EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
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This Agreement is entered into as of this 28th day of December, 2006,
between AirNet Systems, Inc. ("AirNet") and Xxxx Xxxxxxxxxxx ("Xxxxxxxxxxx").
WHEREAS, Xxxxxxxxxxx has been an employee of AirNet since August 1999 and
has been employed by AirNet as its President and Chief Executive Officer
pursuant to the terms of an employment agreement (the "Employment Agreement")
since March 1, 2001 (and in this capacity holds other various positions with
AirNet and its affiliates), has held various positions as a director, officer
and/or manager with AirNet's subsidiaries and affiliates and is a member of the
Board of Directors of AirNet (the "Board") and serves as the Chairman of the
Board;
WHEREAS, AirNet and Xxxxxxxxxxx have mutually agreed that it is in the best
interests of both parties for Xxxxxxxxxxx to resign as AirNet's President and
Chief Executive Officer, to terminate his employment with AirNet, to resign from
all positions as a director, officer and/or manager of each of AirNet's
subsidiaries and affiliates effective as of the Separation Date, and to resign
his position as a member of the Board and his position as Chairman of the Board
effective as of the Separation Date;
WHEREAS, under such circumstances, Xxxxxxxxxxx would not be entitled to
severance payments under the Employment Agreement;
WHEREAS, AirNet wishes to provide certain severance payments to
Xxxxxxxxxxx, as outlined in this Agreement, following his resignation;
WHEREAS, Xxxxxxxxxxx provided valuable service to AirNet during his
employment as President and Chief Executive Officer, and AirNet desires to have
access to his continued services on a consulting basis through a transition
period to a new Chief Executive Officer;
WHEREAS, the parties wish for this Agreement to supersede the provisions of
the Employment Agreement and to render the terms of the Employment Agreement
null, void and of no effect;
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, AirNet and Xxxxxxxxxxx hereby mutually agree as
follows:
1. TERMINATION OF EMPLOYMENT. Xxxxxxxxxxx shall resign as President and
Chief Executive Officer of AirNet effective as of December 28, 2006. The parties
agree that Xxxxxxxxxxx shall formally separate from service as an employee,
director, member or manager with AirNet and each of its subsidiaries and
affiliates effective as of December 31, 2006 (the "Separation Date") and shall
resign from the Board and as Chairman of the Board effective as of
the Separation Date. On the Separation Date, (a) Xxxxxxxxxxx'x employment with
AirNet and all further compensation and remuneration of Xxxxxxxxxxx as an
employee and all eligibility of Xxxxxxxxxxx under AirNet's benefit plans shall
terminate, except as otherwise provided in this Agreement or by applicable law,
and (b) Xxxxxxxxxxx shall, without any further action required, resign from the
Board and from his position as Chairman of the Board. Xxxxxxxxxxx shall continue
to provide services and to devote his skills, time and attention as an employee
of AirNet and in furtherance of the business and interests of AirNet between
December 28, 2006 and the Separation Date. During such period Xxxxxxxxxxx shall
report to the new Chief Executive Officer appointed by the Board, and shall
receive all compensation and benefits to which he is entitled as an employee of
AirNet until the Separation Date.
