AGREEMENT
THIS
AGREEMENT
(the
“Agreement”) is made as of the 12th
day of
August, 2008, among HALCYON
JETS HOLDINGS, INC.,
a
Delaware corporation (“Holdings”), HALCYON
JETS, INC.,
a
Nevada corporation (the “Company”), both having an address at 000 Xxxx
00xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and XXXXXXXX
XXXXX (the
“Employee”) having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000.
W
I T N E S S E T H:
WHEREAS,
the Employee has been employed by Holdings and the Company as Chairman of the
Board and Chief Executive Officer pursuant to an Employment Agreement (the
“Employment Agreement”) dated May 29, 2008, and has been an member of the Board
of Directors of Holdings and the Company; and
WHEREAS,
the Employee has agreed to resign his employment by Holdings and the Company
on
the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in exchange for good and valuable consideration, including the mutual
promises herein set forth, the sufficiency of which is hereby acknowledged,
and
intending to be legally bound hereby, the parties hereby agree as
follows:
1. Resignation.
The
Employee hereby resigns as Chairman, Chief Executive Officer, director and
as an
employee of Holdings and the Company effective on the date of this
Agreement.
2. Severance.
The
severance period shall be deemed to extend for a period beginning on the date
of
this Agreement through and including July 31, 2009 (the “Severance Period”). The
Employee shall receive from the Company as severance pay a continuation of
his
base salary in the annual amount of $300,000 less any lawful tax withholdings,
payable in accordance with the Company’s customary payroll practices during the
Severance Period. The amounts payable under this Section 2 shall be payable
nothwithstanding the death or disability of the Employee during the Severance
Period.
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3. Warrants.
Pursuant to Section 3(f) of the Employment Agreement, Holdings granted to the
Employee warrants to purchase 1,000,000 shares of Holdings’ common stock at an
exercise price of $.38 per share. The Employee shall be entitled to retain
warrants to purchase 500,000 shares of Holdings’ common stock, all of which are
hereby deemed fully vested as of the date of this Agreement, and the Employee
agrees that warrants to purchase the balance of 500,000 shares of Holdings’
common stock are hereby cancelled. The warrants to purchase 500,000 shares
(a)
shall be set forth in a separate warrant certificate, (b) shall have an exercise
price of $.38 per shares (subject to adjustment as set forth in the Employment
Agreement), (c) shall have an expiration date of July 31, 2013, (d) shall be
exercisable on a cashless basis if not registered under the Securities Act
of
1933, as amended (the “Act”), within six (6) months of the date of this
Agreement, and (e) shall be registered under the Act at the same time as any
options or warrants granted to the members of Holdings’ Board of Directors,
executive officers or consultants.
4. Benefit
Limitations.
The
Employee shall not be deemed to be or considered as an employee of either
Holdings or the Company after the date of this Agreement. Accordingly, the
benefits of employment, including, but not limited to, any health insurance,
pension, vacation days, sick days, 401K, shall not accrue thereafter, except
for
the Employee’s COBRA rights.
5. Employment
Inquiries.
Holdings and the Company whenever possible shall refer all inquiries from
potential future employers regarding the Employee to the Company’s Chief
Financial Officer. The Company shall not respond to any inquiries that are
not
in proper written form, unless specifically requested by the Employee in
writing, and shall only confirm the Employee’s dates of employment and positions
with the Company and Holdings and that the Employee resigned from such
positions.
6. Employment
Agreement.
Sections 8 (Indemnification), 9 (Confidential Information), 10
(Non-Competition), 11 (Non-Solicitation), and 12(a) and (b) (Non-Disparagement;
Release; Other Agreements) of the Employment Agreement shall continue in full
force and effect notwithstanding the Employee’s resignation. All other terms and
conditions of the Employment Agreement are hereby terminated, effective
immediately.
7. Release
by Employee.
For
valuable consideration from Holdings and the Company, receipt of which is hereby
acknowledged by the Employee, the Employee releases and forever discharges
Holdings and its subsidiaries and affiliates, and their respective
securityholders, affiliates, officers, directors, partners, agents, employees,
and attorneys, and all trustees and administrators under any plans, successors
and assigns of Holdings or any of its subsidiaries (collectively, the
“Affiliates”), and covenants to forever cease and refrain from instituting,
maintaining, pressing, collecting or in any way aiding and proceeding against,
and releases and forever discharges each of the Affiliates from any and all
claims, suits or actions, whether known or unknown, which Employee had, now
has
or may have against any Affiliate, from the beginning of time, including but
not
limited to, any such claims, suits or actions relating to employment with
Holdings and the Company or the termination thereof, including any attorney
fees
incurred thereby, or under any equal employment opportunity law, ordinance,
regulation or order, including, but not limited to, Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000 et seq.,
the
Civil Rights Act of 1866, as amended, 42 U.S.C. §1981 et seq.,
Executive Order 11246, as amended, the Age Discrimination in Employment Act
of
1967, as amended, 29 U.S.C. §621 et seq.,
the
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.,
the
Older Workers Benefit Protection Act, 29 U.S.C. § 626, the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §1144, the Federal Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq.,
and
any other applicable federal, state or local, constitutional or statutory
provision, order or regulation, arising from any event or act of omission or
commission. This release includes, but is not limited to, any and all claims,
suits or actions of any kind, occurring during the term of employment with
the
Company through the date of this Agreement, including any alleged injuries
or
damages suffered at any time after the date of this Agreement by reason of
the
continued effects of any such alleged acts which occurred on or before the
date
hereof. In consideration of the payments provided herein, the Employee gives
up
any rights he may have under these or any other laws with respect to his
employment and termination and acknowledges that neither Holdings nor the
Company has (i) discriminated against him; (ii) breached any express or implied
contract with him; or (iii) otherwise acted unlawfully toward him. This release
shall not apply to matters to be performed under this Agreement subsequent
to
the date hereof, including without limitation his right to payments under any
of
this Agreement. This release shall not apply with respect to the rights of
the
Employee, if any, for indemnification in accordance with Holdings’ and the
Company’s Certificates of Incorporation and/or By-Laws for third-party claims
arising from the Employee’s acts or omissions, as an officer and/or director of
Holdings or the Company.
