AMENDMENT NUMBER ONE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.2.5
AMENDMENT NUMBER ONE TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment Number One to Amended and Restated Employment Agreement (this “Amendment”) between Gogo Business Aviation LLC (the “Company”) and Xxxxx Xxxxxxx (“Executive”) is dated as of March 25, 2022.
WHEREAS, the Company and Executive have heretofore entered into an Amended and Restated Employment Agreement dated as of February 10, 2020 (the “Agreement”);
WHEREAS, in connection with the consummation of Gogo Inc.’s sale of Gogo LLC (f/k/a Aircell LLC) to Intelsat Xxxxxxx Holdings S.A. on December 1, 2020, the Company assumed the Agreement;
WHEREAS, the Company and Executive desire to amend the Agreement to add a Transition Term (as defined hereinafter), among other things; and
WHEREAS, the Agreement as modified by this Amendment supersedes and replaces all other agreements, whether oral or written, related to the terms of Executive’s employment with the Company with respect to the subject matter hereof, with the exception of that certain Change in Control Severance Agreement, as amended to date (the “Change in Control Agreement”), between Executive and Gogo Inc. (“Parent”), which shall remain in effect as modified by this Amendment.
NOW, THEREFORE, pursuant to Section 17 of the Agreement, the Agreement is hereby amended as follows, effective as of March 25, 2022:
Notwithstanding the foregoing, during the Transition Term (as defined below), Executive’s duties shall be modified such that Executive shall perform such duties as may be requested from time to time by the Company’s Chief Executive Officer or Parent’s Board of Directors, including (i) related to Executive’s role as Executive Vice President, Chief People Experience Officer and (ii) assisting the Company in identifying a successor for Executive’s role at the Company and in the Company’s hiring of such successor. In addition, the Company anticipates that during the Transition Term, Executive’s principal place of employment shall remain Chicago, Illinois, although Executive shall be required to undertake business travel to Broomfield, Colorado on a regular basis. Executive cannot relocate without the prior written approval of the Company’s Chief Executive Officer, provided, that if the Transition Term is extended by mutual agreement pursuant to Section 8(g), the Company and Executive shall discuss Executive’s ongoing principal place of employment at the time of such extension.
The Base Salary shall be reviewed at least annually for increases but not decreases.
(f) Resignation for Good Reason. Executive may terminate her employment under this Agreement immediately upon a showing of “Good Reason,” which for purposes of this Agreement shall mean (i) a reduction by the Company in Executive’s Base Salary; (ii) Executive ceasing to be a direct report to the Chief Executive Officer of the Company; (iii) the relocation of Executive’s principal place of employment to a geographic location more than fifty (50) miles from the Company’s office in Chicago, Illinois, provided, that Executive acknowledges that business travel to Broomfield, Colorado shall be required on a regular basis and, upon reasonable notice from the Company or Parent, a relocation to Broomfield, Colorado shall not be a basis for having Good Reason under this Agreement; or (iv) any material breach by the Company of its obligations to Executive hereunder. In the event that Executive believes that circumstances constituting “Good Reason” have occurred and Executive wishes to terminate her employment as a result of such occurrence, Executive must provide the Company written notice within thirty (30) days from the initial existence of the occurrence. If within thirty (30) days following the Company’s receipt of such notice it corrects the circumstances constituting “Good Reason,” then Executive shall not be entitled to terminate her employment under this Section 8(f) as a result of such circumstances. Furthermore, Executive shall not be entitled to terminate her employment under this Section 8(f) as a result of any circumstances constituting “Good Reason” unless her resignation occurs within thirty (30) days following the expiration of the Company’s cure period;
(g) Transition Term. The Company and Executive agree that, unless otherwise mutually agreed no later than three (3) months prior to the end of the Transition Term (as defined below) (provided that the Company shall inform Executive if it does not intend to seek an extension), as of January 1, 2024, Executive’s employment with the Company shall automatically end; provided, that Executive has remained continuously employed with the Company from the date hereof through such date (the “Transition Term”).
