Contract
Exhibit
10.2
FIRST
AMENDMENT
dated as
of this 31st
day of
October, 2006 (this “Amendment”) by and between FBO Air, Inc., a Nevada
corporation (the “Company”), and Xxxxxxx X. Xxxxx (the “Executive”) to the
Employment Agreement dated as of April 1, 2005 (the “Employment Agreement”) by
and between the Company and the Executive.
RECITAL
WHEREAS,
the
Company and the Executive have heretofore executed and delivered the Employment
Agreement and the parties hereto now each desire to terminate the Employment
Agreement upon the terms and conditions set forth in this
Amendment;
NOW,
THEREFORE,
in
consideration of the agreements and commitments set forth in this Amendment,
the
parties hereto agree as follows:
1. All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Employment Agreement.
2. The
Employment Agreement is hereby terminated effective as of October 31, 2006
(the
“Effective Date”) except as provided herein.
3. The
Executive resigns as a director and the Executive Vice President for Business
Development of the Company effective as of the Effective Date.
4. The
Company shall, not later than ten Business Days after the date of this
Amendment, pay to the Executive any Base Salary (including for any accrued
vacation time) accrued and unpaid through the Effective Date and, upon
presentation of appropriate documentation in accordance with the policies of
the
Company applicable to its executive officers, the Executive’s business-related
expenses incurred through the Effective Date. The term “Business Day” shall mean
any day other than Saturday, Sunday or any day on which commercial banks are
closed in the City and State of New York.
5. The
Company shall, not later than ten Business Days after the date of this
Amendment, pay to the Executive $81,000, subject, as applicable, to normal
withholding taxes and deductions. Upon payment of the amounts specified in
Sections 4 and 5 of this Amendment, the Executive agrees that he has no further
claims for monetary compensation from the Company (or any subsidiary thereof),
whether for Base Salary, incentive bonus, vacation pay, severance pay or any
other type of monetary compensation or reimbursement for expenses pursuant
to
the Employment Agreement or otherwise.
6. The
Executive shall not sell or otherwise transfer any shares of the Common Stock,
whether now owned or subsequently acquired through the exercise of a stock
option, during the period commencing on the Effective Date and expiring on
October 30, 2007; provided, however, that the prohibition in this Section 6
shall (a) cease, terminate and have no effect upon (i) a change in his marital
status with Xxxx Xxxxx or (ii) the sale by any director or executive officer
of
the Company of shares of the Common Stock and (b) not be applicable to any
transfer pursuant to a legal commitment made by the Executive prior to the
Effective Date.
7. The
Executive shall comply with subsection 7(c) of the Employment Agreement relating
to return of memoranda, notes, etc.; provided, however, that the Executive
may
keep the Company’s laptop computer which he has been using and may continue to
use the Company’s office space in Scottsdale, Arizona until December 15,
2006.
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8. The
Executive shall continue to comply with subsections (a), (b) and (f) of Section
7 of the Employment Agreement relating to no solicitation, confidentiality
and
cooperation, respectively, during the respective period specified in each such
subsection and the Company shall compensate the Executive for his cooperation
on
a reasonable basis as provided in subsection (f). The Company hereby waives
any
requirement that the Executive continue to comply with subsection 7(d) of the
Employment Agreement relating to no competition by the Executive during the
Non-Competition Period and he may engage in any business, or own an equity
interest in any entity, even if it would have been in violation of subsection
7(c) prior to this Amendment. Subsections (g) and (h) of Section 7 of the
Employment Agreement shall continue in effect insofar as they relate to
subsections (a) and (b) of Section 7 so long as such subsections (a) and (b)
are
applicable.
9. Section
8
of the Employment Agreement relating to indemnification of the Executive shall
remain in effect until the expiration of any applicable statute of
limitations.
10. Any
notice to be delivered pursuant to this Amendment shall be delivered in
accordance with subsection 9(d) of the Employment Agreement.
11. Subsections
(b) and (h) of Section 9 of the Employment Agreement relating to severability
of
provisions and disputes, respectively, shall be applicable to this
Amendment.
12. This
Amendment, as was the Employment Agreement, shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect
to
any principles of conflicts of laws.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first
mentioned.
By:/s/
Xxxxxx X. Xxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
President and Chief Executive Officer
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/s/
Xxxxxxx X.
Xxxxx
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Xxxxxxx
X. Xxxxx
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Each
of
the undersigned, being the wife of the Executive and her daughter, hereby agrees
to comply with Section 6 of the foregoing Amendment with respect to her
shares of the Common Stock as if she was the Executive so long as Section 6
shall be applicable to the Executive.
/s/
Xxxx
Xxxxx
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Xxxx Xxxxx
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/s/
Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx
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