2. SEVERANCE PAYMENTS. Following the termination of his employment on the
Separation Date, Xxxxxxxxxxx will receive 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 the base salary by 365 and
multiplying such amount by the number of unused vacation days) and any business
expenses paid by Xxxxxxxxxxx that are unreimbursed--all, as of the Separation
Date;
(b) a single lump sum payment, payable by January 15, 2007, equal to Four
Hundred Eighty-Seven Thousand Five Hundred Dollars ($487,500);
(c) a single lump sum payment, payable on or before March 15, 2007, equal
to the annual bonus earned by Xxxxxxxxxxx for calendar year 2006, which bonus
shall be calculated by the Compensation Committee of the Board (i) without
regard to Xxxxxxxxxxx'x personal objectives for calendar year 2006 and (ii) with
respect to the financial performance criteria, on an equitable basis with other
senior executives of AirNet;
(d) a single lump sum payment, payable by January 15, 2007, equal to the
premiums (determined as of January 1, 2007) required for Xxxxxxxxxxx and his
eligible dependents, if any, to continue their coverage under AirNet's group
health plan pursuant to the provisions of Section 4980B of the Internal Revenue
Code of 1986, as amended (COBRA);
(e) payment of up to $15,000 for outplacement services approved by AirNet's
new Chief Executive Officer to be paid promptly following AirNet's receipt of
invoices duly reflecting such services, with such services to be provided for up
to six months following the Separation Date or until Employee accepts new
employment, whichever occurs first; and
(e) any rights and benefits (if any) payable to Xxxxxxxxxxx under the
employee benefit plans and programs of AirNet, determined in accordance with the
applicable terms and provisions of such plans and programs.
3. CONSULTING SERVICES.
(a) Effective as of the first day after the Separation Date, AirNet shall
retain Xxxxxxxxxxx as an independent contractor consultant, and Xxxxxxxxxxx
hereby accepts such
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consulting relationship as services for hire, upon the terms and conditions set
forth in this Agreement.
(b) Xxxxxxxxxxx agrees to provide such consulting services in connection
with the transition to a new Chief Executive Officer as are reasonably requested
by AirNet, through the new Chief Executive Officer or AirNet's Board of
Directors (the "Consulting Services").
(c) Xxxxxxxxxxx shall devote sufficient consulting time necessary to
provide the Consulting Services during the term set forth in Section 3(e) below.
Notwithstanding the foregoing, the parties agree that Xxxxxxxxxxx shall be
required to dedicate at least 40 days prior to April 30, 2007 and shall be
compensated for at least 40 days of Consulting Services during such four-month
period, unless Xxxxxxxxxxx is unwilling or unable to perform such Consulting
Services in accordance with the terms hereof. It is understood and agreed that
Xxxxxxxxxxx'x commitment of time may vary from week to week and that not all
such Consulting Services may be provided at AirNet's offices, nor during regular
business hours.
(d) In consideration for the Consulting Services to be provided pursuant to
this Agreement, AirNet shall pay Xxxxxxxxxxx a consulting fee of $2,000 per day
for Consulting Services, whether performed at AirNet's offices or in another
location designated by AirNet and whether performed for a full day or for a
portion thereof (each, a "Consulting Fee") throughout the term specified in
Section 3(e). Any Consulting Fees shall be payable on a monthly basis by check
or wire transfer to an account designated in writing (or via e-mail) by
Xxxxxxxxxxx within five (5) business days following the end of each month during
the term specified in Section 3(e). AirNet will pay for or reimburse Xxxxxxxxxxx
for all reasonable expenses incurred on behalf of AirNet and substantiated with
receipts, including reimbursement for rental car expenses or for mileage at the
IRS standard rate for business related travel (other than to and from AirNet's
offices). Xxxxxxxxxxx acknowledges that he will be responsible for all other
automobile expenses whether personal or business related. Notwithstanding the
foregoing, AirNet acknowledges that, to the extent Xxxxxxxxxxx needs to use air
travel in order to fulfill his Consulting Service duties hereunder, coach class
flights shall constitute a reasonable expense. Xxxxxxxxxxx agrees to keep
reasonably detailed records of any reasonable expenses for which he seeks to be
reimbursed by AirNet and to provide such records to AirNet.
(e) Unless otherwise terminated pursuant to the provisions hereof, the
consulting relationship under this Agreement shall commence on the date
immediately after the Separation Date and continue in effect until June 30,
2007, unless the parties mutually agree to extend the term. Notwithstanding the
foregoing, either party hereto may terminate such Consulting Services and the
consulting relationship upon two (2) weeks' prior written notice to the other
party.
