EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”)
is
made as of May 29, 2008, between XXXXXXXX XXXXX, a resident of New York (the
“Executive”),
and
HALCYON
JETS HOLDINGS, INC., a
Delaware corporation (the “Company”).
RECITALS
WHEREAS,
the Company desires to employ the Executive, and the Executive desires to enter
into such employment with the Company, upon the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, the parties hereto, each intending to be legally bound hereby, agree
as
follows:
1. Employment;
Duties; Location.
(a) Employment;
Duties.
On the
terms and subject to the conditions set forth herein, the Company hereby agrees
to employ the Executive as Chief Executive Officer and Chairman of the Company’s
board of directors (the “Board”), and the Executive hereby agrees to accept such
employment, for the Employment Term (as defined in Section 4). The Executive
shall have such authorities, duties and responsibilities as are usual and
customary for a Chief Executive Officer of a public company and all other duties
and responsibilities as may from time to time be directed by the Board and
as
are consistent with the positions of Chief Executive Officer and Chairman of
the
Board. The Executive shall report exclusively and directly to the Board. The
Executive shall also serve in the same positions for all of the Company’s
subsidiaries with no additional compensation to be paid to the Executive for
his
services in such positions.
(b) Location.
The
locations at which the Executive will perform his duties under this Agreement
shall be the Company’s executive offices (which are located in Xxx Xxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx and Beverly Hills, California), subject to reasonable travel
required to perform his duties under this Agreement.
2. Performance.
During
the Employment Term, the Executive agrees to devote his full business time
and
attention to the business and affairs of the Company and the discharge of his
responsibilities hereunder (excluding periods of vacation and sick leave);
provided
that the
Executive may (a) engage in or serve such professional, civic, trade
association, charitable, community, educational, religious or similar types
of
organizations, or speaking engagements, or serve on the boards of directors
or
advisory committees of any charitable or not-for-profit entities; (b) with
the
prior written consent of the Company, such consent not to be unreasonably
withheld, serve on the boards of directors or advisory committees of any
for-profit business entities; and (c) attend to the Executive’s personal matters
and/or the Executive’s and/or his family’s personal finances, investments and
business affairs. The Executive shall be permitted to retain all compensation
in
respect of any of the services or activities referred to above.
3. Compensation
and Benefits.
(a) Base
Salary.
The
Company shall pay the Executive a base salary at an annual rate of Three Hundred
Thousand Dollars ($300,000) (the “Base
Salary”).
The
Base Salary shall be paid in accordance with the normal payroll practices for
executives of the Company as in effect from time to time, but in no event less
often than monthly.
(b) Bonus.
The
Executive shall be eligible for a discretionary bonus as determined by the
Compensation Committee of the Board.
(c) Business
Expenses.
The
Company shall promptly reimburse the Executive for all travel, entertainment
and
other business expenses incurred by the Executive in the performance of his
duties to the Company; provided,
that
such expenses are incurred and accounted for in accordance with the policies
and
procedures established by the Company applicable to senior executives generally.
The Company will also reimburse the Executive for automobile expenses such
as
fuel, parking and tolls and for cell phone and PDA expenses.
(d) Vacation.
The
Executive shall be entitled to six (6) weeks paid vacation per year in
accordance with the Company’s policies and procedures applicable to senior
executives generally and with the timing to be consistent with the needs of
the
business of the Company.
(e) Employee
Benefits and Fringe Benefits.
The
Executive shall be entitled to receive employee benefits (with dependent
coverage), including life insurance, health, medical, hospitalization, dental
and prescription drug benefits, and travel accident insurance, and fringe
benefits and perquisites in accordance with the plans, practices, programs
and
policies of the Company in effect for its senior executives from time to time.
The Company will reimburse the Executive for all “COBRA” healthcare continuation
coverage expenses actually incurred by the Executive (including with respect
to
coverage for his dependents) from the Commencement Date until the Executive
and
his dependents are eligible to participate in the Company’s medical, dental and
vision insurance plans, within ten (10) days after incurring such expenses.
In
the event that the Executive elects not to participate in the Company’s health,
medical, hospitalization, dental and prescription drug insurance plan or program
(to the extent the Company makes such benefits available to its senior
management personnel), other than due to an election for reimbursement of COBRA
continuation coverage pursuant to the immediately preceding sentence, then
the
Company will pay to the Executive an amount equal to the amount of expense
it
would have incurred had the Executive elected to participate in such plan or
program.
