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EXHIBIT 10.8
RESTATED EMPLOYMENT AGREEMENT
THIS RESTATED EMPLOYMENT AGREEMENT ("Agreement") is dated as of April
1, 1998 by and between COMAIR HOLDINGS, INC. a Kentucky corporation ("Company")
and XXXXX X. XXXXXXX ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, the Company and Xxxxxxx entered into an Employment Agreement
dated December 23, 1983 as restated by Restated Employment Agreement dated as of
June 1, 1988 which they desire to amend and restate; and
WHEREAS, Company desires to continue to employ Xxxxxxx as Chairman and
Chief Executive Officer, and Xxxxxxx desires to continue to perform such duties;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. The Company does hereby continue to employ Xxxxxxx,
subject to the terms and conditions hereinafter set forth, as an executive
employee and officer of the Company with the title of Chairman of the Board and
Chief Executive Officer or such other executive title or titles as determined by
the Board of Directors of Company from time to time, and Xxxxxxx accepts such
employment upon the terms and conditions herein set forth.
2. TERM. The term of this Agreement shall be for three (3) years, which
shall commence on April 1, 1998, and shall terminate on March 3l, 2001, unless
sooner terminated in accordance with the provisions hereof; provided, however,
on March 31 of each year during the
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term commencing in 1999, this Agreement shall be extended for an additional year
unless either party shall give thirty (30) days prior written notice not to
automatically extend the term for an additional year.
3. DUTIES AND RESPONSIBILITIES.
(a) Xxxxxxx agrees during the term of his employment hereunder
to use his best efforts, skills and abilities to promote Company's business and
interests and to perform such duties consistent with his appointment as Chairman
of the Board and Chief Executive Officer as may be assigned to him by the Board
of Directors of Company or the Executive Committee of the Board of Directors.
Xxxxxxx shall maintain communication with the Board of Directors of Company
concerning his areas of responsibility and shall supply it with written reports,
business plans, budgets, forecasts and other studies concerning the business of
Company as he shall prepare from time to time during his employment by the
Company hereunder, which reports, plans, budgets, forecasts and other studies
shall be implemented only with the approval of the Board of Directors.
(b) Xxxxxxx agrees to abide by any and all rules and
regulations governing the transaction of business as the Board of Directors of
Company may from time to time adopt or approve.
4. ELECTION AS DIRECTOR AND OFFICER. It is contemplated that Xxxxxxx
will continue to be elected as a member of the Board of Directors, a member of
the Executive Committee of the Board of Directors and as Chief Executive Officer
of Company and shall be retained in such posts throughout his employment by
Company.
5. COMPENSATION. Company shall pay Xxxxxxx in full payment for any and
all services rendered by him hereunder, including, without limitation, all
services as an officer or
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Director or both of Company, its subsidiaries or affiliates, at an annual rate
of Five Hundred Twenty-Five Thousand Dollars ($525,000), subject to increase at
the sole discretion of the Board of Directors and payable in accordance with the
customary payroll practices of Company (but not less often than monthly). If
Xxxxxxx'x salary is increased by the Board of Directors, such increased salary
shall become the minimum amount of compensation payable to Xxxxxxx under this
Agreement, and will not be reduced thereafter. Xxxxxxx shall also remain a
participant in the Company's Management incentive Compensation Plan (the "Plan")
or any replacement or successor plan of the Company, and shall be eligible to
receive bonuses thereunder in accordance with the terms of the Plan.
6. ADDITIONAL EMPLOYMENT BENEFITS. Xxxxxxx shall be entitled to
participate in all benefits made generally available by Company to its Executive
Officers during the period covered by this Agreement, including, without
limitation, vacations, pension plans, profit sharing plans, hospitalization
insurance, health and accident insurance, disability insurance, group term life
insurance, automobile allowances, and all other fringe benefits which may be
provided by Company for any of its Executive Officers during the term of
employment pursuant to this Agreement.
