EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated November 21, 1996 between Xxxxxx
X. Xxxxxx, currently residing at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000 ("Employee"), and Western Pacific Airlines, Inc., a Delaware
corporation (the "Company").
1) EMPLOYMENT. Subject to the terms and conditions herinafter set forth, the
Company hereby agrees to employ Employee, and Employee hereby agrees to be
employed by the Company, during the three-year period (the "Employment Term")
beginning on December 2, 1996 (the "Commencement Date"), and ending on
December 1, 1999; provided, however that the Employment Term shall
automatically extend for successive one-year periods, with the annual cycle
thereof running from each December 2 to the December 1 of the following year,
unless not later than June 1 of any year, commencing with June 1, 1999, the
Company shall have given written notice to Employee that the Company does not
wish to extend the Employment Term, and receive his then current base salary
for a period of twelve months from the date of such written notice and
Employee shall be entitled to receive passes as specified in Section 8(e).
The Employment Term may be terminated pursuant to the provisions of Section 5
or Section 6 hereof.
2) DUTIES. Employee shall be employed in the capacity of President and Chief
Executive Officer of the Company. Employee shall have such duties as may
reasonably be assigned to him by the Board of Directors of the Company.
Employee shall perform such duties diligently and to the best of his ability,
and shall comply with the Company's business conduct policies as in effect
from time to time. Employee's duties shall be performed primarily at the
Company's headquarters in Colorado Springs, Colorado, with such travel as the
performance of his duties may reasonably require. As President and Chief
Executive Officer, Employee shall have general supervision over the Company's
other officers, employees, agents and representatives. The Company shall use
its best efforts and powers to cause Employee's election as a director of the
Company as of the Commencement Date and shall use its best efforts and powers
to sustain and continue Employee's election as a director of the Company
during the Employment Term. Except as otherwise set forth herein, during the
Employment Term, Employee shall devote his entire working time, attention and
energy to the business of the Company, and shall not be engaged in any other
business activity that, in any significant way, conflicts with or interferes
with Employee's performance of his duties hereunder, except as authorized by
the Board of Directors of the Company. The Company undertakes not to either
materially diminish the responsibilities, duties and authority of Employee or
require that Employee relocate his principal residence from Detroit, Michigan
without the prior consent of Employee.
3) COMPENSATION AND BENEFITS
(a) SALARY. During the Employment Term, the Company shall pay Employee for
his services hereunder a base salary at the rate of $300,000 per annum, for
the first twelve months of the Employment Term and, increased upward for each
successive twelve-month period by that percentage which is equal to the annual
increase in the Consumer Price Index (as hereinafter defined), and subject
further to upward adjustment in accordance with the Company's salary review
practices and procedures in effect from time to time. Such salary shall be
payable semi-monthly in accordance with the regular payroll policies of the
Company in effect from time to time.
(b) BENEFITS. During the Employment Term, Employee shall be entitled to
participate in, to the extent Employee is eligible under the terms thereof,
all benefit plans and programs that are generally provided from time to time
by the Company to its executive personnel, including an incentive compensation
plan, a pension or profit sharing plan, a stock purchase plan a bonus plan, a
group benefit plan and a medical plan. Notwithstanding anything herein to the
contrary, Employee and Employee's dependents shall be covered, without regard
to waiting periods or to exclusions for pre-existing conditions, from the
Commencement Date forward, under either the Company's health plan, or an
individual health policy procured and maintained by the Company, the Company's
group term life insurance plan and the Company's group long-term disability
plan. Subject to the rights of Employee set forth in Sections 5 and 6 hereof,
nothing herein shall preclude the Company from terminating or amending any
employee benefit plan or program.
(c) VACATION. During the Employment Term, Employee shall be entitled to not
less than four weeks of vacation per calendar year to be taken in accordance
with the Company's normal vacation policies in effect from time to time.
(d) BONUSES. Employee shall be entitled to receive bonuses as follows:
(i) Upon the date of execution of this Agreement, Employee shall receive a
cash signing bonus in the amount of $300,000; and
(ii) Upon each anniversary of this Agreement during the Employment Term,
Employee shall participate in any performance bonus plan that may be adopted
by the Company's Board of Directors.