(f) Stock
Option, Savings and Retirement Plans.
Additionally, the Executive shall be entitled to participate, to the extent
determined by the Compensation Committee of the Board, in all stock incentive
plans and all qualified and nonqualified pension, savings and retirement plans,
practices, policies and programs (if any) generally applicable to other senior
executives of the Company on terms and conditions generally applicable to such
executives from time to time. The Executive shall be granted assignable warrants
to purchase one million (1,000,000) shares of the common stock of the Company,
which warrants (the “Warrants”) shall have an exercise price of $.38 per share.
The Warrants shall vest in two (2) equal portions; 50% of the Warrants shall
vest on the Commencement Date (as defined below), and 50% of the Warrants shall
vest on the first anniversary of the Commencement Date provided that the
Executive is then employed by the Company. Upon changes in the Company’s
outstanding common stock by reason of a stock dividend, stock split, reverse
stock split, subdivision, recapitalization, merger, consolidation, combination
or exchange of shares, separation or reorganization, the number, class and
kind
of shares and exercise price subject to the Warrants shall be correspondingly
adjusted. In the event of termination of employment by the Executive for Good
Reason (as defined in Section 5(b)), by the Company without Cause (as defined
below) or in the event of a Change of Control (as defined below), all stock
option, restricted stock and other stock-based awards held by the Executive
or
any permitted transferee thereof shall automatically and immediately become
fully vested, all restrictions applicable to restricted stock and other
stock-based awards shall immediately lapse, and all stock options and other
awards shall be fully exercisable and remain exercisable for their full term.
In
the event that the shares issuable upon exercise of the Warrants have not been
registered under the Securities Act of 1933, as amended, within six (6) months
following the Commencement Date, the Warrants shall include a provision that
allow them to then become exercisable on a “cashless” basis.
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(g) Change
of Control.
Upon a
Change of Control (as defined below), the Executive will be entitled to an
additional bonus payment in an amount equal to two (2) times the Executive’s
Base Salary then in effect, payable within thirty (30) days after such Change
of
Control. As used in the preceding sentence, a “Change of Control” means (i) any
“person” (including any group of persons), as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)
(other
than any trustee or other fiduciary holding securities under an employee benefit
plan of the Company), is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, after the date hereof,
of
securities of the Company representing more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding securities; (ii)
individuals who at the Commencement Date constitute the Board, and any new
director (other than a director (x) designated by a person who has entered
into
an agreement with the Company to effect a transaction described in clause (i),
(iii) or (iv) of this subparagraph, or (y) whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect
to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a “person” (as hereinabove defined)
other than the Board) whose election by the Board or nomination for election
by
the Company’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof; (iii) a merger,
reorganization or consolidation of the Company, other than a merger,
reorganization or consolidation which results in (A) the beneficial owners
(as
hereinabove defined) of the voting securities of the Company outstanding
immediately prior thereto continuing to beneficially own voting securities
that
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger, reorganization or consolidation, and (B) no
“person” (as hereinabove defined) acquiring more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding securities; (iv) a sale
or disposition by the Company of all or substantially all of the Company’s
assets or business to an unaffiliated third party; or (v) a liquidation or
dissolution of the Company; provided that the events referred to in clauses
(i),
(iii), (iv) and (v) shall constitute a Change of Contol if the Common Stock
of
the Company is valued at less than Five Dollars ($5.00) per share, subject
to
adjustment in the event of any stock dividend, stock split or re-capitalization
of the Company.
-3-
(h) Comparable
Treatment.
The
Executive and, as applicable, his family shall be entitled to material terms
of
his employment, including without limitation compensation, employee benefits,
life insurance, health, medical, hospitalization, dental and prescription drug
benefits, and travel accident insurance, and fringe benefits and perquisites
in
accordance with the most favorable terms, benefits, plans, practices, programs
and policies of the Company (on the most favorable terms and conditions) in
effect for its senior executives from time to time, which, in any event, shall
not be less favorable than those in effect on the Commencement
Date.
4. Employment
Term.
The
term of employment of the Executive hereunder (the “Employment
Term”)
shall
begin on or about May __, 2008 (the “Commencement
Date”),
and
shall continue for two (2) years unless terminated sooner in accordance with
Section 5, 6 or 7.
