EXHIBIT 10.23.2
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made and entered
into September 27, 2000 by and between XxXxxxx Aircraft Holdings, Inc. (the
"Company") and Xxxxx Xxxxxx ("Executive") based on the following facts:
A. Executive is currently employed by the Company in the capacity
as President, Cabin Management Group and is a key executive of
the Company.
B. The Company desires to define the terms and conditions of any
termination of employment upon a Change of Control (as defined
herein) in the Company.
Based on the foregoing facts and circumstances and for good and
valuable consideration, receipt of which is hereby acknowledged, the Company and
Executive agree as follows:
1. TERM OF AGREEMENT. Except as otherwise provided herein, the
term of this Agreement shall commence effective the date
hereof and shall continue for two years (the "Term").
2. A. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE OF
CONTROL. In the event that (i) a Change of Control shall have
occurred during the term of this Agreement and while Executive
is employed by the Company and (ii) the Executive's employment
shall be involuntarily terminated for any reason on a date
which is less than one year after the date of the Change of
Control (whether during or after the term of this Agreement)
other than for Cause, death or disability or Executive shall
terminate his employment for Good Reason, then the Company
shall make the following payments to Executive within 15 days
following the date of such termination of employment (the
"Termination Date"), subject in each case to any applicable
payroll or other taxes required to be withheld.
(1) The Company shall pay Executive a lump sum amount in
cash equal to the sum of (a) Executive's monthly base
salary multiplied by a number equal to 24 minus the
number of whole months elapsed from the date of the
Change of Control to the Termination Date (the
"Multiplier") PROVIDED, HOWEVER, that in no event
shall the Multiplier be less than six, and (b)
Executive's average annual bonus including in such
average any such annual bonus earned (even though such
bonus may be paid in the year following the year in
which earned), (computed over the shorter of (x) the
period of Executive's employment by the Company or (y)
five calendar years each as measured to the day
immediately preceding the Termination Date) divided by
12 and multiplied by the Multiplier.
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(2) The Company shall pay Executive a lump sum amount in
cash equal to accrued but unpaid salary and bonus
through the Termination Date, and unpaid salary with
respect to any vacation days accrued but not taken as
of the Termination Date.
B. DEFINITIONS.
(1) As used in this Agreement, "Change of Control" shall
mean an event involving 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 amended
(the "Exchange Act"), assuming that such Schedule,
Regulation and Act applied to the Company, provided
that such a Change of Control shall be deemed to have
occurred at such time as: (i) any "person" (as that
term is used in Sections 13(d) and 14(d)(2) of the
Exchange Act) (other than an Excluded Person (as
defined below)) becomes, directly or indirectly, the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of securities representing 20% or more
of the combined voting power for election of members
of the Board of Directors of the then outstanding
voting securities of the Company or any successor of
the Company, excluding any person whose beneficial
ownership of securities of the Company or any
successor is obtained in a merger or consolidation not
included in paragraph (iii) below; (ii) during any
period of two consecutive years or less, individuals
who at the beginning of such period constituted the
Board of Directors of the Company cease, for any
reason, to constitute at least a majority of the
Board, unless the appointment, election or nomination
for election of each new member of the Board (other
than a director whose initial assumption of office is
in connection with an actual or threatened election
contest, including but not limited to a consent
solicitation, relating to the election of directors of
the Company) was approved by a vote of at least
two-thirds of the members of the Board of Directors
then still in office who were members of the Board at
the beginning of the period or whose appointment,
election or nomination was so approved since the
beginning of such period; (iii) there is consummated
any merger, consolidation or similar transaction to
which the Company is a party as a result of which the
persons who were equity holders of the Company
immediately prior to the effective date of the merger
or consolidation shall have beneficial ownership of
less than 50% of the combined voting power for
election of members of the Board of Directors (or
equivalent) of the surviving entity or its parent
following the effective date of such merger or
consolidation; (iv) any sale or other disposition (or
similar
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transaction) (in a single transaction or series of
related transactions) of (x) 50% or more of the assets
or earnings power of the Company or (y) business
operations which generated a majority of the
consolidated revenues (determined on the basis of the
Company's four most recently completed fiscal quarters
for which reports have been completed) of the Company
and its subsidiaries immediately prior thereto, other
than a sale, other disposition, or similar transaction
to an Excluded Person or to an entity of which
equityholders of the Company beneficially own at least
50% of the combined voting power; (v) any liquidation
of the Company. For purposes of this definition of
Change of Control, the term "Excluded Person" shall
mean and include (i) any corporation beneficially
owned by shareholders of the Company in substantially
the same proportion as their ownership of shares of
the Company and (ii) the Company.