4. NON-COMPETITION.
(a) Except with the prior written consent of AirNet, for a period of
eighteen (18) months immediately following the Separation Date, Xxxxxxxxxxx
shall not, directly or indirectly for the benefit of himself or others, either
as principal, agent, manager, consultant, partner, owner, employee, distributor,
dealer, representative, joint venturer, creditor or otherwise, engage in any
work involving any of the following: (i) any activity involving the delivery of
time sensitive packages or which competes with any service or product of AirNet
now in existence or
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in existence as of the Separation Date; (ii) the promotion, solicitation,
attempt to solicit, license or sell, in any geographic area where AirNet or its
successor in interest conducts business of any product or service in competition
with the products or services of AirNet; (iii) the solicitation, attempt to
solicit, management, maintenance, sale or license of any product or service in
competition with the products or services of AirNet to any business which was a
customer of AirNet during the one year period immediately preceding the
Separation Date; and (iv) the disclosure to any person of the names of any of
the customers of AirNet or any other information pertaining to them unless such
information can be obtained from public sources.
(b) Xxxxxxxxxxx acknowledges that the business of AirNet is national in
scope and the national scope is the reason for the geographic scope and/or
duration of the restrictions on competition and solicitation provided in this
Paragraph 4. Satisfaction of the eighteen (18) month period described in this
Paragraph 4 shall be suspended during the time of any activity of Xxxxxxxxxxx
prohibited by this Paragraph 4. In the event a court grants injunctive relief to
AirNet for a failure of Xxxxxxxxxxx to comply with the provisions contained in
this Paragraph 4, the noncompetition period shall commence anew with the date
such relief is granted.
(c) The restrictions provided in this Paragraph 4 may be enforced by an
action at law, or in equity, including but not limited to, an action for
injunction and/or an action for damages. The provisions of this Paragraph 4
constitute an essential element of this Agreement, without which the Agreement
would not have been affected by AirNet. The provisions of this Paragraph 4 shall
survive the termination of any other obligations of Xxxxxxxxxxx under this
Agreement for a period necessary to enforce its provisions. If the scope of any
restriction contained in this Paragraph 4 is too broad to permit enforcement of
such restriction to its fullest extent, then such restriction shall be enforced
to the maximum extent permitted by law and Xxxxxxxxxxx hereby consents and
agrees that such scope may be judicially modified in any proceeding brought to
enforce such restriction.
5. CONFIDENTIAL INFORMATION. Xxxxxxxxxxx will hold in a fiduciary capacity,
for the benefit of AirNet, all secret or confidential information, knowledge,
and data relating to AirNet and its affiliates, that shall have been obtained by
Xxxxxxxxxxx during his employment with AirNet and that is not public knowledge
(other than by acts by Xxxxxxxxxxx or his representatives in violation of this
Agreement). After the Separation Date, Xxxxxxxxxxx will not, without the prior
written consent of AirNet, communicate or divulge any such information,
knowledge, or data to anyone other than AirNet or those designated by it, unless
the communication of such information, knowledge or data is required pursuant to
a compulsory proceeding in which Xxxxxxxxxxx'x failure to provide such
information, knowledge, or data would subject him to criminal or civil sanctions
and then only with prior notice to AirNet.
6. RELEASE.
(a) In consideration of the premises, and the payments, property and
actions described in the foregoing paragraphs, Xxxxxxxxxxx hereby releases and
forever discharges AirNet, its operating companies or entities, subsidiary
companies or entities, its parent companies or entities, its affiliated
companies or entities, their shareholders, officers, directors, trustees,
employees, associates, agents, benefit plans, successors and assigns from any
and all claims, demands or rights of action, whether contractual, common law or
statutory, whether known or unknown, which may in
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any way relate to Xxxxxxxxxxx'x employment and association with AirNet or the
termination of that employment and association, including, but not limited to
claims arising under the Age Discrimination in Employment Act, as well as any
other such claim which exists as of the date this Agreement is executed, except
for those, if any, arising under this Agreement.
