EXHIBIT 10.44
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of this 1st day of July, 1998 (the "Effective Date"), by and between CCAIR,
Inc., a Delaware Corporation (the "Company" or "CCAIR") and Xxxx X. Xxxxxxxxxx
("Employee").
W I T N E S S E T H T H A T:
WHEREAS, Employee is currently employed by the Company and the Company
desires to continue to employ Employee; and Employee desires to continue to be
employed by the Company, upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Company and Employee desire to expressly set forth in this
Agreement the terms of Employee's employment with the Company; and
WHEREAS, the Company has determined that the best interests of the
Company would be served by entering into this Agreement with Employee; and
WHEREAS, the Company and Employee are both legally able, and not
restricted by prior agreements with other parties, to enter into this Agreement;
and
NOW, THEREFORE, the parties, for and in consideration of the mutual and
reciprocal covenants and agreements hereinafter contained, and intending to be
legally bound hereby, do contract and agree as follows:
1. Employment. The Company hereby employs Employee and Employee hereby
accepts employment by the Company and agrees to perform his duties and
responsibilities hereunder upon all of the terms and conditions as are
hereinafter set forth.
2. Duties. Employee shall serve the Company in the capacities of Vice
President-Finance. Employee shall be responsible for supervising and directing
all finances of the Company. Employee shall otherwise be responsible for
carrying out such other duties and services for the Company commensurate with
Employee's position, as may be designated from time to time by the Chief
Executive Officer of the Company (the "CEO").
3. Term of Employment. Employee's term of employment under this
Agreement shall commence on the Effective Date and shall terminate on the last
day of the calendar month which is twelve (12) calendar months after the
Effective Date, unless further extended as hereinafter set forth. Commencing on
each successive anniversary of the Effective Date, the Agreement shall
automatically be extended for an additional twelve (12) months without further
action by either party unless one party provides the other fifteen (15) days
written notice that such party does not wish to extend the term of this
Agreement. The fifteenth (15th) day following the date of such notice shall be
deemed to be a "Termination Date" for purposes of this Agreement.
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EXHIBIT 10.44
4. Extent of Service. Employee shall devote such time and attention as
is required to perform his obligations under this Agreement and will at all
times faithfully and industriously, consistent with his ability, experience and
talent, perform his duties hereunder under the direction of the CEO.
5. Compensation. During the term of this Agreement, the Company agrees
to pay to Employee, and Employee agrees to accept from the Company, in full
payment for services rendered by Employee and work to be performed by him under
the terms of this Agreement, the following:
A. During the first year under this Agreement, an annual base
salary of One Hundred Thousand Dollars ($100,000). Thereafter, the amount of
Employee's base salary shall be adjusted as determined by the Compensation
Committee of the Board of Directors of the Company. Employee's base salary for
each year shall be payable to him in accordance with the reasonable payroll
practices of the Company, as from time to time, in effect for executive
personnel (but in no event less often than monthly).
B. Employee shall participate in the Company's Bonus Plan, or any
successor bonus plan or program for key executives.
C. Discretionary compensation, bonuses and benefits in addition
to those provided for herein in such amounts and at such times as the
Compensation Committee of the Board of Directors of the Company shall determine.
6. Benefits. The Company shall provide Employee four weeks annual
vacation time, excluding Company holidays. In addition, the Company shall pay
for or provide Employee such benefits, including but not limited to coverage
under the Company's major medical, accident, health, dental, disability and life
insurance plans, as are available to other employees of the Company (and, to the
extent provided by such policies, Employee's dependents).
7. Reimbursement of Benefits. The Company agrees to promptly reimburse
Employee, within fifteen (15) days after presentation of receipts and other
appropriate documentation, for all reasonable, ordinary and necessary travel
costs and other necessary expenses incurred by Employee in performing his duties
pursuant to this Agreement.
8. Deductions. Deductions shall be made from Employee's compensation for
social security, federal and state withholding taxes, and any other such taxes
as may, from time to time, be required by governmental authority.
9. Termination. Employee's employment with the Company shall be
terminated as hereinafter provided.
A. Disability.
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EXHIBIT 10.44
(i) In the event Employee shall become mentally or
physically disabled so as to be unable to perform his duties hereunder (such
determination to be made solely by the Company) for six (6) consecutive months,
the Company shall have the right to terminate Employee's employment with the
Company upon the expiration of such six (6) month period; provided, however,
that the Company shall be obligated to provide Employee with the such severance
compensation and benefits as hereinafter provided.
(ii) In the event Employee's employment is terminated by
the Company due to a disability as provided herein, the Company shall continue
to provide Employee with the basic major medical insurance benefits maintained
by the Company and shall pay Employee such severance compensation as hereinafter
provided for a period (the "Severance Period") which shall be twelve (12) months
from the date of Employee's termination. Employee's severance compensation
("Severance Compensation") shall be determined as follows: during the Severance
Period Employee shall receive an amount equal to one hundred percent (100%) of
his annual base salary in effect at the commencement of his disability. In
addition, the Company shall pay Employee a prorated portion of any annual bonus
amount accrued through the Termination Date, provided, however, that such bonus
amount will be paid at the time that such bonus amounts are normally paid by the
Company. The CCAIR flight pass privileges currently granted to Employee will
continue for the Severance Period. However, such flight pass privileges will be
limited to flights on CCAIR only.