5. Termination
Without Cause or for Good Reason.
(a) Salary.
If the
Company terminates the Executive’s employment without Cause (as defined herein),
or the Executive terminates his employment with the Company for Good Reason
(as
defined herein), subject to the provisions of this Agreement, the Executive
shall be entitled to receive from the Company his Base Salary for the remainder
of the Employment Term, subject to Section 12 (b) of this Agreement and all
other payments, benefits and rights under any benefit, compensation, incentive,
equity or fringe benefit plan, program or arrangement or grant, to the extent
consistent with any applicable plan (such payments, rights and benefits referred
to in this sentence are collectively referred to hereinafter as “Rights”).
The
Base Salary in such event shall be payable over the course of the twelve (12)
months following termination of employment in accordance with the Company’s
then-current payroll practices. The Executive shall also receive payment of
unpaid Base Salary through the date of such termination; accrued but unused
vacation days; any unpaid bonus earned through the date of termination; any
compensation previously deferred by the Executive, including any deferred
compensation (plus any accrued interest and earnings thereon), to the extent
consistent with any applicable plan; reimbursement for any unreimbursed fees
or
expenses under Sections 3(c) incurred through the date of termination, payable
no later than seven (7) days following such termination or as soon as
practicable under the terms and conditions of the applicable plan, program
or
arrangement that are applicable to other senior executive participants.
(b) Definition
of Good Reason.
For
purposes of this Agreement, “Good
Reason”
shall
mean the occurrence of any of the following events, without the written consent
of the Executive:
(i) the
Company changes the titles and/or positions of the Executive such that the
Executive is no longer the Chief Executive Officer and Chairman of the Board
or
no longer reports directly to the Board;
(ii) a
reduction in the Base Salary in accordance with Section 3(a), or the failure
to
pay when due Base Salary or any other amounts due under this Agreement.
Notwithstanding the foregoing, prior to the Executive having the right to
terminate this Agreement under this clause (ii), the Executive shall first
provide the Company with written notice specifying such reduction, failure
to
increase or failure to pay in reasonable detail and if such reduction, failure
to increase or failure to pay is susceptible to remedy, the Company shall then
have a ten (10) business day period to remedy such reduction, failure to
increase or failure to pay alleged by the Executive to be prohibited by this
clause (ii) and if such reduction, failure to increase or failure to pay is
remedied within such period, the Executive shall have no right to terminate
this
Agreement based on such reduction, failure to increase or failure to pay, as
the
case may be;
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(iii) a
material reduction in the kind or level of employee benefits, fringe benefits
or
perquisites to which the Executive is from time to time entitled either by
the
express terms of this Agreement or as may be provided to other senior executives
of the Company, or a failure to pay or provide such benefits, fringe benefits
or
perquisites when due. Notwithstanding the foregoing, prior to the Executive
having the right to terminate this Agreement under this clause (iii), the
Executive shall first provide the Company with written notice specifying such
material reduction or failure in reasonable detail and if such material
reduction or failure is susceptible to remedy, the Company shall then have
a 30
day period to remedy such material reduction or failure alleged by the Executive
to be prohibited by this clause (iii), and if such material reduction or failure
is remedied within such period, the Executive shall have no right to terminate
this Agreement based on such material reduction or failure, as the case may
be;
(iv) a
material diminution or material adverse change in the Executive’s titles,
authorities, duties, responsibilities or reporting relationships, or assignment
to the Executive of duties and authorities that are not commensurate with his
position. Notwithstanding the foregoing, prior to the Executive having the
right
to terminate this Agreement under this clause (iv), the Executive shall first
provide the Company with written notice specifying such material diminution,
material adverse change or other action in reasonable detail and if such
material diminution, material adverse change or other action is susceptible
to
remedy, the Company shall then have a 30 day period to remedy such material
diminution, material adverse change or other action alleged by the Executive
to
be prohibited by this clause (iv), and if such material diminution, material
adverse change or other action is remedied within such period, the Executive
shall have no right to terminate this Agreement based on such material
diminution, material adverse change or other action, as the case may
be;
(v) a
failure
by the Company to procure, and deliver to the Executive satisfactory evidence