7. INDEMNIFICATION. Company shall indemnify and hold Xxxxxxx harmless
for any actions taken or decisions made by him in good faith while performing
services in his capacity as Chairman, Chief Executive Officer or Director of
Company during the term of this Agreement. To the extent permitted by law,
Company shall pay, indemnify, and hold Xxxxxxx harmless from any liability, cost
or expense (including, without limitation, reasonable attorneys' fees) incurred
by him in the defense of any claim, proceeding or action arising out of his
performance of services for Company, or out of his status as an Officer or
Director of Company. Company will use its best
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efforts to obtain coverage for Xxxxxxx under any insurance now in force or
hereafter obtained during the term of this Agreement covering any employee,
officer or director of Company. Notwithstanding the foregoing, Company does not
intend to and shall not indemnify Xxxxxxx for any act or omission by him
constituting fraud or willful misconduct.
8. TERMINATION. Xxxxxxx'x rights under this Agreement shall continue
until expiration of the term under Section 2 hereof, unless prior thereto: (i)
Xxxxxxx dies; (ii) Xxxxxxx is dismissed without cause pursuant to Section 9
hereof; (iii) Xxxxxxx is dismissed for cause as defined in Section 10 hereof; or
(iv) Company determines that Xxxxxxx has become disabled, as provided in Section
11 hereof.
9. EARLY TERMINATION.
(a) 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
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applicable Stock Option Plan including without limitation for a period of not
less than ninety (90) days, provided, further, 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. "Change in control" shall be deemed to occur if any person or
affiliated group acquires more than Twenty-Five Percent of the outstanding
common stock of the Company. Xxxxxxx hereby acknowledges that as a condition of
his right to receive the payments provided for in this Section he will be
required and hereby agrees to execute and deliver to Company a form of release
and any other documents reasonably requested by Company to acknowledge full
satisfaction by Xxxxxxx of Company's obligations under this Agreement.
(b) If Xxxxxxx'x employment is terminated due to death or
disability, Company shall, thereafter, pay to Xxxxxxx or the estate or legal
representative of Xxxxxxx an amount equal to the payment due under Section 9(a)
hereof upon termination of this Agreement.
10. TERMINATION FOR CAUSE.
(a) Anything herein to the contrary notwithstanding, Company
shall have the right to terminate Xxxxxxx'x employment hereunder for cause, as
such terms are defined in the following section.
(b) For the purpose of this Section 10, the term "cause" means
(i) fraud, misappropriation, embezzlement, intentional and material damage to
the property of Company; or (ii) material breach of any of the provisions of
this Agreement described in Section 12.
(c) Upon termination of Xxxxxxx'x employment for cause
pursuant to this Section 10, Xxxxxxx shall not be entitled to receive any
further compensation other than accrued benefits under profit sharing or pension
plans, if any, and shall be completely relieved of his position as an officer
and director of Company, its subsidiaries and affiliates, and Xxxxxxx
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covenants and agrees to deliver at the termination date all resignations
necessary to effect his termination as an employee, officer and director.
11. DISABILITY.
(a) If, during the term of this Agreement, Xxxxxxx contracts
an illness or other disability which prevents performance by him of his duties
as an Executive Officer for a consecutive period of six (6) months or more, then
Company at its option, may at any time thereafter terminate this Agreement by
serving thirty (30) days written notice thereof on Xxxxxxx and this Agreement
shall terminate and come to an end upon the date set forth in said notice as if
such date were the termination date of this Agreement. If prior to the date
specified in such notice, Xxxxxxx'x illness or incapacity shall have been
terminated and he is physically and mentally able to perform his duties as an
Executive Officer and shall have taken up and is performing such duties on a
full time basis, he shall be entitled to resume employment hereunder as though
such notice had not been given.
(b) During any period of disability and prior to the
termination of this Agreement as in this Section provided, Xxxxxxx shall
continue to be paid in full by Company in accordance with the provisions of
Section 5, except that Company shall deduct from Xxxxxxx'x compensation as
herein provided an amount equal to any disability insurance payments received by
Xxxxxxx for such period pursuant to disability insurance policies paid for and
maintained by Company for the benefit of Xxxxxxx.