(b) Xxxxxxxxxxx also agrees to keep confidential and not disclose to any
person or any entity or encourage or facilitate the disclosure to any person or
entity the terms of this Agreement, including, but not limited to, the monetary
amount of this Agreement; provided, that the foregoing shall not restrict
disclosure to Xxxxxxxxxxx'x spouse, counsel, accountants, financial advisors or
others with a reasonable need to know such information or as required by
compulsory process. Xxxxxxxxxxx also agrees that he will not voluntarily make
any oral or written statements or reveal any information to any person, company,
or agency which may be construed to be negative, disparaging or damaging to
AirNet's reputation or AirNet's business, or which would interfere in any way
with AirNet's business relations with the general public.
(c) Xxxxxxxxxxx acknowledges that he has been advised by this writing to
consult with an attorney and has had the opportunity to take at least 21 days in
which to review and consider this Agreement and to consult with legal counsel
with respect thereto. Xxxxxxxxxxx further acknowledges that he has entered into
this Agreement voluntarily and of his own free will. Xxxxxxxxxxx acknowledges
his right to revoke this Agreement within seven days following the execution
hereof by giving written notice thereof to AirNet. In the event of such
revocation, this Agreement shall become null and void and no party hereto shall
have any rights or obligations hereunder.
7. NO ADMISSION. This Agreement shall not be construed in any manner as an
admission by either party that such party has violated any law, policy or
procedure or acted wrongfully with respect to the other party or any other
person, or that either party has any rights whatsoever against the other party.
Each party acknowledges that the other party specifically disclaims any
liability to such party arising from Xxxxxxxxxxx'x employment relationship with
AirNet or the termination of that relationship.
8. INDEMNIFICATION.
(a) AirNet agrees that if Xxxxxxxxxxx is made a party, or is threatened to
be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director, officer or employee of AirNet or is or was serving at the request of
AirNet as a director, officer, manager, member, employee or agent of another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise, Xxxxxxxxxxx shall be indemnified and held harmless by AirNet
to the fullest extent legally permitted or authorized by AirNet's Amended and
Restated Articles of Incorporation or Code of Regulations against all expenses
(including attorney's fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by Xxxxxxxxxxx in connection therewith, and
such indemnification shall continue as to Xxxxxxxxxxx even if he has ceased to
be a director, officer, manager, member, employee or agent of AirNet or such
other entity and shall inure to the benefit of Xxxxxxxxxxx'x heirs, executors
and administrators; provided, however, that nothing herein is intended to
indemnify Xxxxxxxxxxx for any acts committed which fall outside the scope of his
employment with AirNet or
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this membership on AirNet's Board or for acts for which Xxxxxxxxxxx would not be
entitled to indemnification pursuant to the provisions of AirNet's Amended and
Restated Articles of Incorporation or Code of Regulations.
(b) AirNet agrees to advance to Xxxxxxxxxxx expenses incurred by him in
connection with any such action, suit or proceeding, in accordance with, and
subject to receipt of the undertaking set forth in, AirNet's Code of
Regulations.
(c) If and to the extent that AirNet maintains a directors' and officers'
liability insurance policy with respect to other senior executives and/or
directors of AirNet, AirNet agrees to continue and maintain such insurance
policy coverage for Xxxxxxxxxxx for a period of five years from the Separation
Date on substantially similar terms as the other senior executives and/or
directors covered thereby.
9. 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, 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 AirNet: AirNet Systems, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
If to Xxxxxxxxxxx: Xxxx Xxxxxxxxxxx
At the last address on file
with AirNet
10. TAXES. Anything in this Agreement to the contrary notwithstanding, all
payments required to be made hereunder by AirNet to Xxxxxxxxxxx will be subject
to withholding of such amounts relating to taxes as AirNet 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, AirNet 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.
11. 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.
12. ENTIRE AGREEMENT/AMENDMENT. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
have made no
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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
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ITS: Lead Director
/s/ Xxxx X. Xxxxxxxxxxx
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Dated: December 28, 2006
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