EXHIBIT 10.89
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT dated as of January 5, 1998, is by
and between MESA AIR GROUP, INC., a Nevada corporation, (the "Company") and
_______________, an individual residing in Farmington, New Mexico ("Employee").
RECITALS:
A. Employee is the ____________________ of the Company and
has served as an executive officer of the Company and also serves as ___________
__________________;
B. The Board of Directors of the Company considers a sound
and vital management to be essential and desires to have the continuing benefit
of Employee's knowledge, experience and service; and
C. Employee desires to be employed by the Company and
the Company desires to retain Employee in his present capacity on the terms
and conditions set forth herein.
AGREEMENTS:
The parties hereto, in consideration of the covenants and
agreements set forth herein and other good and valuable consideration, agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meaning
indicated thereof:
1.1 Board means the Board of Directors of the
Company or any successor.
1.2 Company means Mesa Air Group, Inc. or any
successor entity.
1.3 Compensation means the total amount included in
Employee's gross income for federal income tax purposes in connection
with his employment hereunder for payments or benefits received under
the provisions of Sections 2.3.1 and 2.3.3 hereof.
1.4 Effective Date means January 5, 1998.
1.5 Good Reason means the occurrence of any of the
following events to which Employee has not expressly agreed to in
writing:
(a) The assignment to Employee of duties
inconsistent with Employee's position, duties,
responsibilities and status with the Company on the Effective
Date or the failure to re-elect Employee to his present
positions;
(b) A material reduction in Employee's
Compensation, as defined herein, as in effect on the Effective
Date or any renewal date of this Agreement, whichever occurs
later;
(c) Employee's relocation, without his
consent, to any city other than the principal location at
which Employee performed Employee's duties on the Effective
Date, except for required travel by Employee on the Company's
business to an extent substantially consistent with Employee's
business travel obligations on the Effective Date; provided,
however, that, if the Board determines to relocate the
Company's principal executive offices, the Company shall pay
all of Employee's reasonable moving and other relocation
expenses including, but not limited to, financial assistance
in connection with the sale of Employee's personal residence
in Farmington, New Mexico and the purchase of a new personal
residence in the relocation city, and the Board shall make
such adjustments in Employee's salary as is reasonably
necessary to reflect the increased costs of living in the new
location, then Employee shall be obligated to perform his
services generally at such new location and such relocation
shall not constitute "Good Reason" hereunder;
(d) The failure of the Company to obtain
the assumption of this Agreement by any successor to
substantially all of the assets or business of the Company;
(e) Any material breach by the Company of
any provision of this Agreement which is not corrected by the
Company or, if the breach cannot be corrected, as to which the
Company fails to pay to Employee reasonable compensation for
such breach, within sixty (60) days following receipt by the
Company of written notice from Employee specifying the nature
of such breach; or
2
(f) A good faith determination by Employee
that Employee is unable to carry out the duties,
responsibilities, authorities or powers attendant to
Employee's position by reason of the conditions surrounding
Employee's employment, which conditions did not exist on the
Effective Date of this Agreement.
1.6 Major Subsidiary means a subsidiary of the
Company generating greater than 30% of the Company's consolidated
annual gross revenues.
1.7 Termination For Cause means 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, 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 a 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 1.7, and specifying the particulars thereof in detail
which determination shall be subject to a complete and de novo review
as to reasonableness and good faith.
1.8 Total and Permanent Disability means an injury
or illness of the Employee that prevents the performance of customary
duties and which is expected to be of long continued and indefinite
duration and that has caused Employee's absence from service for at
least one hundred eighty (180) days.
2. EMPLOYMENT. The Company hereby retains and employs
Employee to serve in the capacity of __________________ of the Company and in
the capacities in which Employee is serving with any subsidiary of the Company
on the Effective Date. Employee accepts such employment on the terms and
conditions set forth herein.
3
2.1 Term. The term of this Agreement shall commence
on the Effective Date and shall end, unless previously terminated in
accordance with the provisions of Section 3 hereof, at the close of
business on the day after the first anniversary date upon which the new
Chief Executive Officer who is replacing Xxxxx Xxxxxx assumes the
duties of that position, or April 30, 1999, whichever is earlier.
