Exhibit 10.16
EXECUTION COPY
AMENDMENT TO THE XXXXX X. XXXXXX EMPLOYMENT AGREEMENT
THIS AMENDMENT made as of December 19, 2001 (the "Amendment") is
entered into by and between Aloha Airgroup, Inc., a Hawaii corporation (the
"Employer"), and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS the Employer and the Executive have entered into an amended and
restated employment agreement made as of May 11, 1994, as amended as of December
1, 1995 and November 1, 2000 (the "Employment Agreement");
WHEREAS the Employer has entered into a merger agreement among Hawaiian
Airlines, Inc., TurnWorks Acquisition III, Inc. and TurnWorks, Inc., pursuant to
which the Employer intends to participate in the mergers described therein (the
"Mergers");
WHEREAS, in contemplation of the Mergers, the parties hereto desire to
further amend the Employment Agreement;
WHEREAS, the Employment Agreement as amended by this Amendment shall
continue in effect in accordance with its terms after the Mergers as an
obligation of the surviving corporation; and
WHEREAS Section 10 of the Employment Agreement authorizes the parties
hereto to amend the Employment Agreement;
NOW, THEREFORE, in consideration of the recitals and agreements herein
contained, the parties hereto agree to amend the Employment Agreement as
follows:
1. EFFECTIVENESS. The parties hereto each expressly acknowledge and
agree that this Amendment will not become effective unless and until such time
as the Executive has received the GZ Stockholders Payment (as such term is
defined in the Stockholder Assumption Agreement dated as of the date hereof
among the Executive, Xxxxxx X. Xxxxxxxxx, Aloha Securities & Investment Co. and
Sheridan Ing Partners Hawaii). Such payment is referred to in this Amendment as
the "Stockholders Payment".
2. NOTICE OF TERMINATION. The parties hereto agree that the Date of
Termination for the Executive's employment with the Company shall be the last
day of the month in which falls the sixtieth day following the Effective Time
(as such term is defined in the Merger Agreement); and the parties hereto waive
any and all other notice requirements relating to such Date of Termination which
may be required by the Employment Agreement.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. In consideration for the
waiver of entitlements set forth in Section 4 hereof and the release and waiver
of claims set forth in Section 5 hereof, the last sentence of Section 6(f) of
the Employment Agreement is hereby deleted and the first sentence of Section
4(f) of the Employment Agreement is hereby amended to read as follows:
(f) TERMINATION FOLLOWING CHANGE IN CONTROL. If a Change in
Control shall have occurred, the Executive shall immediately
be entitled to exercise the Executive Residence Put Option and
to receive all of the benefits provided upon his Retirement,
as specified in Section 4(e) hereof, in addition to the
benefits set forth below in this Section 4(f), without regard
to the limitations on benefits set forth in subsection
4(f)(iv) below, unless such termination or notification is
because of the Executive's death or as a result of a Notice of
Termination given by the Employer for Cause or Disability, or
by the Executive for other than Retirement or "Good Reason."
4. WAIVER OF ENTITLEMENTS. The Executive hereby waives his right under
the Employment Agreement to (a) receive any Separation Payment under Section
4(f)(ii) of the Employment Agreement (provided, however, that the amounts which
would otherwise have been payable under such Section 4(f)(ii) shall continue to
be included in
"compensation" for purposes of Section 4(f)(v) of the Employment Agreement
notwithstanding the Executive's waiver of the right to receive such amounts),
(b) receive any Severance Payment under Section 4(b) of the Employment Agreement
and (c) exercise, or receive any payments in respect of, any and all stock
options granted to the Executive prior to the Date of Termination, regardless of
whether or not such options have vested (such waived rights, collectively, the
"Waived Entitlements").
5. RELEASE AND WAIVER OF CLAIMS.
(a) For purposes of this release and waiver of claims, "Employer
Parties" means the Employer and any and all of its predecessor companies,
successor companies, parent companies, subsidiaries and affiliates wherever
located and each of its present, former and future directors, officers,
employees, agents, attorneys, heirs and assigns.