(iii) 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.
(iv) For purposes of this Agreement, Employee shall be
deemed to be disabled when he shall have been absent from his duties on a full
time basis for six (6) consecutive months.
(v) At the end of any disability (other than a disability
that results in the involuntary termination of Employee's employment with the
Company), Employee shall return to work and this Agreement shall continue as
though such disability had not occurred.
(vi) If Employee desires to return to work at the end of
any disability, but there is a dispute as to whether he is able to perform his
duties hereunder, the Company shall have sole discretion in determining whether
Employee is able to perform his duties hereunder on a full-time basis.
B. Death.
(i) Employee's employment with the Company shall terminate
immediately upon Employee's death; provided, however, that the Company shall be
obligated to provide Employee with such severance compensation and benefits as
hereinafter provided.
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EXHIBIT 10.44
(ii) In the event Employee's employment with the Company
is terminated due to his death, the Company shall continue to provide Employee's
dependents with the basic major medical insurance benefits maintained by the
Company (provided that such dependents were covered under the applicable Company
benefit plan at the time of Employee's death) and shall pay Employee's estate
Employee's "Severance Compensation" for the "Severance Period." For purposes of
this Paragraph 9B, the Severance Period shall be twelve (12) months from the
date of Employee's death. The amount of Employee's Severance Compensation shall
be determined as follows: during the Severance Period, an amount equal to one
hundred percent (100%) of Employee's annual base salary in effect at the time of
his death. In addition, the Company shall pay Employee a prorated portion of any
annual bonus amount accrued through the Termination Date, provided, however,
that such bonus amount will be paid at the time that such bonus amounts are
normally paid by the Company.
(iii) Nothing contained herein shall be construed to
affect Employee's rights under any life insurance or similar policy, whether
maintained by the Company, Employee or another party.
C. Termination by Employee. Employee may terminate his employment
with the Company as provided in paragraph 3. In such event, the Company shall
not be liable to Employee for any compensation, bonus or fringe benefits after
the date of termination of employment.
D. Termination by the Company.
(i) Without Cause. The Company may, without cause,
terminate this Agreement at any time by giving to Employee fifteen (15) days
written notice by Certified Mail, Return Receipt Requested, at the last known
residence of Employee, and such termination shall be effective on the fifteenth
(15th) day following the date of such notice (the "Termination Date"). At the
option of the Company, Employee's employment shall be immediately terminated
upon receipt of the notice, in which case Employee shall continue to receive his
full base salary and related benefits through the Termination Date. In addition,
the Company shall continue to provide Employee with the basic major medical
insurance benefits maintained by the Company and shall pay Employee "Severance
Compensation" for the "Severance Period." For purposes of this paragraph D1, the
Severance Period shall be twelve (12) months from the Termination Date. The
amount of Employee's Severance Compensation shall be determined as follows:
during the Severance Period, an amount equal to one hundred percent (100%) of
Employee's annual base salary in effect at the Termination Date. In addition,
the Company shall pay Employee a prorated portion of any annual bonus amount
accrued through the Termination Date, provided however, that such bonus amount
will be paid at the time that such bonus amounts are normally paid by the
Company. In the discretion of the Company, the Severance Compensation may be
paid, in a single lump sum payment or periodic payments in accordance with the
reasonable payroll practices of the Company as from time to time in effect for
executive personnel (but in no event less often that monthly). The CCAIR flight
pass privileges currently granted to Employee will continue for the Severance
Period. However, such flight pass privileges will be limited to flights on CCAIR
only.
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EXHIBIT 10.44
(ii) For "Cause". Company may terminate Employee's
employment under this Agreement immediately for "cause". In such event, the
Company shall not be liable to Employee for any compensation, bonus or benefits
after the date of termination of employment. Cause shall be defined as any of
the following: (i) unauthorized misconduct in the performance of Employee's
duties hereunder, (ii) commission of an act of dishonesty by Employee or
personal misconduct, which act is harmful to the Company, (iii) breach of any
provision of this Agreement. Any termination under this Paragraph D2 shall take
effect immediately upon Employee's receipt of written notice from the Company to
Employee.
E. Acceleration of Stock Options. In the event that Employee's
employment is terminated by the Company without "cause" (as defined in Paragraph
9D), as of the applicable Termination Date, any options to purchase shares of
common stock of the Company, regardless of when granted and notwithstanding the
terms of any applicable option agreement to the contrary, shall become
immediately exercisable by written notice by Employee to the President of the
Company and shall remain exercisable through the Severance Period. The procedure
for exercise shall be the procedure established in the applicable option
agreements.