(c) If there should be any dispute between the parties as to
Xxxxxxx'x physical or mental disability at any time, such questions shall be
settled by the majority opinion of three impartial, reputable physicians, one of
whom shall be selected by Company, another by Xxxxxxx, and the third by the two
physicians selected by Company and Xxxxxxx. The certificate of two such
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physicians as to the matter in dispute shall be final and binding on the
parties.
12. CONFIDENTIALITY AND NON-COMPETITION.
(a) Xxxxxxx will not at any time during the term of this
Agreement or thereafter, except as authorized by Company, divulge, furnish or
make accessible to any person, firm, corporation or other entity, any such
confidential and sensitive information and any other information not otherwise
publicly available which he presently possesses or which he may obtain during
the course of his employment with respect to the business, customers and affairs
of Company or any subsidiary or affiliate of Company or trade secrets,
developments, know-how methods or other information and data pertaining to
practices, equipment, developments or any confidential or secret aspect of the
business of Company or any subsidiary or affiliate of Company, and that all such
matters and information shall be kept strictly and absolutely confidential.
Xxxxxxx, upon termination of his employment, irrespective of the time, manner or
cause of termination, will surrender and deliver to Company all lists, books,
records and data of every kind relating to or in connection with the business of
Company or any subsidiary or affiliate of Company, and all property belonging to
Company and any subsidiary or affiliate of Company.
(b) During the term of this Agreement and, in the event that
Xxxxxxx'x employment with Company is terminated for any reason other than a
change in control as defined in Section 9 hereof, for a period of two (2) years
after such termination, Xxxxxxx shall not, directly or indirectly, engage in or
contract with others to engage in any business enterprise, line of work,
consulting contract, joint venture or other arrangement which conducts a
business or businesses substantially similar to the business conducted by
Company in any area in which Company or any of its affiliates or subsidiaries
provides or plans to provide air transportation to the public. Xxxxxxx
acknowledges that the geographic area covered hereby, and the period and nature
of the
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agreed restrictions are reasonable and necessary for the protection of
the business of Company. All provisions of this paragraph concerning
non-competition are severable; and while it is the intention of the parties that
all of said provisions shall be enforceable, if any one of the same shall be
held to be unenforceable in whole or in part, the remainder shall continue to be
in full force and effect.
13. IRREPARABLE INJURY. Xxxxxxx acknowledges that his compliance with
his duties and obligations under Section 12 is necessary to protect the goodwill
and other proprietary interests of Company and the purposes and essence of this
Agreement. Xxxxxxx acknowledges that a breach of his duties and obligations
under Section 12 will result in irreparable and continuing damage to Company for
which there will be no adequate remedy at law; and agrees that, in the event of
any breach of any of the aforesaid duties and obligations, Company and its
successors and assigns shall be entitled to injunctive or other equitable relief
and to such other and further relief as may be proper.
14. ASSIGNMENT AND SUCCESSORS IN INTEREST. To the extent that the
obligations provided for herein require the personal performance of Xxxxxxx,
Xxxxxxx'x rights, interests and obligations as provided herein may not be
assigned. Except as otherwise provided in the immediately preceding section of
this sentence, all rights privileges and obligations of the parties hereto shall
inure to the benefit of and be binding upon their respective successors,
assigns, heirs, executors, administrators and estates.
15. NOTICE. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U. S. registered or certified
mail; if to Company, at Xxxx Xxxxxx Xxx 00000, Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxx 00000; if to Xxxxxxx, at P. O. Xxx 00000, Xxxxxxxx,
Xxxxxxxx, 00000, or such other address as either party may specify in a
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written notice to the other party.
16. ENTIRE AGREEMENT AND AMENDMENT. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements, whether
written or oral, relating to the object matter herein. Any amendment hereto
shall be in writing and executed by the duly authorized representatives of each
party.
17. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
18. SEVERABILITY. If any portion of this Agreement shall be held
unenforceable for any reason, the same shall not affect the validity or
enforceability of the remaining provisions contained herein.
19. HEADINGS. The section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESS: COMAIR HOLDINGS, INC.
/s/ Xxxxx X. Xxxxxxxxxxxx BY: /s/ Xxxxx X. Xxxxxxx
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/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