(e) SUPPLEMENTAL INSURANCE. The Company will procure and maintain in force,
during the Employment Term, on behalf of Employee and in his name a term life
insurance policy upon the life of Employee in the amount of $1,000,000.00,
with the beneficiaries to be designated by Employee. Upon termination of his
employment with the Company for any reason, Employee shall be entitled to
retain such life insurance policy. The Company will also procure and
maintain, to the extent the Company's long term disability insurance for
executive personnel does not provide a benefit equal to 80% of Employee's base
salary, a supplemental long-term disability policy the terms of which shall be
the insurance carrier's standard terms for such policies, which provides a
benefit such that Employee's aggregate long term disability coverage is equal
to 80% of Employee's then-current base salary.
(f) STOCK GRANT AND OPTIONS. Upon the date of execution of this Agreement,
Employee shall receive a grant of 100,000 shares of the Company's common
stock, which shares shall vest in Employee as follows: the first 34,000
shares shall vest on November 21, 1997, the second 33,000 shares shall vest on
November 21, 1998, and the last 33,000 shares shall vest on November 21, 1999.
In addition, upon the date of execution of this Agreement the Company shall
cause to be granted to Employee, under the Company's 1994 Stock Option Plan,
options with respect to 300,000 shares of Company stock, each such option to
be exercisable at a price of $7.75 per share and to vest at the rate of
100,000 shares per year at the same times as the Company stock granted to
Employee shall vest. To the maximum extent permitted by law, such options
shall be incentive stock options, within the meaning of section 422 of the
Internal Revenue Code of 1986. as amended.
(g) TRAVEL AND BUSINESS EXPENSES. Upon submission of itemized expense
statements in the manner specified by the Company, Employee shall be entitled
to reimbursement for reasonable travel and other business expenses, including
luncheon club dues and expenses in the Colorado Springs, Colorado area,
incurred by Employee in the performance of his duties hereunder. The Company
shall provide Employee with a monthly automobile allowance of $650.00. The
Company shall provide a Company-owned cellular phone, pager and laptop
computer to Employee to be used by Employee during the Employment Term.
(h) LIVING EXPENSES. Upon submission of itemized expense statements in the
manner specified by the Company with respect to travel and business expenses
and for the period beginning with the Commencement Date and ending twelve
months thereafter, (except for airfare, which shall continue during the
Employment Term), unless otherwise extended by the Board of Directors,
Employee shall be entitled to reimbursement for reasonable out-of-pocket
living expenses incurred while Employee is residing in the Colorado Springs,
Colorado area, including, without limitation, airfare between Detroit,
Michigan or such other location as then constitutes Employee's permanent
residence and Colorado Springs, Colorado, and apartment rental and food
expenses in the Colorado Springs, Colorado area.
(i) PAYMENT. Payment of all compensation and benefits to Employee hereunder
shall be made in accordance with the relevant policies of the Company in
effect from time to time and shall be subject to all applicable employment and
withholding taxes.
(j) CESSATION OF EMPLOYMENT. If Employee shall cease to be employed by the
Company for any reason, then Employee's compensation and benefits shall cease
as of the Termination Date, except as otherwise provided herein or in any
applicable employee benefit plan or program.
4) EMPLOYEE'S OTHER ACTIVITIES. Notwithstanding any provision to the contrary
herein, during the Employment Term, Employee may serve on the Board of
Directors for up to two other public companies, provided that such companies
are not direct competitors with the Company. In addition, the Company
acknowledges that Employee is the holder of Trans World Airlines stock options
and the Employee will in no way be restricted by this Agreement, the Company
or the Board of Directors of the Company with respect to his ability to
exercise such options or dispose of such options or any stock acquired
thereunder.
5) TERMINATION OF EMPLOYMENT OF EMPLOYEE BY THE COMPANY.