of, the assumption of this Agreement by any successor or subsidiary as required
by Section 15. Notwithstanding the foregoing, if the Executive has actual
knowledge of circumstances that are anticipated to, or do or would, give rise
to
the Company’s obligations under Section 15, then prior to the Executive having
the right to terminate this Agreement under this clause (v), the Executive
shall
first provide the Company with written notice specifying such failure in
reasonable detail and if such failure is susceptible to remedy, the Company
shall then have a 5 day period to remedy such failure alleged by the Executive,
and if such failure is remedied within such period, the Executive shall have
no
right to terminate this Agreement based on such failure;
(vi) any
purported termination of the Executive’s employment that is not effected
pursuant to a Notice of Termination, within the meaning of Section 7(a), and
otherwise in accordance with this Agreement, which, for purposes of this
Agreement, shall be ineffective. Notwithstanding the foregoing, prior to the
Executive having the right to terminate this Agreement under this clause (vi),
the Executive shall first provide the Company with written notice specifying
such breach in reasonable detail and if such breach is susceptible to cure,
the
Company shall then have a 5 day period to cure such breach alleged by the
Executive, and if such breach is cured within such period, the Executive shall
have no right to terminate this Agreement based on such breach;
-5-
(vii)
a
material breach by the Company of this Agreement. Notwithstanding the foregoing,
prior to the Executive having the right to terminate this Agreement under this
clause (vii), the Executive shall first provide the Company with written notice
specifying such material breach in reasonable detail and, if such material
breach is susceptible to cure, the Company shall then have a 30 day period
to
cure such material breach and if so cured, the Executive shall have no right
to
terminate this Agreement based on such material breach; or
(viii) the
relocation of the Executive’s principal place of business outside of a thirty
(30) mile radius from the Company’s New York City office as of the Commencement
Date or anywhere other than the Company’s headquarters and principal executive
offices.
6. Death
and Disability.
The
Company may terminate the Executive’s employment if the Executive becomes
Disabled during the Employment Term. The Employment Term shall automatically
terminate upon the Executive’s death. Upon termination of the Executive’s
employment due to death or Disability, the Executive, or upon the Executive’s
death, his estate, survivors or beneficiaries, shall receive his Base Salary
and
all Rights through the date of termination, but no other compensation or
severance. For purposes of this Agreement, “Disability”
means
that the Executive has been unable, after reasonable accommodation by the
Company, for a period of one hundred eighty (180) consecutive days, or for
periods aggregating one hundred eighty (180) days in any period of twelve (12)
consecutive months, to perform a material portion of the Executive’s duties
under this Agreement as a result of physical or mental illness or injury.
7. Other
Termination.
(a) Notice
of Termination.
Any
termination of the Executive’s employment hereunder by the Company shall be
communicated by Notice of Termination to the Executive in accordance with this
Section 7(a). For purposes of this Agreement, a “Notice
of Termination”
means
a
written notice from the Company that states the specific termination provision
of this Agreement relied upon, sets forth in reasonable detail the facts and
circumstances claimed to provide the basis for such termination of the
Executive’s employment under the provision so indicated, and specifies the date
of termination of the Executive’s employment, which shall be not less than
thirty (30) days from the date such Notice of Termination is received by the
Executive, subject to Section 7(c). In the event of a termination by the Company
of the Executive without Cause, the Notice of Termination shall so state and
shall not be required to provide any facts or circumstances claimed to provide
the basis for such termination.
-6-
(b) Termination
for Cause or without Good Reason.
If (i)
the Company terminates the Executive’s employment for Cause or (ii) the
Executive terminates his employment without Good Reason, the Executive shall
be
entitled to all Rights, to be paid within seven (7) days following such
termination or as soon as practicable under the terms and conditions of the
applicable plan, program or arrangement that are applicable to other senior
executive participants. For termination of the Executive’s employment for Good
Reason to be effective, notice of termination must be received by the Company
no
more than thirty (30) days after the Executive learns of the acts or omissions
purporting to constitute Good Reason which notice shall state the specific
provision of this Agreement relied upon and set forth in reasonable detail
the
facts and circumstances claimed to provide the basis for such termination for
Good Reason.
(c) Definition
of Cause.