2.2 Duties and Responsibilities. Employee's position
shall be _____________________ of the Company. Employee shall serve in
such other executive capacities and have such additional titles and
authorities with respect to the Company and its subsidiaries as the
Board may from time to time reasonably prescribe. Employee shall devote
substantially his entire work time, attention, and energies to the
business of the Company and its subsidiaries. Employee may serve as a
director or member of any other corporation or entity so long as any
such service does not cause any conflict of interest with the Company.
The provisions of this paragraph 2.2 shall not apply if Employee's
employment has been terminated pursuant to Section 3, following.
2.3. Compensation.
2.3.1 Base Salary. Subject to the further
provisions of this Agreement, the Company agrees to pay to
Employee the base salary in effect on the Effective Date,
payable no less frequently than on a monthly basis, with such
increases as shall be made from time to time in accordance
with the Company's regular salary administrative practices as
applied to Company officers. The base salary of Employee shall
not be decreased at any time during the term of this Agreement
from the amount in effect from time to time.
2.3.2 Bonuses. Subject to the further
provision of this Agreement, during the term of this
Agreement, Employee shall be entitled to participate in the
Company's Management Incentive Program ("MIP") as in effect on
the Effective Date, providing for management bonuses based
upon performance of the Company. In such event, Employee shall
be entitled to participate in such amended or substitute plan
or plans in an equitable manner with the other senior
executives of the Company. Nothing in this subsection shall be
deemed to limit the ability of the Employee to be paid and
receive additional bonuses from the Company, based solely upon
Employee's performance, without regard to the payment of
bonuses to any other officer or officers of the Company.
4
2.3.3 Fringe Benefits. Employee shall be
entitled to participate in any fringe benefits which are now
or may hereafter become applicable to the Company's senior
executives, and any other benefits which are commensurate with
the duties and responsibilities to be performed by the
Employee under this Agreement; including, but not limited to,
airline travel benefits, automobile or other transportation
allowances; reimbursement for reasonable business expenses
accounted for in accordance with applicable governmental
regulations; life, long-term disability and accident insurance
plans; employee saving and investment plans; stock option or
purchase plans; and medical, dental and hospitalization
insurance plans; without any material reduction in such fringe
benefits as in effect on the Effective Date hereof.
2.3.4 Participation in Retirement and
Benefit Plans. The Employee shall be entitled to participate
in any retirement, pension, thrift or other retirement or
employee plan that the Company has adopted or may adopt for
the benefit of its senior executives.
3. TERMINATION. Employee's employment under this
Agreement shall terminate upon the occurrence of any one of the following
events:
3.1 Total and Permanent Disability. In the event
Employee suffers Total and Permanent Disability, the Company may
terminate Employee's employment. Upon termination by reason of Total
and Permanent Disability, the company shall pay to Employee such
benefits as may be provided to officers of the Company under any
Company provided disability insurance or similar policy or under any
Company adopted disability plan and in the absence of any such policy
or plan shall continue to pay to Employee for a period of not less than
six (6) months the Compensation then in effect as of the effective date
of Employee's termination. Employee agrees, in the event of any dispute
under this Section as to the existence of Total and Permanent
Disability, to submit to a physical examination by a licensed physician
selected by the Company, the cost of such examination to be paid by the
Company, and the decision as to Employee's disability shall be
conclusive and binding upon the Company and Employee. Nothing contained
herein shall be construed to affect Employee's rights under any
disability insurance or similar policy, whether maintained by the
Company, Employee or another party.
3.2 Death. In the event of the death of Employee
this Agreement shall terminate and, all obligations of the Company
hereunder shall be extinguished as of the date of Employee's death.
Nothing contained herein shall be construed to affect any rights of
Employee's estate under any life insurance or similar policy, whether
owned by the Company, the Employee or any third party.