(a) Employee's employment may be terminated by the Company for Cause (as
hereinafter defined) at any time, effective not earlier than 30 days following
the giving to Employee of a written notice of termination specifying in detail
the particulars of the conduct of Employee deemed by the Company to justify
such termination for Cause and which shall include copies of Board of
Directors resolutions in which appropriate determinations have been made in
support of such termination. If such termination is based on subclauses (I)
or (ii) of subsection 14(a) hereof, Employee shall be entitled to and may
demand a hearing before the Board of Directors, prior to the effective date of
termination, at which hearing all of the evidence and other considerations
material to the determination of the Board of Directors to terminate Employee
shall be openly discussed and Employee shall have the opportunity to present
additional relevant evidence and relevant arguments as to why Employee should
not be terminated for Cause. Employee shall be entitled to be represented by
counsel. At the conclusion of the hearing, the Board of Directors may take
any action it deems appropriate or may, in its discretion, take no further
actions. In order to xxxxxx openness and candor in such hearing, all
communications occurring in connection with any such hearing and related
proceedings shall be deemed confidential and privileged communications and
shall be inadmissible in any judicial or other proceeding. Unless the Board
of Directors otherwise determines, the conduct of any such hearing shall not
affect the timetable for the effective date of termination for Cause;
provided, however that the effective date of termination shall not be
retroactive.
(b) Employee's employment may be terminated by the Company Without Cause at
any time, effective not earlier than 30 days following the giving to Employee
of a written notice of termination specifying that such termination is Without
Cause.
(c) Upon a termination by the Company of Employee's employment for Cause,
Employee shall be entitled to the payments specified in subparagraph (a) of
Section 8 of this Agreement. Upon a termination by the Company of Employee's
employment Without Cause, Employee shall be entitled to all of the payments
and benefits provided for in subparagraphs (b), c, (d) and (e) of Section 8
hereof.
(d) If, as a result of Employee's incapacity due to physical or mental
illness, Employee shall have been absent from Employee's duties hereunder for
180 consecutive days, the Company may, by notice to Employee, terminate
Employee's employment hereunder for "Disability". Upon a termination of
Employee's employment for Disability, Employee shall be entitled to the
payments specified in subparagraphs (b), c, (d) and (e) of Section 8 of this
Agreement. During any period that Employee fails to perform Employee's duties
hereunder as a result of incapacity due to physical or mental illness,
Employee shall continue to receive the compensation and benefits provided for
in Section 3 hereof, provided, however, that the amount of compensation and
benefits received by Employee shall be reduced by the aggregate amounts, if
any, payable to Employee under disability benefit plans and programs of the
Company or under the Social Security disability insurance program.
6) TERMINATION OF EMPLOYMENT OF EMPLOYEE. Employee shall be entitled to
terminate his employment with the Company at any time, effective not earlier
than 30 days following the giving to the Company's Board of Directors of
written notice of termination. If such termination is for Good Reason,
Employee shall be entitled to all of the payments and benefits specified in
subparagraph (a) of Section 8. Employee shall give the Company written notice
of any such voluntary termination of employment, which notice need specify
only Employee's desire to terminate his employment and, if such termination is
for Good Reason, set forth in reasonable detail the facts and circumstances
claimed by Employee to constitute Good Reason.
7) CHANGE IN CONTROL. In the event of a "Change in Control" (as hereinafter
defined), Employee shall be entitled to the benefits specified in Section 8(d)
hereof.
8) PAYMENTS AND BENEFITS UPON TERMINATION. To the extent provided in Sections
5 and 6 hereof, upon termination (other than as to subparagraph (d) below
where the vesting referred to therein shall occur on the day immediately
preceding the date of termination) of his employment (other than termination
solely by reason of the expiration of the Employment Term), Employee shall be
entitled to receive the following payments and benefits:
(a) The Company shall pay to Employee without set-off on the Termination Date
(I) the full base salary earned by Employee through the Termination Date and
unpaid at the Termination Date, plus (ii) credit for any vacation earned by
Employee but not taken at the Termination Date, plus (iii) all other amounts
earned by Employee and unpaid as of the Termination Date.
(b) The Company shall pay to Employee without set-off all amounts he is or
would be entitled to receive under Section 3(a) hereof as if Employee were
employed through the later of the Completion Date (as hereinafter defined) or
the date which is twelve months following the date written notice of
termination is given. In addition, the Company shall pay to Employee without
set-off all amounts he is entitled to receive under Section 3(d) hereof as if
Employee were employed through the Completion Date. In each case, such
amounts shall be payable at Employee's election either in a lump sum or at the
times such amounts would have been payable were Employee to remain employed by
the Company.
