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EXHIBIT 10.8.1
AMENDMENT
TO
RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT ("Amendment") to Restated Employment Agreement entered
into this 18th day of May, 1999 by and between Comair Holdings, Inc., a Kentucky
corporation ("Company") and Xxxxx X. Xxxxxxx ("Xxxxxxx").
WITNESSETH:
WHEREAS, Comair Holdings, Inc. and Xxxxxxx have entered into a Restated
Employment Agreement dated as of April 1, 1998 providing for the continued
employment of Xxxxxxx by the Company;
WHEREAS, Company and Xxxxxxx desire to amend the Restated Employment
Agreement in accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration receipt which is
hereby acknowledged, the parties hereto agree as follows:
1. Section 9 (a) of the Agreement is hereby amended in its
entirety to read as follows:
"Notwithstanding anything to the contrary herein, the Company
shall have the right at any time, at its sole option, to
terminate Xxxxxxx'x employment hereunder without cause upon
thirty (30) days' prior written notice; PROVIDED, HOWEVER, if
the Company delivers notice that Xxxxxxx'x employment is
terminated pursuant to this Section 9, Company shall pay
Xxxxxxx, and Xxxxxxx shall accept in full satisfaction of
Company's obligations under this Agreement, an amount equal to
three (3) times the sum of (i) the base salary in effect at
the termination date, plus (ii) the average annual bonus
compensation payable to Xxxxxxx during the prior three (3)
fiscal years, payable in a lump sum payment within fifteen
(15) days following termination; PROVIDED FURTHER in the event
of a "change of control" of the Company (as hereinafter
defined), (i) this Agreement shall be deemed terminated as of
the date of the change of control, and the Company shall pay
to Xxxxxxx the payment required under this Section; and (ii)
all of Xxxxxxx'x stock options shall automatically vest
without further action as of the date of the change of control
and Xxxxxxx shall be subject to exercise in accordance with
the terms of the applicable Stock Option Plan, including
without limitation for a period of not less than ninety (90)
days, PROVIDED, FURTHER,
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Xxxxxxx shall have the right to waive the termination and
payment due hereunder upon execution of a revised Employment
Agreement with the Company, in form and substance satisfactory
to Xxxxxxx. A Change in Control means the occurrence of any of
the following:
i. When any "person," as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), other
than Company or a subsidiary, or any Company or
subsidiary's employee benefit plan (including any
trustee of such plan acting as trustee) becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly of
securities of the Company representing 50% or more of
the combined voting power of Company's then
outstanding securities;
ii. Any transaction or event relating to the Company
or any subsidiary required to be described pursuant
to the requirements of Item 6(e) of Schedule 14A of
the Securities and Exchange Commission under the
Exchange Act (as in effect on the effective date of
this Plan), whether or not the Company or such
subsidiary is then subject to such reporting
requirement;
iii. When, during any period of 2 consecutive years
during the existence of the Plan, the individuals
who, at the beginning of such period, constitute the
Board, cease for any reason other than death to
constitute at least a two-thirds (2/3) majority
thereof; provided, however, that a director who was
not a director at the beginning of such period shall
be deemed to have satisfied the two-year requirement
if such director was elected by, or on the
recommendation of, at least two-thirds (2/3) of the
directors who were directors at the beginning of such
period (either actually or by prior operation of this
Subsection 9(a)(iii)); or
iv. The occurrence of a transaction requiring
shareholder approval for the acquisition of the
Company by an entity other than any subsidiary
through purchase of assets, by merger, or otherwise.
2. Section 9 of the Agreement is hereby amended by adding an additional
subsection (c) to Section 9 to read as follows:
"9(c) In the event of a dissolution or liquidation of the
Company or any merger, other than a merger for the purpose of
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the re-domestication of Comair not involving a change of
control, consolidation, exchange or other transaction in which
the Company is not the surviving corporation or in which the
outstanding shares of the Company are converted into cash,
other securities or other property, Company shall pay to
Xxxxxxx or the estate or legal representative of Xxxxxxx, an
amount equal to the payment due under Section 9(a) hereof upon
such dissolution, liquidation, merger, consolidation, exchange
or other transaction."
3. The Company and Xxxxxxx hereby ratify the terms and provisions of
the Restated Employment Agreement which shall remain in full force and effect
except as herein modified.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
COMAIR HOLDINGS, INC.
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Witness
/s/ Xxxxxx Free /s/ Xxxxx X. Xxxxxxx
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Witness XXXXX X. XXXXXXX