For
purposes of this Agreement, “Cause”
shall
mean (i)
the
occurrence of a breach of any material covenant contained in this Agreement
by
the Executive and the failure to cure such breach within thirty (30) days
following Executive’s receipt of written notice with respect thereof; or (ii)
Executive’s willful malfeasance, gross negligence or gross or willful misconduct
in the performance of his duties hereunder after thirty (30) days prior written
notice to the Executive specifying the basis of such neglect and the failure
of
the Executive to correct such neglect; or (iii) the Executive’s theft or
embezzlement from the Company; (iv) the Executive having willfully engaged
in
misconduct with regard to the Company that has resulted in, or is reasonably
likely to result in, material damage to the business or reputation of the
Company; or (v) the Executive’s conviction of a felony under the laws of the
United States or any state of the United States; or (vi) a final order by the
Securities and Exchange Commission pertaining to the Executive that could
reasonably be expected to impair or impede the Executive from performing the
functions and duties contemplated by this Agreement.
For
purposes of this Agreement, no act or failure to act by the Executive shall
be
considered “willful” unless it is done, or omitted to be done, in bad faith and
without a reasonable belief that the Executive’s action or omission was in the
best interests of the Company. Any act or failure to act based upon authority
given pursuant to a resolution of the Board or the written instructions of
the
Board or based upon the written advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. For termination of the
Executive’s employment for Cause to be effective, the Board must give the
Executive at least thirty (30) calendar days’ advance written notice of its
intent to terminate his employment for “Cause” specifying in reasonable detail
the conduct of the Executive the Board believes constitutes Cause; such notice
must be received by the Executive no more than thirty (30) calendar days after
the Board learns of such conduct; and the termination for Cause must be pursuant
to a resolution of the Board (1) adopted at a meeting of the Board called and
held for such purpose (after reasonable notice is provided to the Executive,
and
the Executive is given an opportunity, together with his counsel, to be heard
by
the Board) by the affirmative vote of a majority of the entire membership of
the
Board, excluding the Executive, (2) specifying the specific grounds on which
the
termination for Cause is based, which grounds must have been set forth in the
original Cause notice, and (3) finding that in the opinion of the Board such
grounds constitute Cause as described in Section 7(c)(i), (ii) or (iii).
-7-
8. Indemnification.
(a) If
the
Executive is made a party to or threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(a
“Proceeding”),
by
reason of the fact that the Executive is or was an employee, officer or director
of the Company or any subsidiary or affiliate of the Company, or is or was
serving at the request of the Company, or in connection with his service
hereunder, as a director, officer, member, partner, employee, fiduciary,
trustee, consultant, representative or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, the Executive shall be indemnified and held
harmless by the Company to the fullest extent permitted by the Company’s
certificate of incorporation, by-laws, or applicable law, as the case may be,
on
the same basis as all other senior executives, against all Expenses (as defined
below) incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if the Executive ceases
to be an officer, director, member, partner, trustee, fiduciary, consultant,
representative or agent of, or is no longer employed by, the Company, and shall
inure to the benefit of the Executive’s heirs, executors and administrators. The
term “Expenses”
shall
include reasonable fees, costs, and expenses, losses, judgments, damages,
liabilities, fines, penalties, excise taxes, settlements, reasonable attorneys’
fees and expenses, reasonable accountants’ and other professionals’ fees and
expenses, and reasonable disbursements and costs of attachment or similar bonds,
investigations, and any reasonable expenses of establishing a right to
indemnification under this Agreement. Without limiting the foregoing reference
to the Company’s Certificate of Incorporation, By-Laws or applicable law, the
right of the Executive to indemnification is subject to the Executive’s actions,
which form the basis for the Proceeding having been taken in good faith and
in a
manner the Executive reasonably believed to be in or not opposed to the best
interest of the Company and, with respect to any criminal action or proceeding,
the Executive had no reasonable cause to believe that his conduct was unlawful.
(b) The
Company shall, within seven (7) days of presentation of invoices or other
appropriate documentation, pay all Expenses incurred in connection with any
Proceeding relating to the Executive’s services as an officer, employee or
director of the Company or any other indemnifiable matter; provided
that if
it is determined in accordance with the Company’s Certificate of Incorporation,
bylaws, this Agreement and/or applicable law that the Executive is not entitled
to reimbursement for all or any part of such Expenses, the Company shall not
be
obligated to pay the Expenses, or if paid, the Executive shall reimburse the
Company therefor.
(c) The
Company shall cover the Executive under its directors’ and officers’ liability
insurance on the same terms and on the same basis as all directors and other
senior executive officers of the Company as in effect from time to
time.