(a) Termination by the Company Without Cause, Resignation for Good Reason or the End of Transition Term. If Executive is terminated under Section 8(a), resigns for Good Reason under Section 8(f) or if Executive’s employment terminates as a result of the end of the Transition Term under Section 8(g), and following the execution (and expiration of any revocation period), not later than forty-five (45) days following the termination date, of a separation agreement containing a general release of all claims against Parent, the Company and its Affiliates (the “Release”), the Company shall pay Executive an amount equal to twelve (12) months of Executive’s then-current Base Salary, payable in installments as set forth hereinafter (each such payment a “Severance Payment”). The Severance Payment shall be payable in installments, by direct deposit, in accordance with the Company’s normal payroll practices. The first installment of the Severance Payment shall be made on the first payroll date after the execution (and expiration of any revocation period) of such separation agreement or, if the forty-five (45)-day period following the termination date spans two calendar years and the Severance Payment is subject to Section 409A of the Internal Revenue Code, after such forty-five (45)-day period, and shall include all installments of the Severance Payment that would have been paid if the Release had been fully effective on the termination date. In addition, during the twelve (12) months
following termination, should Executive timely elect to continue coverage pursuant to COBRA, the Company agrees to reimburse Executive for the COBRA premiums due to maintain health insurance coverage that is substantially equivalent to that which she received immediately prior to Executive’s termination. The Company shall also (i) pay Executive (A) any salary earned but unpaid prior to termination and all accrued but unused PTO, (B) any business expenses incurred but not reimbursed as of the date of termination ((A) and (B) together, the “Accrued Benefits”) and (C) any award under the annual bonus program referred to in Section 3(a) that has been approved by the Company’s Chief Executive Officer and Parent’s Board of Directors but not paid prior to termination and (ii) solely to the extent Executive’s employment terminates (A) during the Transition Term as a result of Executive’s termination by the Company without Cause under Section 8(a) or Executive’s resignation for Good Reason under Section 8(f) or (B) as a result of the end of the Transition Term under Section 8(g), (x) ensure Executive is eligible to receive an award under the annual bonus program referred to in Section 3(a), pro-rated based on the number of days that Executive was employed during the calendar year in which Executive terminates from the Company and paid based on actual performance as determined by the Compensation Committee, to be paid at the same time as other executives (which means, for the avoidance of doubt, that if Executive remains employed through the Transition Term, Executive shall be eligible to receive a bonus for 2023 in accordance with the annual bonus plan then in place, to be paid at the same time as other executives), (y) cause all outstanding unvested options to purchase common stock in Parent and restricted stock and restricted stock units granted under Parent’s equity plans at least six (6) months prior to the date of Executive’s termination of employment to fully vest upon Executive’s termination of employment (provided that if the approval of any such grant is contingent upon shareholder approval that was subsequently obtained, the six (6) month period shall be measured from the date that the grant was originally approved) and (z) cause all vested stock options to purchase common stock in Parent (after giving effect to (y)) to remain exercisable through the earlier of (A) the original option term or (B) December 1, 2025; provided, however, that the exercise period of such options shall in no event be shorter than the post-termination exercise period provided for in the applicable equity award agreement. All benefits provided under this Section 9(a), except for the Accrued Benefits, shall be subject to Executive’s execution and non-revocation of the Release.
(e) Other Benefits. In the event that Executive becomes entitled to either the benefits set forth in this Agreement or those set forth in the Change in Control Agreement, Executive shall be entitled to the “better of” the two arrangements, which, for the avoidance of doubt, shall ensure that Executive shall receive (i) except as otherwise provided herein, the severance benefits set forth in the Change in Control Agreement upon resignation at the end of the Transition Term if the end of the Transition Term occurs during the covered period of the Change in Control Agreement and (ii) treatment of awards under Parent’s equity plans upon a termination following a Change in Control that shall be no worse than the treatment of such awards that is set forth in this Agreement.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer and Executive has executed this instrument as of this 25th day of March, 2022.
Gogo Business Aviation LLC
By: /s/ Oakleigh Xxxxxx
Name: Oakleigh Xxxxxx
Title: Chief Executive Officer
Executive:
/s/ Xxxxx Xxxxxxx
