executive, there is a
substantial and continued reduction in the level of support services, staff,
secretarial and other assistance, office space available to a level below that
which is reasonably necessary for the performance of Executive's duties;
iv. the Company shall have committed a material breach of any material
covenant, provision, term or condition set forth in this Agreement and, if such
breach is capable of being cured, shall have failed to cure such breach within
ten (10) days of receipt of written notice of such breach from the Executive; or
v. without the prior consent of the Executive, the Company shall fail
to keep in place Director and Officer Liability Insurance covering the Executive
under substantially similar terms and in substantially similar amounts as in
existence prior to the Effective Date.
In the event that the Executive terminates his employment pursuant to this
Paragraph 5(g), the Executive will be entitled to the same payments and benefits
as if Executive had been terminated without Cause as described in Paragraph
5(d).
h. Failure to Extend Term of Agreement. If the Employer notifies the
Executive that the Employer will not extend the term of this Agreement under the
provisions of Paragraph 2(b) hereof, the Executive's employment under this
Agreement will terminate at the end of such term and the Executive will be
entitled to the same payments and benefits as if the Executive had been
voluntarily terminated upon retention of a new CEO as described in Paragraph
5(f).
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6. CHANGE IN CONTROL.
a. Occurrence of Change in Control. In the event that during the term of
this Agreement, a Change in Control [as defined under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") and the regulations
thereunder] occurs the Employer or its successor will pay to the Executive the
following payments and benefits:
i. any Base Salary that is accrued but unpaid, any Accrued Bonus, the
value of any vacation that is accrued but unused, (determined by dividing Base
Salary by 365 and multiplying such amount by the number of unused vacation
days), and any expenses under subparagraphs b and c of Paragraph 4 that are
unreimbursed -- all, as of the date of termination of employment;
ii. any rights and benefits (if any) provided under plans and programs
of the Employer, determined in accordance with the applicable terms and
provisions of such plans and programs;
iii. notwithstanding any provision contained elsewhere in this
Agreement, full vesting of all outstanding awards granted to the Executive under
the Equity Plan and, for purposes of exercising such awards, treatment of the
Executive's termination of employment as a retirement under the Equity Plan; and
iv. a single lump sum payment, payable within thirty (30) days after
the Change in Control, equal to twelve (12) months of the total Base Salary
applicable to the Executive as of the date of the Change in Control.
b. Treatment of Taxes. If any payments provided under this Agreement, when
combined with payments and benefits under all other plans and programs
maintained by the Employer would be subject to the excise tax imposed by Section
4999 of the Code or any corresponding provisions of state or local tax laws as a
result of payment upon a change of control, or any interest or penalties are
incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes) imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the payments.
7. NONEXCLUSIVITY OF RIGHTS. Nothing in this Agreement will prevent or
limit the Executive's continuing or future participation in any incentive,
fringe benefit, deferred compensation, or other plan or program provided by the
Employer and for which the Executive may qualify, nor will anything herein limit
or otherwise affect such rights as the Executive may have under any other
agreements with the Employer. Amounts that are vested benefits or that the
Executive is otherwise entitled to receive under any plan or program of the
Employer at or after the date of termination of employment, will be payable in
accordance with such plan or program.
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8. CONFIDENTIAL INFORMATION. The Executive will hold in a fiduciary
capacity, for the benefit of the Employer, all secret or confidential
information, knowledge, and data relating to the Employer and its Affiliates,
that shall have been obtained by the Executive during his employment with the
Employer and that is not public knowledge (other than by acts by the Executive
or his representatives in violation of this Agreement). During and after
termination of the Executive's employment with the Employer, the Executive will
not, without the prior written consent of the Board, communicate or divulge any
such information, knowledge, or data to anyone other than the Employer or those
designated by it, unless the communication of such information, knowledge or
data is required pursuant to a compulsory proceeding in which the Executive's
failure to provide such information, knowledge, or data would subject the
Executive to criminal or civil sanctions and then only with prior notice to the
Employer.
The restrictions imposed on the release of information described in this
Paragraph 8 may be enforced by the Employer and/or any successor thereto by an
action for injunction and/or an action for damages. The provisions of this
Paragraph 8 constitute an essential element of this Agreement, without which the
Employer would not have entered into this Agreement. Notwithstanding any other
remedy available to the Employer at law or at equity, the parties hereto agree
that the Employer or any successor thereto, will have the right, at any and all
times, to seek injunctive relief in order to enforce the terms and conditions of
this Paragraph 8.