(d) Notwithstanding
any other provisions of this Agreement to the contrary, the obligations of
the
Company under this Section 8 shall continue during the Employment Term and,
after the Executive ceases to be an officer or employee of the Company, during
any period which the Executive may be liable for acts or omissions as an officer
or employee of the Company or its subsidiaries or affiliates or any other
potentially indemnifiable matter (but no less than three (3) years after the
date of such cessation) on the same basis as all other senior executives of
the
Company.
-8-
(e) The
right
to indemnification and the payment of Expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this Section 8
shall
not be exclusive of any other right which the Executive may have or hereafter
may acquire under any statute, provision of the certificate of incorporation
or
by-laws of the Company, agreement, vote of stockholders or disinterested
directors or otherwise.
9. Confidential
Information.
The
Executive shall, from time to time, have access to confidential information
relating to the business of the Company and its subsidiaries. During the
Employment Term and for a period of three (3) years thereafter, the Executive
shall not communicate or knowingly divulge any such confidential information
that he may obtain during his employment by the Company and its subsidiaries
to
any other person, firm or corporation, except to the minimum extent necessary
in
the course of his employment with the Company and its subsidiaries or with
the
prior written consent of the Company or to defend his own rights or as required
by applicable law or regulation or the order of a court or other governmental
body having jurisdiction over such matter; provided,
however,
that
the Executive shall have no obligation to maintain in confidence any information
that is or becomes publicly available other than as a result of the Executive’s
violation of this Section 9 or any information of a type not otherwise
considered confidential by persons engaged in the business conducted by the
Company or any of its subsidiaries; and provided further that at no time,
including three (3) years after termination of employment, may the Executive
use
or disclose personal information, including contact information, of or relating
to any client of the Company in a manner or for a purpose that could reasonably
be expected to cause harm to the Company, other than clients introduced to
the
Company by the Executive, as to whose personal information this Section 9 shall
not apply.
10. Non-Competition.
During
the Employment Term and continuing until the twelve month anniversary date
after
the termination of the Executive’s employment hereunder (the “Restricted
Period”),
the
Executive shall not, without the prior written consent of the Company, directly
or indirectly, render services of a business, professional or commercial nature
(whether for compensation or otherwise) or lend money to any person or entity
competitive with the business engaged in by the Company or any of its
subsidiaries within twelve (12) months prior to such termination of employment,
or serve as an officer, director, employee, partner, member, owner, consultant
or independent contractor in any entity which is competitive with the business
engaged in by the Company or any of its subsidiaries within twelve (12) months
prior to such termination of employment. Notwithstanding the foregoing, nothing
shall prevent the Executive from (a) owning publicly traded securities issued
by
any such competitive entity, provided
that the
ownership thereof by the Executive does not constitute more than 3.5% of all
of
such entity’s publicly traded outstanding securities or (b) being employed by or
otherwise involved with a subsidiary or division, which is not competitive
with
the business of the Company or any of its subsidiaries, of a company that is
otherwise competitive with the business of the Company or any of its
subsidiaries. The Executive acknowledges that the restrictions contained in
this
Section 10 and in Section 11 of this Agreement are fair and reasonable to
protect the legitimate interests of the Company, are not unreasonably burdensome
to the Executive, and are supported by adequate consideration.
11. Non-Solicitation.
During
the Restricted Period, the Executive shall not, directly or indirectly, for
himself or on behalf of any other person or entity, employ, engage or retain
any
person who at any time during the then immediately preceding 12 month period
shall have been an employee of the Company or any of its subsidiaries (other
than any such person whose employment was terminated by the Company prior to
such employment, engagement or retention), or contact any supplier, customer
or
employee of the Company or any of its subsidiaries for the purpose of soliciting
or diverting any such supplier, customer or employee from its business
relationship with the Company or any of its subsidiaries or otherwise
intentionally interfering with the business relationship of the Company or
any
of its subsidiaries with any of the foregoing.
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12. Non-Disparagement;
Release; Other Agreements.
(a)
At
any
time during the Employment Term and thereafter, the Company and/or its
subsidiaries or affiliates (collectively, the “Company
Parties”),
on
the one hand, and the Executive, on the other hand, shall not make or authorize
any person to make or allow any statement or take any action, public or private,
which would disparage or criticize the other party, including, for example,
their character and/or services; provided,
however,
that
nothing contained in this Section 12(a) shall preclude any Company Party or
the
Executive from making any truthful statement in good faith which is required
by
any applicable law or regulation or the order of a court or other governmental
body.
