EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and executed as of the 14th day of November, 1996,
by and between CCAIR, INC., a Delaware Corporation (the "Company") and XXXXXXX
X. XXXX, a resident of Lake Xxxxx, South Carolina ("Employee").
1. Employment. The Company hereby employs the Employee and the Employee
hereby accepts employment under the terms and conditions hereinafter set forth.
2. Duties. The Employee shall serve as President and Chief Executive
Officer and shall perform such duties and have such responsibilities as normally
attributed to a president and chief executive officer of a Delaware corporation.
Employee shall perform such duties at the principal business office of the
Company in Charlotte, North Carolina. Additions to Employee's duties under this
Agreement shall not result in additional compensation unless expressly agreed to
by the Company's Board of Directors.
3. Term. The term of employment hereunder shall begin on the date of this
Agreement and, subject to the termination provisions set forth in Section 8
hereof, shall continue for a period of three (3) years after the expiration of
the Employment Agreement between the Company and Employee dated February 8,
1994.
4. Compensation.
a. Company shall pay Employee an annual salary of ONE HUNDRED FORTY
FIVE THOUSAND DOLLARS ($145,000.00) payable in equal monthly
installments (the "Base Salary"). The Base Salary shall be reviewed
prior to each anniversary date of this Agreement by the Board of
Directors of the Company.
b. For each fiscal year during the term of this Agreement,
beginning with the fiscal year ending June 30, 1997, Employee shall
receive a bonus payable at the discretion of the Board of Directors, or
any committee thereof, based upon the after-tax profits of the Company.
5. Reimbursement of Expenses. The Company shall reimburse the Employee for
reasonable and necessary out-of-pocket expenses, including, without limitation,
entertainment, travel, and similar expenses incurred by him in performing the
duties set forth in Section 2 hereof, upon presentation by the Employee of an
itemized account of such expenses, supported by such documentation as is
required under the Internal Revenue Code of 1986, as amended, to support the
deductibility of such expenses for federal income tax purposes.
EXHIBIT 10.35
6. Fringe Benefits and Vacation.
a. Employee shall be entitled to participate in all fringe
benefits and employee benefit plans made available, from time to time,
by the Company to its employees, provided that the Company may change
such benefits or plans in its sole discretion.
b. Employee shall be entitled to fifteen (15) days of vacation
during each year that this Agreement is in effect.
7. Options. Employee shall be entitled to a number of options equal to
or greater than the number granted to any other individual employee or member of
the Board of Directors of the Company, which options shall be granted on terms
at least as favorable as those upon which options granted to other employees or
directors of the Company are granted.
8. Termination.
a. This Agreement shall terminate upon the earlier of
(i) the date of termination as provided in Section 3 hereof;
(ii) the death of the Employee; of (iii) the inability of the Employee
to perform his services by reason of illness or incapacity for a period
of more than three (3) consecutive months. The Board of Directors of the
Company may terminate this Agreement for cause at any time and all
salary and fringe benefits shall cease to accrue as of the effective
date of each termination. "Cause" shall be defined as the conviction of
Employee of commission of a felony, willful misconduct in the
performance of his duties, or gross negligence in the performance of his
duties.
b. If Employee shall voluntarily resign from employment by the
Company prior to the expiration of this Agreement or shall be terminated
by the Company for cause as defined herein, any compensation payable to
Employee under Section 4 shall be prorated through date of termination
and no bonus will be payable.
c. (i) At its option, the Board of Directors of the Company may
elect a new Chairman and Chief Executive Officer. Employee shall then
become President and Chief Operating Officer of the Company, with the
responsibility for and authority to oversee all aspects of the day to
day operation of the Company. In such an event, Employee may, at his
option, either (A) assume the position of President and Chief Operating
Officer, or (B) terminate his employment hereunder. If Employee elects
to terminate under this Subsection 8(c)(i), Employee shall be entitled
to his then current salary for twelve months from the date of
termination.
EXHIBIT 10.35
(ii) If the Board of Directors or the Chief Executive Officer of
the Company reduces Employee's job responsibilities to something less
than those normally attributed to that of a President and Chief
Operating Officer of a Delaware corporation, Employee may, upon thirty
days written notice, terminate this Agreement at his option. Employee's
determination that his job responsibilities have been so reduced shall
be final. In the event Employee opts to terminate his employment
pursuant to this Subsection 8(c)(ii), Employee shall be entitled to all
compensation set forth in Section 4 and all the fringe benefits set
forth in Section 6 for the entire term of this Agreement.
d. If the Company terminates this Agreement without cause during
the term of this Agreement, then Employee shall be entitled to all
compensation set forth in Section 4 and all the fringe benefits in
Section 6 for the entire term of this Agreement.
9. Exclusivity.
a. Employee shall devote his best efforts to the performance of his
duties under this Agreement. Employee agrees that all information which
he obtains in the course of his employment is the property of the
Company and agrees that he will not discuss any such information or use
any such information for the benefit of himself or any person or entity
other than the Company at any time during or after his employment.
b. During the time period in which Employee may receive payments
from the Company after termination of employment for cause as defined
herein, Employee agrees that he will not engage in employment or
business activities which are reasonably deemed to be competitive to the
Company and its business.
c. The parties hereto, recognizing that irreparable injury will
result to the Company, its business and property in the event of a
breach of this Agreement by Employee, and that employment is based
primarily upon this Agreement, it is agreed that in such event the
Company shall be entitled, in addition to any other remedies and damages
available, to an injunction to restrain the violation thereof by
Employee, his partners, agents, servants, employers, and Employees, and
all persons acting for or with him. The Employee represents and admits
that in the event of the termination of his employment for any cause
whatsoever, his experiences and capabilities are such that he can obtain
employment in business engaged in other lines and/or of a different
nature, and that the enforcement of a remedy by way of injunction will
not prevent him from earning a livelihood.
EXHIBIT 10.35
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail, return receipt requested, to his residence in the case of the
Employee, or to its principal office in the case of the Company. The notice
shall be deemed given at the time of its proper mailing.
11. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and shall not
operate or be construed as a waiver of any subsequent breach.
12. Assignment. This Agreement shall be binding upon, shall inure to the
benefit of, and shall be enforceable by and against the Company and its
successors and assigns. The Employee shall have no right to assign this
Agreement or any of his rights or obligations hereunder, either by operation of
law or otherwise, except with the express written consent of the Company.
13. Entire Agreement; Amendments. This instrument contains the entire
agreement of the parties. No change or modifications of this Agreement shall be
valid unless in writing and signed by the party against whom enforcement of any
such change or modification is sought.
14. Section Titles. Section titles appearing in this Agreement are inserted
only for convenience, and are in no way to be construed as a part of this
Agreement or as a limitation on the scope of the particular Section to which
they refer.
15. Severability. The invalidity or unenforceability of a particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such unenforceable or
invalid provisions were omitted.
16. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of North Carolina.
17. Prior Agreements. This Agreement supersedes any and all prior
employment arrangements between Employee and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement and affixed
hereto their respective seals as of the date first above written.
CCAIR, INC.
-------------------(SEAL) By:
XXXXXXX X. XXXX ----------------------------
XXXX X. XXXXX
DIRECTOR