5
3.3 Termination For Cause. The Company may effect a
Termination For Cause of Employee. The Company shall have no further
obligation to pay Compensation hereunder after the date of Termination
For Cause.
3.4 Termination by Employee With or Without Good
Reason. During the term of this Agreement, Employee may terminate his
employment hereunder at any time, without Good Reason, upon thirty (30)
days written notice to the Company. Employee may also terminate his
employment hereunder at any time without notice within one hundred
eighty (180) days following the occurrence of an event constituting
Good Reason.
3.5 Benefits on Termination by Employee for Good
Reason or by the Company Without Cause. If Employee elects to terminate
his employment during the term of this Agreement within one hundred
eighty (180) days following the occurrence of an event constituting
Good Reason hereunder, or if, in violation of the terms of this
Agreement, the Company terminates Employee's employment other than as
provided in Section 3.1, 3.2 or 3.3 hereof, Employee shall be entitled
to receive severance pay commencing with the next regularly scheduled
pay period of the Company or as follows:
(i) The bi-weekly sum equal to ninety (90)
percent of Employee's base salary divided by 26, payable for a
period of twelve (12) months.
(ii) The bi-weekly sum equal to ten (10)
percent of Employee's base salary divided by 26 to be paid for
the twelve (12) month period immediately following the twelve
(12) month period described in Section 3.5(i).
(iii) Employee shall continue to receive the
fringe benefits set forth in Section 2.3.3, except as limited
in the following sentence of this subparagraph 3.5(iii), for
the twenty-four (24) month period during which Employee
receives the severance pay set forth in 3.5(i) and (ii),
above. After Employee's termination as set forth in this
Section 3, Employee shall not have the use of a Company
automobile or other transportation allowance and shall not be
granted any additional options under any Company stock option
or purchase plans.
6
(iv) In the event of termination, other than
a Termination For Cause, Employee shall continue to be
considered to be an employee for purposes of the Company's
option plan, and all other fringe benefits, for so long as
payments are scheduled to be paid to Employee under this
Agreement. Employee shall not be entitled to participate in
any bonuses as described in Section 2.3.3 which were not
earned prior to Employee's termination under this Section 3.
3.6 Benefits Not Exclusive. Any amounts paid to
Employee under the provisions of this Section 3 shall not affect
Employee's rights to payments, including payments on an accelerated
basis, under any deferred compensation plan maintained by the Company.
Any amendment to any such plan that would diminish Employee's rights or
deprive Employee of an immediate payment on termination of employment
as defined in such plan, shall be ineffective with respect to Employee,
unless Employee specifically consents, in writing, to such amendment.
4. RETENTION BONUS. If upon the termination date of
this Agreement Employee is still employed by the Company and none of the
termination provisions of Section 3 "Termination" have been invoked, Employee
shall receive a retention bonus equal to Employee's annual base salary. This
bonus shall be in addition to any other bonuses or benefit to be paid as part
of Employee's compensation.
5. CONFIDENTIALITY.
5.1 Confidential Information. Employee acknowledges
that he has and will have access to trade secrets and confidential
business information of the Company and its affiliates and subsidiaries
throughout the term of this Agreement and that any such trade secret or
confidential information, regardless of whether Employee alone or with
others developed any such trade secret or confidential information,
shall be and shall remain the property of the Company or its affiliates
or subsidiaries. During the term of this Agreement and after
termination of employment, Employee shall not, either voluntarily or
involuntarily, on either his own account, as a member of a firm, or on
behalf of another employer or otherwise, directly or indirectly use or
reveal to any person, partnership, corporation or association any trade
secret or confidential information of the Company or any of its
subsidiaries or affiliates. Such trade secrets shall include, but shall
not be limited to, business plans, marketing plans or programs, any
non-public financial information, including but not limited to,
financial information, forecasts and statistics relating to routes and
markets, contracts, customer lists, compensation arrangements and
business opportunities. The term "trade secrets" shall not include
7
information generally available to the public or a governmental agency
except information provided to the U.S. Securities and Exchange
Commission or other governmental agencies on a confidential basis.