10. Nonsolicitation and Confidentiality.
A. Nonsolicitation. For so long as Employee is an employee of the
Company and continuing for one (1) year thereafter, Employee shall not, without
the prior written consent of the Company, directly or indirectly, as a sole
proprietor, member of a partnership, stockholder or investor, officer or
director of a corporation, or as an employee, associate, consultant or agent of
any person, partnership, corporation or other business organization or entity
other than the Company: (i) solicit or endeavor to entice away from the Company
or any of its subsidiaries any person or entity who is, or, during the then most
recent 12-month period, was employed by, or had served as an agent of, the
Company or any of its subsidiaries; or (ii) solicit or endeavor to entice away
from the Company or any of its subsidiaries any person or entity who is, or was
within the then most recent 12-month period, a customer or client (or reasonably
anticipated (to the general knowledge of Employee or the public) to become a
customer or client) of the Company or any of its subsidiaries.
B. Confidentiality. Employee covenants and agrees with the
Company that he will not at any time, except in performance of his obligations
to the Company hereunder or with the prior written consent of the Company,
directly or indirectly, disclose any secret or confidential information that he
may learn or has learned by reason of his association with the Company or any of
its subsidiaries and affiliates. The term "confidential information" includes
information not previously disclosed to the public or to the trade by the
Company's management, or otherwise in the public domain, with respect to the
Company's or any of its affiliates' or subsidiaries', products, facilities,
applications and methods, trade secrets and other intellectual property,
systems, procedures, manuals, confidential reports, price lists, customer lists,
technical information, financial information (including the revenues, costs or
profits associated with the Company), business plans, prospects or
opportunities, but shall exclude any information which (i) is or becomes
available to the public or is generally known in the industry or industries in
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EXHIBIT 10.44
which the Company operates other than as a result of disclosure by Employee in
violation of his agreements under this paragraph 10B or (ii) Employee is
required to disclose under any applicable laws, regulations or directives of any
government agency, tribunal or authority having jurisdiction in the matter of
under subpoena or other process of law.
C. Exclusive Property. Employee confirms that all confidential
information is and shall remain the exclusive property of the Company. All
business records, papers and documents kept or made by Employee relating to the
business of the Company shall be and remain the property of the Company, except
for such papers customarily deemed to be the personal copies of Employee.
D. Injunctive Relief. Without intending to limit the remedies
available to the Company, Employee acknowledges that a breach of any of the
covenants contained in this Section 10 may result in material and irreparable
injury to the Company or its affiliates or subsidiaries for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of such a breach or threat thereof,
the Company shall be entitled to seek a temporary restraining order and/or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Section 10 or such other relief as may be required
specifically to enforce any of the covenants in this Section 10. If for any
reason, it is held that the restrictions under this Section 10 are not
reasonable or that consideration therefor is inadequate, such restrictions shall
be interpreted or modified to include as much of the duration and scope
identified in this Section 10 as will render such restrictions valid and
enforceable.
11. Assignment. This Agreement, as it relates to the employment of
Employee, is a personal contract and the rights and interests of Employee
hereunder may not be sold, transferred, assigned, pledged or hypothecated.
However, this Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns including, without limitation, any
corporation or other entity into which the Company is merged or which acquires
all or substantially all of the outstanding common stock or assets of the
Company.
12. Invalid Provisions. The invalidity of any one or more of the clauses
or words contained in this Agreement shall not affect the reasonable
enforceability of the remaining provisions of this Agreement, all of which are
inserted herein conditionally upon being valid in laws; and in the event one or
more of the words or clauses contained herein shall be invalid, this instrument
shall be construed as if such invalid words or clauses had not been inserted or,
alternatively, said words or clauses shall be reasonably limited to the extent
that the applicable court interpreting the provisions of this Agreement
considers to be reasonable.
13. Specific Performance. The parties hereby agree that any violation by
Employee of the covenants and agreements contained herein shall cause
irreparable damage to the Company, and the Company may, as a matter of course,
enjoin and restrain said violation by Employee by process issued out of a court
of competent jurisdiction, in addition to any other remedies that said court may
see fit to award.
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EXHIBIT 10.44
14. Binding Effect: All the terms of the Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
15. Waiver of Breach or Violation Not Deemed Continuing. The waiver by
the Company of any provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach hereof.
16. Entire Agreement; Law Governing. This Agreement supersedes any and
all other agreements, either oral or in writing, between the parties hereto with
respect to the subject matter hereof, by and between the Company and Employee,
and contains all the covenants and agreements among the parties with respect to
such subject matter. This Agreement shall be construed in accordance with the
laws of the state of North Carolina.
17. Paragraph Headings. The Paragraph headings contained in this
Agreement are for convenience only and shall in no manner be construed as a part
of this Agreement.
IN WITNESS WHEREOF, the Company has hereunto caused this Agreement to be
executed by a duly authorized officer and Employee has hereunto set his hand as
of the day and year first above written.
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EMPLOYEE
CCAIR, Inc.
(CORPORATE SEAL)
By:
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Attest:
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