(2) As used in this Agreement, "Good Reason" shall mean
the occurrence, following a Change of Control, of any
one of the following events without Executive's
consent: (i) the Company assigns Executive to any
duties substantially inconsistent with his position,
duties, responsibilities, status or reporting
responsibility with the Company immediately prior to
the Change of Control, or assigns Executive to a
position that does not provide Executive with
substantially the same or better compensation, status,
responsibilities and duties as Executive enjoyed
immediately prior to the Change of Control; (ii) the
Company reduces the amount of Executive's base salary
as in effect as of the date of the Change of Control
or as the same may be increased thereafter from time
to time, except for across-the-board salary reductions
similarly affecting all senior executives of the
Company; (iii) the Company fails to pay Executive an
annual bonus consistent with past practices and
bonuses consistent with past practices are paid to any
other senior executives of the Company; (iv) the
Company changes the location at which Executive is
employed by more than 50 miles from the location at
which Executive is employed as of the date of this
Agreement; or (v) the Company breaches this Agreement
in any material respect, including without limitation
failing to obtain a succession agreement from any
successor to assume and agree to perform this
Agreement.
(3) For Cause. As used in this Agreement, "Cause" shall
mean (i) any material act of dishonest constituting a
felony (of which Executive is convicted or pleads
guilty) which results or is intended to result
directly or indirectly in substantial gain or personal
enrichment to Executive at the expense of the Company,
or (ii) after notice of
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breach delivered to Executive specifying in reasonable
detail and a reasonable opportunity for Executive to
cure the breaches specified in the notice, the Board,
acting by a two thirds vote, after a meeting held for
the purpose of making such determination and after
reasonable notice to Executive and an opportunity for
him together with his counsel to be heard before the
Board, determines, in good faith, other than for
reasons of physical or mental illness, Executive
willfully and continually fails to substantially
perform his duties pursuant to this Agreement and such
failure results in demonstrable material injury to the
Company. The following shall not constitute Cause: (i)
Executive's bad judgment or negligence, (ii) any act
or omission by Executive without intent of gaining
therefrom directly or indirectly a profit to which
Executive was not legally entitled, (iii) any act or
omission by Executive with respect to which a
determination shall have been made that Executive met
the applicable standard of conduct prescribed for
indemnification or reimbursement of payment of
expenses under the By-Laws of the Company or the laws
of the State of Delaware as in effect at the time of
such act or omission.
3. MITIGATION. Executive is not required to seek other employment
or otherwise mitigate the amount of any payments to be made by
the Company pursuant to this Agreement.
4. ASSIGNMENT. Neither Company nor Executive shall have the right
to assign its respective rights pursuant to this Agreement.
The Company shall require any proposed 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, by agreement in form and substance
reasonably satisfactory to Executive, to expressly assume and
agree 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, concurrent with the
execution of a definitive agreement with the Company to engage
in such transaction.
5. This Agreement shall be binding on the inure to the benefit of
Executive and his heirs and the Company and any permitted
assignee. The Company shall not engage in any transaction,
including a merger or sale of assets unless, as a condition to
such transaction such successor organization assumes the
obligations of the Company pursuant to this Agreement.
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6. NOTICES.
If to Company: XxXxxxx Aircraft Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
If to Executive: Xxxxx Xxxxxx
_________________________________
_________________________________
Fax: ___________________________
7. FACSIMILE SIGNATURES, EXECUTION AND DELIVERY. This Agreement
shall be effective upon transmission of a signed facsimile by
one party to the other.
8. MISCELLANEOUS. This Agreement supersedes and makes void any
prior agreement between the parties and sets forth the entire
agreement and understanding of the parties hereto with respect
to the matters covered hereby, and may not otherwise be
amended or modified except by written agreement executed by
the Company and the Executive. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
This Agreement has been executed on the date specified in the first
paragraph.
XXXXXXX AIRCRAFT HOLDINGS, INC.
By:
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Authorized Signature
EXECUTIVE
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Xxxxx Xxxxxx
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