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8. Release
by Holdings and the Company.
In
consideration of the Employee’s agreement to the terms hereof, Holdings and the
Company hereby release and forever discharge the Employee from any and all
claims, suits or actions, of any kind, whether express or implied, known or
unknown, which they have or may have against the Employee, arising out of his
employment or the cessation thereof, or from any act occurring during the term
of employment through the date hereof. This release does not apply to matters
to
be performed by the Employee under this Agreement subsequent to the date
hereof.
9. Return
of Property.
Simultaneous with the execution of this Agreement, the Employee shall turn
over
to the Company any and all keys, credit cards, security passes, personal
computers, computer disks, records or property of either Holdings or the
Company, or copies thereof, in the Employee’s possession or custody.
10. Cooperation.
The
Employee agrees to cooperate at any and all times with Holdings and the Company
in any litigation in which he or them is named as a party or whose subject
matter relates to any action he took while an employee, officer, director or
trustee thereof. This cooperation includes, but is not limited to, making
himself available at a mutually convenient time for assistance to any of them
in
defending its position or for witness preparation for a deposition or any court
proceeding. Except as set forth in the following sentence, the Company shall
compensate the Employee at a rate consistent with his current salary, for all
such cooperation, other than brief telephone conversations, and the Company
shall reimburse the Employee for travel or other Company pre-approved
out-of-pocket expenses incurred by the Employee in such cooperation. Holdings
agrees to indemnify and defend the Employee from and against any and all claims,
damages and liability whatsoever arising out of this Agreement or otherwise,
including without limitation attorneys fees and expenses and related costs
of
defense, that result from any claims by employees, customers, suppliers,
government agencies and others relating to Holdings or the Company arising
out
of the Employee’s employment or its cessation or from the Employee’s actions on
behalf of Holdings or the Company during the term of employment, except that
no
indemnification will be provided for any proceeding by any such third party
unless the Employee acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of Holdings and the Company and,
with respect to any criminal proceeding, the Employee had no reasonable cause
to
believe his conduct was unlawful. The Employee, Holdings and the Company each
agree to execute any and all documents and instruments in furtherance of this
Agreement.
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11. Right
of Revocation.
The
Employee understands that, pursuant to the Older Workers Benefit Protection
Act
of 1990, he is entitled to consult with an attorney and to have twenty-one
(21)
days within which to consider this Agreement fully. The Employee shall have
seven (7) days following his signing of this Agreement to revoke this Agreement,
which revocation shall be done in writing and delivered to the Chief Financial
Officer of Holdings. This Agreement shall not become effective or enforceable
until the revocation period has expired.
12. Counsel.
The
Employee acknowledges that he has been advised to consult with an attorney
prior
to executing this Agreement and has had an opportunity to consult with an
attorney, and has freely chosen not to do so. Greenbaum, Rowe, Xxxxx & Xxxxx
LLP has represented only the interests of the Company in connection with this
Agreement, and not the interests of the Employee.
13
Prevailing
Party.
In the
event that either party to this Agreement prevails in any litigation to enforce
his or its rights under this Agreement, such prevailing party shall be entitled
to the reimbursement by the non-prevailing party of his or its reasonable legal
fees and other costs of litigation.
14. Severability.
Should
any provisions of this Agreement be held to be illegal, void or unenforceable,
such provision shall be of no force and effect. However, the illegality or
unenforceability of any such provision shall have no effect upon, and shall
not
impair the enforceability of, any other provision of this Agreement.
15. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, excluding its conflicts of laws provisions.
16. Integration.
This
Agreement contains the complete understanding among Holdings, the Company and
the Employee, and no other promises or agreements shall be binding unless signed
by both. In signing this Agreement, the parties are not relying on any fact,
statement or assumption not set forth in this Agreement.
17. Amendments.
This
Agreement may only be changed or amended by a written agreement signed by all
of
the parties hereto.
18. Knowledge
and Consent.
By
signing below, Holdings, the Company and the Employee indicate that they have
carefully read and understood the terms of this Agreement, enter into the
Agreement knowingly, voluntarily and of their own free will, understand its
terms and significance and intend to abide by its provisions without
exception.
19. Binding
Effect.
This
Agreement is binding upon, inures to the benefit of and is enforceable by the
heirs, personal representatives, successors and assigns of the parties. This
Agreement is not assignable by a party without the prior written consent of
the
other party.
-8-
IN
WITNESS WHEREOF, this Agreement has been signed as of the date first set forth
above.
| The Employee: | ||
| /s/MitchellBlatt | ||
|
Xxxxxxxx
Xxxxx
|
||
| The Company: | ||
| HALCYON JETS, INC. | ||
| By: /s/ Xxx X. Xxxxxx | ||
|
Xxx
X. Xxxxxx, Chief Financial Officer
|
||
|
Holdings:
|
||
| HALCYON JETS HOLDINGS, INC. | ||
| By: /s/ Xxx X. Xxxxxx | ||
|
Xxx
X. Xxxxxx, Chief Financial Officer
|
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