(b) If
the
Company shall have failed to duly and punctually pay and provide any and all
payments and benefits to which the Executive is entitled from the Company,
including any severance payments and benefits under Section 5, for ten (10)
days
after the Executive provides the Company with written notice of such failure,
the Executive shall not be required to comply with the Agreements and covenants
set forth in Sections 10 and 11 of this Agreement; however, the agreements
and
covenants set forth in Section 9 of this Agreement shall remain in full force
and effect.
(c) As
a
condition to the receipt by the Executive of Base Salary following termination
pursuant to Section 5, the Executive and the Company shall execute and deliver
a
mutual release of claims in form and substance reasonably acceptable to the
parties hereto.
13. Notice.
All
notices and all other communications provided for in this Agreement shall be
in
writing and shall be deemed to have been duly given when delivered or mailed
certified or registered mail, return receipt requested, postage prepaid, and,
if
to the Executive, addressed to him at 00 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000,
and,
if to the Company, addressed to it at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx,
XX 00000, Attention: Chief Financial Officer, or to such other address as either
party may have furnished to the other in accordance herewith, except that notice
of change of address shall be effective only upon receipt.
14. Applicable
Law; Venue.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without reference to rules relating to conflict of law.
Each
of the Executive and the Company unconditionally and irrevocably consents
to the
exclusive jurisdiction and venue of the Supreme Court of the State of New
York,
New York County and the United States District Court for the Southern District
of New York as the sole venue for any suit, action or proceeding arising
out of
or relating to this Agreement, and each of the Executive and the Company
hereby
unconditionally and irrevocably waives any objection to venue in any such
court
or to assert that any such court is an inconvenient forum, and agrees that
service of any summons, complaint, notice or other process relating to such
suit, action or other proceeding may be effected in the manner provided in
Section 13 hereof. Each of the Executive and the Company hereby unconditionally
and irrevocably waives the right to a trial by jury in any such action, suit
or
other proceeding.
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15. Successors;
Binding Agreement.
This
Agreement shall be binding upon any successor (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business and/or assets of the Company, and the Company shall require any such
successor to expressly assume and agree in writing to perform this Agreement
in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place, or, in the event the Company
remains in existence, the Company shall continue to employ the Executive under
the terms hereof. The Company cannot assign, or delegate its duties under,
this
Agreement except (i) pursuant to the immediately preceding sentence, or (ii)
to
a subsidiary of the Company, provided
that
such subsidiary expressly assumes and agrees in writing to perform this
Agreement and, in such case, the Company’s liability to make and provide
payments and benefits hereunder shall nevertheless not be discharged thereby.
As
used in this Agreement, the “Company”
shall
mean the Company and any successor to its business and/or assets, which assumes
or is obligated to perform this Agreement by contract, operation of law or
otherwise. This Agreement shall inure to the benefit of and be enforceable
by
the Executive and his personal or legal representatives, executors, estate,
trustee, administrators, successors, heirs, distributees, devisees and legatees.
The Executive may not assign this Agreement or any rights hereunder, or delegate
his duties under this Agreement, without the prior written consent of the
Company; however,
in the
event of the death of the Executive, all rights to receive payments hereunder
shall become rights of the Executive’s devisee, legatee or other designee or the
Executive’s estate.
16. No
Mitigation; No Set-Off.
In the
event of any termination of the Executive’s employment, he shall be under no
obligation to seek other employment or take any other action by way of
mitigation of the amounts payable, or benefits provided, to the Executive under
any of the provisions of this Agreement. The Company’s obligation to make the
payments, and provide the benefits, provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by (a) any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against the Executive except pursuant to Section 8, or (b)
any
remuneration or benefits attributable to any subsequent employment with an
unrelated person, or any self-employment, that the Executive may obtain. Any
amounts due under Section 5 are considered reasonable by the Company and are
not
in the nature of a penalty.
17. Non-Exclusivity
of Rights.