(c) The Company shall provide to Employee without set-off all benefits he is
entitled to receive under Sections 3(b) and 3(e) hereof as if Employee were
employed through the Completion Date. Until the earlier of (I) the Completion
Date or (ii) Employee's similar coverage (without exclusions for preexisting
conditions) by a new employer, the Company shall maintain in full force and
effect for Employee's continued benefit all life insurance, medical, dental
and disability plans, programs or arrangements in which Employee is entitled
to participate immediately prior to the Termination Date, provided that
Employee's continued participation is possible under the terms and provisions
of such plans, programs or arrangements. In the event that Employee's
participation is any such plan, program or arrangement is barred by the terms
thereof, the Company shall arrange to provide Employee with benefits
substantially similar to those which Employee would otherwise be entitled to
receive under such plans, programs or arrangements. Any continuation of
benefits under this Section 8c shall not be counted towards the benefits
extension period mandated by the Consolidated Omnibus Budget Reconciliation
Act of 1985.
(d) The Company shall vest Employee in any Company stock previously granted to
Employee and any options with respect to Company stock previously granted to
Employee which have not vested by their terms as of Employee's Termination
Date, and, with respect to any such options, the options shall remain
exercisable for a period of twelve months following Employee's Termination
Date.
(e) Employee and Employee's eligible dependents will be issued lifetime
positive space first class no service charge passes, on a basis commensurate
with the position of the Company's chief executive officer, on the Company
airline. Employee's passes will not be transferable but will cover one
additional individual if such individual is accompanying Employee.
9) TAX INDEMNITY. If any amounts, reimbursements or benefits payable by the
Company to Employee pursuant to Sections 3(g) or 3(h) of this Agreement are
determined to be subject to any tax pursuant to any federal, state or local
tax laws, the Company shall pay to Employee such additional sum as is
necessary (after taking into account all federal, state and local income taxes
payable by Employee as a result of the receipt of such additional sum) to
place Employee in the same after-tax position he would have been in had no
such tax been paid or incurred.
10) EMPLOYEE'S ENFORCEMENT EXPENSES. All costs and expenses (including
reasonable legal and accounting fees) incurred by Employee to (I) defend the
validry of this Agreement, (ii) contest the termination of his employment by
the Company or any determinations by the Company concerning the amounts
payable by the Company under this Agreement or c otherwise obtain or enforce
any right or benefit provided to Employee by this Agreement (including,
without limitation, any right or benefit under this Section 10) shall be paid
by the Company if Employee is the prevailing party. Notwithstanding the
foregoing, all costs and expenses (including reasonable legal fees) incurred
by Employee in connection with his negotiations to become affiliated with the
Company, including the negotiation of this Agreement, and his consultation
during the Employment Term with his legal counsel with respect to his
relationship with the Company pursuant to this Agreement and his rights and
obligations hereunder, shall be paid by the Company.
11) CONFIDENTIAL INFORMATION. Employee, during the period of his employment
by the Company and thereafter, irrespective of whether the termination of his
employment is voluntary or involuntary, will not directly or indirectly
(without the Company's prior written consent), use for himself, or use for or
disclose to any other party, any confidential information regarding the
Company. For purposes of this Agreement, such confidential information shall
include any data or information regarding the business of the Company or any
subsidiary or affiliate of the Company that is not generally known to the
public, including without limitation any confidential information or data
regarding the plans of the Company or its affiliates or the business methods
of the Company or its affiliates not in general use by others. The Company
acknowledges that Employee has substantial experience in the airline industry
and possesses extensive information and knowledge regarding the industry in
general which shall not be deemed confidential information for purposes of
this Agreement.
12) INDEMNIFICATION. The Company shall defend, indemnify and hold harmless
Employee (including, without limitation, the prompt advance payment of all
reasonable legal fees and expenses) to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware and by the
Certificate of Incorporation of the Company as in effect from time to time.
The Company shall cause Employee to be covered by the current policies of
directors' and officers' liability insurance covering directors and officers
of the Company, copies of which have been provided to Employee, in accordance
with their terms, to the maximum extent of the coverage available for any
director or officer of the Company. The Company shall use commercially
reasonable efforts to cause the current policies of directors' and officers'
liability insurance covering directors and officers of the Company to be
maintained throughout the Employment Term (provided that the Company may
substitute therefore, policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured in any material respect.)
