Exhibit 10.16
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of this 17th
day of November, 1997.
BY AND BETWEEN AIRTRAN HOLDINGS, INC.,
a Nevada corporation, hereinafter
referred to as the "Company"
AND Xxxxx X. Xxxxxx,
an individual, hereinafter referred
to as "Jordan"
WITNESSETH:
1. EMPLOYMENT. Company hereby retains and employs Jordan to serve in the
----------
capacity of consultant to the Company. Jordan accepts such employment upon
the terms and conditions herein set forth. For all purposes, Jordan shall
be treated as an employee of the Company during the term of this Agreement.
2. TERM. The term of this Agreement shall commence on November 17, 1997 and
----
shall continue until December 31, 2004, unless terminated earlier in
accordance herewith.
3. DUTIES. During the term of this Agreement, Jordan shall perform upon
------
request of the Company, such duties and functions as may be necessary or
desirable to consult and otherwise participate in the defense of litigation
involving the Company relating to events taking place prior to the date
hereof. The parties agree that Jordan will only devote a limited portion of
his time and attention to the performance of his duties for the Company and
will likely h ave other commitments that may interfere with requested
services hereunder. Jordan agrees to use his good faith efforts to be
available for the purposes set forth herein when sufficient advance notice
is provided by the Company.
4. COMPENSATION. As compensation for his services hereunder, Jordan shall
------------
receive an annual base salary of (i) $100,000 per annum for the years 1998
through 2002, and (ii) $20,000 per annum for the years 2003 and 2004. Such
salary shall be payable quarterly or at other intervals agreeable to Jordan
and the Company. Such annual base salary shall be prorated for any partial
period of employment. The Company shall deduct from each salary payment any
and all sums required to be deducted by the Company for Social Security,
federal and state withholding taxes, and any other federal or local tax or
charge, whether now in effect or hereafter enacted or required, on such
compensation.
5. REIMBURSEMENT OF EXPENSES. The Company shall reimburse Jordan for his
-------------------------
reasonable and necessary out-of-pocket expenses incurred in connection with
the performance of services hereunder.
1
6. BENEFITS.
--------
(a) Jordan and his wife and dependents shall have lifetime pass privileges
on Company flights, consistent with the most favorable pass privileges
available to any Company executives as in effect from time to time.
(b) Jordan and his wife shall have the right during their lifetimes to
continuing coverage in the Company's health insurance plan in effect from
time to time. So long as this Agreement remains in effect, such coverage
shall be provided at the Company's expense. After the termination or
expiration of this Agreement, such participation shall be at Jordan's cost,
not to exceed the COBRA (or equivalent) premium that would be chargeable
with respect to such coverage.
(c) Jordan shall not be entitled to any other benefits as an employee of
the Company.
7. NONDISCLOSURE. Jordan shall not, at any time during or after the
-------------
termination of his employment hereunder, except when acting on behalf of
the Company, make use of or disclose to any person, corporation, or other
entity, for any purpose whatsoever, any trade secret or other confidential
information concerning the Company's business, finances or marketing
information (collectively referred to as the "Proprietary Information").
For the purposes of this Agreement, trade secrets and confidential
information shall mean information disclosed to Jordan or known by him as a
consequence of his employment by the Company, whether or not pursuant to
this Agreement, and not generally known in the industry, concerning the
business, finances, methods, operations and marketing of the Company;
provided that trade secrets shall not include information publicly
available or otherwise publicly disclosed except for public disclosures in
violation of this Agreement. Jordan acknowledges that trade secrets and
other items of confidential information, as they may exist from time to
time, are valuable and unique assets of the Company, and that disclosure of
any such information could cause substantial injury to the Company.
8. TERMINATION. The Company may terminate Jordan's employment hereunder only
-----------
if Jordan has willfully and unreasonably neglected or refused to perform
his duties or responsibilities reasonably requested hereunder and fails to
cure such breach within ten (10) days after written notice thereof from the
Company. Otherwise, this Agreement may not be terminated without Jordan's
consent.
9. REMEDIES. Jordan acknowledges that a breach by him of any of the covenants
--------
contained in Section 7 of this Agreement could cause irreparable harm and
injury to the Company for which the Company may have no adequate remedy at
law. Jordan therefore agrees that, upon the occurrence of any breach or
threatened breach of such covenants, the Company may be entitled, in
addition to any damages it may have suffered as a result of the breach, to
an injunction against breach of any of said covenants.
10. ASSIGNMENT. This Agreement shall be binding upon and shall inure to the
----------
benefit of the successors and assigns of the Company. The services to be
rendered by Jordan to the Company are individual and personal, and
performance of such services may not be rendered to the Company on behalf
of Jordan by any other person.
2
11. MISCELLANEOUS.
-------------
(a) Entire Agreement. This Agreement rescinds and supersedes any and all
----------------
other agreements between the Company and Jordan with the exception of:
(i) Jordan's options to purchase stock in the Company, as more
specifically described in Exhibit "A" attached hereto, and (ii) that
certain Indemnification Agreement between the Company and Jordan
attached hereto as Exhibit "B." This Agreement contains the entire
understanding between the parties relative to the employment of
Jordan, there being no terms, conditions, warranties, or
representations other than those contained herein, and no amendment
hereto shall be valid unless made in writing and signed by both of the
parties hereto.
(b) Governing Law. This Agreement shall be construed, in accordance with
-------------
the laws of the State of Nevada.
(c) Severability. In the event that any provision herein shall be legally
------------
unenforceable, the remaining provisions nevertheless shall be carried
into effect. Although the parties believe Jordan's covenants contained
in Section 7 are fair and reasonable, if a court of competent
jurisdiction determines that one or more of the covenants is excessive
in duration or scope, the covenant shall be deemed modified and shall
be enforceable to the extent determined reasonable by the court.
(d) 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 (or at such other addresses as shall be
specified by like notices), and any notice however given, shall be
effective when received:
To Jordan: Xxxxx X. Xxxxxx
610 Wingspread
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Fax: (000) 000-0000
To the Company:
AirTran Holdings, Inc.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
(e) 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.
3
(f) 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.
(g) 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.
(h) Construction. Each party has had the opportunity to set forth in this
------------
Agreement all matters related to the subject hereof. Jordan and the
Company acknowledge the binding legal effect of this Agreement, that
this Agreement has been negotiated by the parties hereto and that each
party has, to the extent desired, sought legal counsel related to the
terms, conditions and effect of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first hereinabove written.
/s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
AIRTRAN HOLDINGS, INC.
By: /s/ D. Xxxxxx Xxxx
-----------------------
Title:
---------------------
4
EXHIBIT "A"
Outstanding Stock Options
------------------------------------------------------------------------------
DATE OF NUMBER OF EXERCISE EXPIRATION
GRANT SHARES PRICE DATE
------------------------------------------------------------------------------
June 17, 1993 2,400,000 $.166675 June 17, 2003
June 28, 1994 200,000 $ 3.125 June 28, 2004
January 26, 1995 150,000 $ 3.75 January 26, 2005
January 26, 1995 40,000 $ 5.125 January 26, 2005
January 30, 1996 250,000 $ 18.375 January 30, 2006
5