Employee will not make available to any person, partnership,
corporation or association, or retain after termination of employment,
any Employer policy manuals, printed materials or computer disc
containing information related to the Company or to any subsidiary or
affiliate of the Company.
5.2 Injunctive Relief. Employee acknowledges that
the restrictions contained in this Section 5 are a reasonable and
necessary protection of the immediate interests of the Company and its
affiliates and subsidiaries and that any violation of these
restrictions would cause substantial injury to the Company. In the
event of a breach or threatened breach by Employee of these
restrictions, the Company shall be entitled to apply to any court of
competent jurisdiction for an injunction restraining Employee from such
breach or threatened breach; provided, however, that the right to apply
for an injunction shall not be construed as prohibiting the Company
from pursuing any other available remedies for such breach or
threatened breach.
6. BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the Employee, the Company and their
respective heirs, executors, administrators, successors and assigns; provided,
however, that Employee may not assign his rights hereunder without the prior
written consent of the Company and may not assign his obligations hereunder. The
Company may assign either its rights or obligations hereunder to any of its
subsidiaries or affiliated corporation or to any successor to substantially all
of the assets or business of the Company.
7. MODIFICATION, WAIVER OR AMENDMENT. The provisions of
this Agreement may not be modified, amended or waived except by a written
instrument executed by the Company and Employee. The waiver of any provision
of this Agreement by either party shall not constitute a waiver of any
subsequent occurrences or transactions unless the waiver, by its terms,
constitutes a continuing waiver.
8. ARBITRATION. If the Employee so elects, any dispute
or controversy arising under or in connection with this Agreement shall be
settled by arbitration in accordance with the rules of the American
Arbitration Association. Judgment may be entered on the arbitrator's award
in any court having jurisdiction over this Agreement. The fees and
expenses of the arbitration proceeding (including reasonable attorneys' fees)
and any costs and expenses (including reasonable attorneys' fees) of any further
action to enforce this Agreement shall be paid by the Company.
8
9. NO MITIGATIOn. Any compensation earned by Employee
from another employer or from employment not in violation of the provisions
of Section 2.2 or Section 5 hereof, shall not reduce any payment to which
Employee is entitled under the terms of this Agreement.
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement rescinds
and supersedes any other agreement and contains the entire
understanding between the parties relative to the employment
of Employee, there being no terms, conditions, warranties, or
representations other than those contained or referred to herein, and
no amendment hereto shall be valid unless made in writing and signed by
both of the parties hereto.
10.2 Governing Law. This Agreement shall be
interpreted and construed in accordance with the laws of the State of
Nevada.
10.3 Severability. In the event that any provisions
herein shall be legally unenforceable, the remaining provisions
nevertheless shall be carried into effect.
10.4 Attorneys' Fees. In the event of any
litigation between the parties hereto arising out of the terms,
conditions and obligations expressed in this Agreement, the prevailing
party in such litigation shall be entitled to recover reasonable
attorneys' fees incurred in connection therewith.
10.5 Notices. All notices required or permitted
to be given hereunder shall be deemed given if in writing and delivered
personally or sent by telex, telegram, telecopy, or forwarded by
prepaid registered or certified mail (return receipt requested) to the
party or parties at the following addresses (are at such other
addresses as shall be specified by like notices), and any notice,
however given, shall be effective when received:
To Employee: _____________________
_____________________
_____________________
9
To the Company: Mesa Air Group, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: CEO
10.6 Waiver. The waiver by any party of a breach of
any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach of the same provision or
any other provision of this Agreement.
10.7 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
10.8 Headings. The subject headings to the sections
in this Agreement are included for purposes of convenience only and
shall not affect the construction or interpretation of any of its
provisions.
10.9 Survivorship. Except as provided in the
provisions of Sections 3.1, 3.4, 3.5, 3.6, 5.1, 5.2, 8 and 9 shall
continue and shall survive the termination of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on January 5, 1998, and effective as of the date first hereinabove written.
MESA AIR GROUP, INC.
By:______________________________
Its:_____________________________
EMPLOYEE
_________________________________
__________________
10