13) NOTICE. All notices hereunder shall be in writing and shall be deemed to
have been duly given (I) when delivered personally or by courier, or (ii) on
the third business day following the mailing thereof by registered or
certified mail, postage prepaid, in each case addressed as set forth below:
(a) If to the Company:
Western Pacific Airlines, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxxxxx, Colorado
Attention: Corporate Secretary
(b) If to Employee:
Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Any party may change the address to which notices are to be addressed by
giving the other party written notice in the manner herein set forth.
14) DEFINITIONS.
(a) "Cause", when used in connection with the termination of Employee's
employment by the Company, shall mean (I) the unreasonable willful or repeated
failure by Employee, in any material respect, to perform his lawful duties or
otherwise comply with any of his obligations hereunder, which failure is not
or cannot be cured within five business days after the Company has given
written notice thereof to Employee specifying in detail the particulars of the
acts or omissions deemed to constitute such failure; (ii) the engaging by
Employee in any act of dishonesty or willful misconduct or more than
immaterial significance; or (iii) Employee's conviction of, or entry of a plea
of nolo contendere with respect to any felony.
(b) "Change in Control" shall mean a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of 1934 as in effect on the date of this Agreement (the "Exchange Act"), or,
if Item 6(e) is no longer in effect, any regulation issued by the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 which
serves similar purposes; provided, however, that notwithstanding the foregoing
and except as expressly provided in the last unnumbered paragraph of this
subparagraph (b) of Section 14, a change in control of the Company shall be
deemed to have occurred if:
(i) Any "Person" (as such term in used in Sections 13(d) and 14(d)(2) of the
Exchange Act), other than the Company or one or more trusts established by the
Company for the benefit of employees of the Company or a corporation
controlled by the Company or the Company's stockholders, shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
50% or more of the Company's outstanding common stock (a "Fifty Percent
Beneficial Owner");
(ii) During any period of twenty-four (24) consecutive months, individual who
at the beginning of such period constitute the Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board of Directors; provided, however, that any individual becoming a
director during such period where election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding for this
purpose any such individual whose initial assumption of office is in
connection with an actual or threatened contest for the election of directors
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act, or if Rule 14a-11 is no longer in effect, any regulation issued
by the Securities and Exchange Commission pursuant to the Exchange Act which
serves similar purposes) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board of Directors;
(iii) There shall be consummated a consolidation or merger of the Company, in
which the Company is not the continuing or surviving corporation or other
entity, other than a consolidation or merger of the Company in which
immediately after the transaction, (A) the holders of shares of the Company's
common stock immediately prior to the consolidation or merger have at least
50% of the total voting power of the surviving corporation or other entity,
(B) at least a majority of the board of Directors of the resulting corporation
or other entity were members of the Incumbent Board, and ( C) no Person is a
Fifty Percent Beneficial Owner of the continuing or surviving corporation or
other entity; or
(ix) There shall be consummated a sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all, or substantially
all, of the assets of the Company other than a sale, lease, exchange or other
transfer to an entity in which the Company owns, directly or indirectly, at
least 80% of the outstanding voting securities after such transfer, and in
which immediately after such sale, lease, exchange or other transfer, (A) at
least a majority of the Board of Directors of the transferee entity were
members of the Incumbent Board, and (B) no Person (except the Company) is a
Fifty Percent Beneficial Owner of the Transferee entity.
(c) "Company" shall have the definition set forth in Section 15 hereof.
(d)"Completion Date" shall mean the date the Employment Term would have ended
under the provisions of Section 1 hereof had it not been terminated pursuant
to Section 5 or Section 6.
(e)"Consumer Price Index" shall mean the Consumer Price Index as computed for
All Urban Consumers (CPI-U).