If the scope of any restriction contained in this Paragraph 8 is too broad
to permit enforcement of such restriction to its fullest extent, then such
restriction will be enforced to the maximum extent permitted by law, and the
Executive hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
9. INTELLECTUAL PROPERTY. The Executive agrees to communicate to the
Employer, promptly and fully, and to assign to the Employer all intellectual
property developed or conceived solely by the Executive, or jointly with others,
during the term of his employment, which are within the scope of either the
Employer 's business or an Affiliate's business, or which utilized Employer
materials or information. For purposes of this Agreement, "intellectual
property" means inventions, discoveries, business or technical innovations,
creative or professional work product, or works of authorship. The Executive
further agrees to execute all necessary papers and otherwise to assist the
Employer, at the Employer's sole expense, to obtain patents, copyrights or other
legal protection as the Employer deems fit. Any such intellectual property is to
be the property of the Employer whether or not patented, copyrighted or
published.
10. ASSIGNMENT AND SURVIVORSHIP OF BENEFITS. The rights and obligations of
the Employer under this Agreement will inure to the benefit of, and will be
binding upon, the successors and assigns of the Employer. If the Employer shall
at any time be merged or consolidated into, or with, any other company, or if
substantially all of the assets of the Employer are transferred to another
company, then the provisions of this Agreement will be binding upon and inure to
the benefit of the company resulting from such merger or consolidation or to
which such assets have been transferred, and this provision will apply in the
event of any subsequent merger, consolidation, or transfer.
11. NOTICES. Any notice given to either party to this Agreement will be in
writing, and will be deemed to have been given when delivered personally or sent
by certified mail,
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postage prepaid, return receipt requested, duly addressed to the party
concerned, at the address indicated below or to such changed address as such
party may subsequently give notice of:
If to the Employer: AirNet Systems, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
If to the Executive: Xxxxx X. Xxxxxx
At the last address on file
with the Employer
12. INDEMNIFICATION. The Executive shall be indemnified by the Employer to
the extent provided in the case of officers under the Employer's Articles of
Incorporation or Code of Regulations, to the maximum extent permitted under
applicable law. The Employer shall use commercially reasonable efforts to
continue its Director and Officer Liability Insurance ("DOL Insurance") under
substantially similar terms and in substantially similar amounts as in existence
prior to the termination of employment. The DOL Insurance shall be maintained
for at least seven (7) years from termination of employment and without limiting
the foregoing, the Executive shall not be excluded from coverage under such DOL
Insurance during such period.
13. TAXES. Anything in this Agreement to the contrary notwithstanding, all
payments required to be made hereunder by the Employer to the Executive will be
subject to withholding of such amounts relating to taxes as the Employer may
reasonably determine that it should withhold pursuant to any applicable law or
regulations. In lieu of withholding such amounts, in whole or in part, however,
the Employer may, in its sole discretion, accept other provision for payment of
taxes, provided that it is satisfied that all requirements of the law affecting
its responsibilities to withhold such taxes have been satisfied.
14. ARBITRATION; ENFORCEMENT OF RIGHTS. Any controversy or claim arising
out of, or relating to this Agreement, or the breach thereof, except with
respect to Paragraphs 8 and 9, will be settled by arbitration in the city of
Columbus, Ohio, in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereof.
All legal and other fees and expenses, including, without limitation, any
arbitration expenses, incurred by the Executive in connection with seeking in
good faith to obtain or enforce any right or benefit provided for in this
Agreement, or in otherwise pursuing any right or claim, will be paid by the
Employer, to the extent permitted by law, provided that the Executive is
successful in whole or in part as to such claims as the result of litigation,
arbitration, or settlement.
In the event that the Employer refuses or otherwise fails to make a payment
when due and is ultimately decided that the Executive is entitled to such
payment, such payment will be increased to reflect an interest equivalent for
the period of delay, compounded annually, equal to the prime or base lending
rate used by Bank of America, N.A., and in effect as of the date the payment was
first due.
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15. GOVERNING LAW/CAPTIONS/SEVERANCE. This Agreement will be construed in
accordance with, and pursuant to, the laws of the State of Ohio. The captions of
this Agreement will not be part of the provisions hereof, and will have no force
or effect. The invalidity or unenforceability of any provision of this Agreement
will not affect the validity or enforceability of any other provision of this
Agreement. Except as otherwise specifically provided in this paragraph, the
failure of either party to insist in any instance on the strict performance of
any provision of this Agreement or to exercise any right hereunder will not
constitute a waiver of such provision or right in any other instance.
16. SECTION 409A. Notwithstanding any provision contained in this Agreement
to the contrary, in the event that any payment to be made to the Executive under
this Agreement is required to be delayed pursuant to the provisions of Section
409A of the Code, this Agreement shall be amended to comply with the applicable
requirements of Code Section 409A; provided, that any such amendment shall
require the prior written consent of Executive.
17. ENTIRE AGREEMENT/AMENDMENT. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
have made no agreement, representations, or warranties relating to the subject
matter of this Agreement that are not set forth herein. This Agreement may be
amended only by mutual written agreement of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
AIRNET SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx Xxxxxx
--------------------------
ITS: Lead Director
/s/ Xxxxx X. Xxxxxx
--------------------------
Date: December 28, 2006
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