(b) In consideration of the agreements set forth in this Amendment and
the value received as described in this Amendment (including, without
limitation, the Stockholders Payment), the receipt and adequacy of which are
hereby acknowledged by the Executive, the Executive hereby releases and
discharges the Employer Parties from any and all claims, actions, causes of
action, suits, costs, controversies, judgments, decrees, verdicts, damages,
liabilities, attorneys' fees, covenants, contracts, and agreements that the
Executive may have, or in the future may possess, with respect to the Employer
Parties relating to the Waived Entitlements, including, but not limited to, any
claims arising under Title VII of the Civil Rights Act of 1964, the
Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the
Civil Rights Act of 1866, the Civil Rights Act of 1991, the Employee Retirement
Income Security Act of 1974, the Family Medical Leave Act of 1993, the Hawaii
Civil Rights Act, the Hawaii Employment Practices Act, H.R.S. Chapter 378, the
Hawaii Family Leave Act, H.R.S. Chapter 398 or any other federal or state or
local law, whether such claim arises under statute, common law or in equity, and
whether or not the Executive or any of the Employer Parties are presently aware
of the existence of such claim, damage, action or cause of action, suit or
demand. Solely with respect to the Waived Entitlements, the Executive also
hereby forever releases, discharges and waives any right the Executive may have
to recover in any proceeding brought by any federal, state or local agency
against the Employer Parties to enforce any laws. The Executive agrees that the
value received as described in this Amendment (including, without limitation,
the Stockholders Payment) shall be in full satisfaction of any and all claims,
actions or causes of action for payment or other benefits of any kind that the
Executive may have against the Employer Parties with respect to the Waived
Entitlements.
(c) In further recognition of the consideration cited above, the
Executive hereby releases and forever discharges each of the Employer Parties
from any and all claims, actions and causes of action that the Executive may
have relating to the Waived Entitlements as of the date the Executive signs and
delivers to the Employer this Amendment arising under the federal Age
Discrimination in the Employment Act of 1967, as amended, and the applicable
rules and regulations promulgated thereunder ("ADEA") which may be based in
whole or in part on age discrimination.
6. NO OTHER WAIVER OR RELEASE. THE EMPLOYER EXPRESSLY ACKNOWLEDGES AND
AGREES THAT THE WAIVER BY THE EXECUTIVE OF THE WAIVED ENTITLEMENTS AND THE
RELEASE AND WAIVER OF CLAIMS RELATING TO THE WAIVED ENTITLEMENTS SHALL NOT
CONSTITUTE A WAIVER OR RELEASE OF ANY OTHER RIGHTS, BENEFITS OR ENTITLEMENTS TO
WHICH THE EXECUTIVE IS ENTITLED UNDER THE EMPLOYMENT AGREEMENT, AS AMENDED BY
THIS AMENDMENT, AND THAT THE EXECUTIVE SHALL BE ENTITLED TO BE PAID ALL SUCH
OTHER AMOUNTS AND RECEIVE ALL SUCH OTHER BENEFITS AS ARE PROVIDED FOR IN THE
EMPLOYMENT AGREEMENT, AS AMENDED BY THIS AMENDMENT.
7. NON-COMPETITION AND TRADE SECRETS. Section 5(a) of the Employment
Agreement is hereby deleted in its entirety and replaced with the following:
(a) NO COMPETING EMPLOYMENT. During the Term and for a period of
three years after the Date of Termination (the "Restricted
Period") the Executive shall not, without the prior written
consent of the Employer, directly or indirectly, own an
interest in, manage, operate, join, control, lend money or
render financial or other assistance to or participate in or
be connected with, as an officer, employee, partner,
stockholder, creditor, investor, consultant or otherwise, any
individual partnership, firm, corporation or other business
organization or entity (collectively, an "Entity") that, at
such time: (a) is headquartered in
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Hawaii and is primarily engaged in the business of passenger
or freight airline services or aircraft ground maintenance
operations; (b) is an airline that has Hawaii inter-island
passenger or freight services that constitute a material share
of its overall airline business measured by passenger revenue
miles or freight pound miles; or (c) has 5% or more of the
Hawaii inter-island passenger or freight air traffic measured
by passenger revenue miles or freight pound miles AND the
Executive is serving directly as an officer, --- employee,
partner or consultant of such Entity's Hawaii operations, or
otherwise has significant duties or responsibilities involving
such Entity's Hawaii operations. For the avoidance of doubt, a
senior management position at a parent Entity for which the
Hawaii operations are not a material part of the Entity on a
consolidated basis will not be limited by the foregoing
provisions.
8. ACKNOWLEDGMENT. By signing this Amendment, the Executive hereby
acknowledges and confirms that in connection with this Amendment the Executive,
as advised by the Employer, consulted with an attorney of the Executive's choice
prior to signing this Amendment and had such attorney explain to the Executive
the terms of this Amendment including, without limitation, the terms relating to
the Executive's release of claims arising under ADEA.
9. ACCEPTANCE. Subject to Section 1 hereof, the Executive may indicate
the Executive's acceptance of this Amendment by signing and dating both copies
of this Amendment and delivering one such copy to the Employer.
10. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meaning assigned to such terms in the Employment Agreement.
11. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under the laws of the State of Hawaii, and for all purposes governed by and
construed in accordance with the laws of such State applicable to contracts made
and performed entirely within such State.
12. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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The Executive's signature on the line below constitutes the Executive's
agreement with each provision contained herein.
ALOHA AIRGROUP, INC.
/s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Corporate Secretary
ACKNOWLEDGED AND AGREED:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Date: December 19, 2001
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