(f)"Good Reason", when used with reference to a voluntary termination by
Employee of his employment with the Company, shall mean:
(i) The assignment to Employee of any duties materially inconsistent with, or
the reduction of powers or functions associated with, his positions, or status
with the Company, or the direction or assignment to Employee to perform any
act, or to refrain from performing any act, inconsistent with Employee's
overall fiduciary obligations as a director or officer of the Company, or any
removal of Employee from or any failure to re-elect Employee to any positions
or offices held by Employee, except in connection with the termination of
Employee's employment by the Company for Cause of for Disability;
(ii) A reduction in Employee's base salary as in effect from time to time;
(iii) The mandatory transfer of the permanent residence of Employee to
Colorado Springs, Colorado or to another geographic location;
(iv) The failure by the Company to continue in effect any employee benefit
plan, program or arrangement in which Employee was previously participating
(or plans, programs or arrangements providing Employee with substantially
similar benefits), or the taking of any action by the Company which would
adversely affect Employee's participation in. or materially reduce Employee's
benefits under, any of such plans, programs or arrangements, or the failure by
the Company to provide Employee with the number or paid vacation days to which
Employee was previously entitled;
(v) Subject to Section 15 of this Agreement, the failure by the Company to
obtain an express written assumption of the obligations of the company to
perform this Agreement by any successor (whether by purchase, merger or
otherwise) to all or a substantial portion of the business and/or assets of
the Company upon or prior to the effective date of any such succession;
(vi) The continued failure, for more than 15 days following written notice to
the Company, by the Company to prevent the Chairman of the Company from
becoming actively engaged in the management of the business affairs of the
Company (other than at the direction of Employee or, hereafter, at the
direction of the Board of Directors acting unanimously), from interfering with
Employee's discharge of his duties hereunder or from usurping Employee's
authority in a substantial way;
(vii) Employee's termination of employment following a Change in Control; or
(viii) Any purported termination of Employee's employment by the Company which
is not effected pursuant to the requirements of this Agreement.
(g) "Termination Date" shall mean the effective date as provided hereunder of
the termination of Employee's employment.
(h) "Without Cause", when used in connection with the termination of
Employee's employment by the Company, shall mean any termination of the
employment of Employee by the Company which is not a termination of employment
for Cause.
15) SUCCESSORS: BINDING AGREEMENT
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or a majority of the
business and/or assets of the Company, upon or prior to such succession, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would have been required to perform it if no
such succession had taken place. A copy of such assumption and agreement
shall be delivered to Employee promptly after its execution by the successor.
Failure of the Company to obtain such agreement upon or prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to benefits from the Company in the same amounts and on
the same terms as Employee would be entitled hereunder if Employee terminated
his employment for Good Reason. For purposes of the preceding sentence, the
date on which any such succession becomes effective shall be deemed the
Termination Date. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section15(a) or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of law.
(b) This Agreement is personal to Employee and Employee may not assign or
delegate any part of his rights or duties hereunder to any other person,
except that this Agreement shall inure to the benefit of and be enforceable by
Employee's legal representatives, executors, administrators, heirs and
beneficiaries.
16) SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application
of such provision to persons or circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby, and each
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
17) HEADINGS. The headings in this Agreement are inserted for convenience of
reference only and shall not in any way affect the meaning or interpretation
of this Agreement.
18) COUNTERPARTS. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the some instrument.
19) WAIVER. Neither any course of dealing nor any failure or neglect of
either party hereto in any instance to exercise any right, power or privilege
hereunder or under law shall constitute a waiver of such right, power or
privilege or of any other right power or privilege or of the same right, power
or privilege in any other instance. Without limiting the generality of the
foregoing, Employee's continued employment without objection shall not
constitute Employee's consent to, or a waiver of Employee's rights with
respect to, any circumstances constituting Good Reason. Any waivers by either
party hereto must be contained in a written instrument signed by the party to
be charged therewith, and, in the case of the Company, by its duly authorized
officer.
20) ENTIRE AGREEMENT. This instrument constitutes the entire agreement of the
parties in this matter and supersedes any other agreement between the parties,
oral or written, concerning the same subject matter.
21) AMENDMENT. This Agreement may be amended only by a writing which makes
express reference to this Agreement as the subject of such amendment and which
is signed by Employee and by a duly authorized officer of the Company.
Notwithstanding the foregoing, any amount payable to Employee under this
Agreement may be reduced or otherwise notified pursuant to the mutual
agreement of the Company and Employee.
22) GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without
reference to the conflict of laws rules of such State.
23) SURVIVAL. To the extent provided in this Agreement, this Agreement, and
the respective rights and obligations of the Company and Employee hereunder,
shall survive and remain full force and effect following the expiration of the
Employment Term and the termination of Employee's employment hereunder.
IN WITNESS WHEREOF, Employee and the Company have executed this Agreement as
of the date and year first above written
COMPANY:
WESTERN PACIFIC AIRLINES, INC.
By:
/S/ XXXXXX XXXXXXXX
Title:
CHAIRMAN
EMPLOYEE:
/S/ XXXXXX X. XXXXXX