Nothing
in this Agreement shall prevent or limit the Executive’s continuing or future
participation in any benefit or compensation plan, program, policy or practice
provided by the Company and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may
have
under any other contract or agreement entered into after the Commencement Date
with the Company. Amounts that are vested benefits or that the Executive is
otherwise entitled to receive under any benefit or compensation plan, policy,
practice or program of, or any contract or agreement entered into after the
date
hereof with, the Company at or subsequent to the date his employment with the
Company terminates shall be payable in accordance with such benefit or
compensation plan, policy, practice, program, contract or agreement, except
as
explicitly modified by this Agreement. Notwithstanding the foregoing, nothing
in
this Section is intended to give the Executive additional rights not set forth
in this Agreement.
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18. Entire
Agreement; Modification.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral. No provision of this Agreement may be waived, modified,
amended or discharged unless such waiver, modification, amendment or discharge
is agreed to in writing and signed by the Executive and such officer of the
Company as may be specifically designated by the Company. No waiver by either
party to this Agreement at any time of any breach by the other party hereto
of,
or compliance with, any condition or provision of this Agreement shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any
prior or subsequent time.
19. Company’s
Representations.
The
Company represents and warrants that it is free to enter into this Agreement
and
to perform each of the terms and covenants of it. The Company represents and
warrants that it is not restricted or prohibited, contractually or otherwise,
from entering into and performing this Agreement, and that its execution and
performance of this Agreement is not a violation or breach of, and does not
conflict with, any other agreement between the Company and any other person
or
entity. The Company represents and warrants that this Agreement is a legal,
valid and binding agreement of the Company, enforceable in accordance with
its
terms.
20. Executive’s
Representations.
The
Executive represents and warrants that he is free to enter into this Agreement
and to perform each of the terms and covenants of it. The Executive represents
and warrants that he is not restricted or prohibited, contractually or
otherwise, from entering into and performing this Agreement, and that his
execution and performance of this Agreement is not a violation or breach of,
and
does not conflict with, any other agreement between the Executive and any other
person or entity. The Executive represents and warrants that this Agreement
is a
legal, valid and binding agreement of the Executive, enforceable in accordance
with its terms.
21. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
22. Severability.
The
Company and the Executive agree that the agreements and provisions contained
in
this Agreement are severable and divisible, that each such agreement and
provision does not depend upon any other provision or agreement for its
enforceability, and that each such agreement and provision set forth herein
constitutes an enforceable obligation between the parties hereto. Consequently,
the parties hereto agree that neither the invalidity nor the unenforceability
of
any provision of this Agreement shall affect the other provisions, and this
Agreement shall remain in full force and effect and be construed in all respects
as if such invalid or unenforceable provision were omitted.
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23. Survival.
The
Executive’s rights hereunder, including his rights to compensation and benefits
shall survive the termination of this Agreement and the termination of his
employment hereunder. In addition, Sections 8 through 22, and Sections 24 and
25, as applicable to each of the Executive and the Company, shall survive the
termination of this Agreement and the termination of the Executive’s employment
hereunder.
24. Headings;
Construction.
The
inclusion of headings in this Agreement is for convenience of reference only
and
shall not affect the construction or interpretation hereof. The words “Section”
and “clause” herein shall refer to provisions of this Agreement, unless
expressly indicated otherwise. The words “include,” “includes” and “including”
herein shall be deemed to be followed by “without limitation” whether or not
they are in fact followed by such words or words of similar import, unless
the
context otherwise requires.
25. Specific
Performance.
The
Executive acknowledges that any breach or threatened breach of its covenants
contained in this Agreement could cause the Company material and irreparable
damage, the exact amount of which will be difficult to ascertain and that
the
remedies at law for any such breach or threatened breach will be inadequate.
Accordingly, the Executive agrees that the Company shall, in addition to
all
other available rights and remedies (including, but not limited to, seeking
such
damages), be entitled to specific performance and injunctive relief in respect
of any breach or threatened breach by the Executive of any covenants contained
in this Agreement, without being required to post bond or other security
and
without having to prove the inadequacy of the available remedies at law or
irreparable harm.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this Agreement as of the day and year first written
above.
| HALCYON JETS HOLDINGS, INC. | ||
| |
|
|
| Date: May 29, 2008 | By: | Xxxxxx Xxxxx |
|
Name: Xxxxxx Xxxxx
Title: Chair of the Compensation
Committee of the Board of
Directors
|
||
| |
|
|
| Date: May 29, 2008 | Xxxxxxxx Xxxxx | |
|
XXXXXXXX XXXXX |
||
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