EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between
EXPRESSJET HOLDINGS, INC., a Delaware corporation ("Company"), and XXXXX X.
XXXXXXX ("Executive"), and is joined in solely for the purposes specified in
Section 6.13 by CONTINENTAL AIRLINES, INC., a Delaware corporation
("Continental").
WITNESSETH:
WHEREAS, Company's wholly owned subsidiary, ExpressJet Airlines, Inc.
(formerly Continental Express, Inc.), Continental and Executive are parties to
that certain Employment Agreement dated as of July 25, 2000 (the "Existing
Agreement"); and
WHEREAS, Continental and Executive are parties to certain other
agreements (collectively, the "Prior Agreements") pursuant to, and/or Executive
is otherwise participating under one or more of, the Continental Airlines, Inc.
Incentive Plan 2000, the Continental Airlines, Inc. 1998 Stock Incentive Plan,
the Continental Airlines, Inc. 1997 Stock Incentive Plan, the Continental
Airlines, Inc. 1994 Incentive Equity Plan, the Continental Airlines, Inc.
Officer Retention and Incentive Award Program, the Continental Airlines, Inc.
Management Bonus Program, the Continental Airlines, Inc. Long Term Incentive
Performance Award Program, and the Continental Airlines, Inc. Deferred
Compensation Plan (collectively, as amended, the "Continental Plans"); and
WHEREAS, Continental and Company are contemplating an initial public
offering of Company's common stock (the "Initial Public Offering"); and
WHEREAS, the Board of Directors of Company (the "Board of Directors"),
and the Human Resources Committee of the Board of Directors of Continental, deem
it advisable and in the best interests of Company, Continental and their
respective stockholders to assure management continuity for Company and,
consistent therewith, have authorized the execution, delivery and performance by
Company and Continental of this Agreement; and
WHEREAS, in connection therewith, the parties desire to enter into this
Agreement to, effective as of the Effective Date (as defined below) and subject
to the consummation of the Initial Public Offering, (i) replace and supersede
the Existing Agreement in its entirety, (ii) modify and, in some cases revoke,
the Prior Agreements, and (iii) set forth their agreements with respect to other
aspects of Executive's participation in the Continental Plans;
NOW THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Company, Continental (solely as
specified in Section 6.13) and Executive agree as follows:
ARTICLE I: EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Beginning as of the Effective Date,
Company agrees to employ Executive and Executive agrees to be employed by
Company, at will of both Company and Executive, subject to the terms and
conditions of this Agreement. For purposes of
this Agreement, the "Effective Date" shall mean the date of the consummation of
the Initial Public Offering.
1.2 POSITION. From and after the Effective Date, Executive shall be
employed in the position of Vice President and Chief Operating Officer of
Company and ExpressJet Airlines, Inc. and/or any successor to substantially all
of the assets of ExpressJet Airlines, Inc. (ExpressJet Airlines, Inc. and any
such successor shall be collectively referred to herein as "ExpressJet"), or
Company shall employ, or cause a subsidiary of Company to employ, Executive in
such other position or positions as the parties may mutually agree.
1.3 DUTIES AND SERVICES. Executive agrees to serve in the positions
referred to in paragraph 1.2 and to perform diligently and to the best of his
abilities the duties and services appertaining to such offices as determined by
Company or ExpressJet, as applicable, as well as such additional duties and
services which Executive from time to time may be reasonably directed to perform
by Company or ExpressJet, as applicable.
ARTICLE II: AT-WILL EMPLOYMENT RELATIONSHIP
2.1 EMPLOYMENT AT-WILL. The employment relationship between Executive
and Company is at-will. Each of Executive and Company shall have the right to
terminate the employment relationship at any time and for any reason whatsoever,
with or without cause, and without any liability or obligation except as may be
expressly provided in this Agreement.
2.2 NOTICE OF TERMINATION. If Company or Executive desires to terminate
Executive's employment hereunder, it or he shall do so by giving written notice
to the other party that it or he has elected to terminate Executive's employment
hereunder and stating the effective date and reason for such termination,
provided that no such action shall alter or amend any other provisions hereof or
rights arising hereunder.
ARTICLE III: COMPENSATION AND BENEFITS
3.1 BASE SALARY. During the period of this Agreement, Executive shall
receive a minimum annual base salary equal to the greater of (i) $200,000.00 or
(ii) such amount as Company and Executive mutually may agree upon from time to
time. Executive's annual base salary shall be paid in equal installments in
accordance with Company's standard policy regarding payment of compensation to
executives but no less frequently than semimonthly.
3.2 BONUS PROGRAMS. Company shall pay Executive a supplemental bonus
for 2002 in an amount equal to $155,000.00 (which amount shall be paid to
Executive as soon as administratively feasible after the Effective Date).
Company or ExpressJet shall establish a management bonus program (the
"Management Bonus Program") for the fiscal year beginning on January 1, 2002,
subject to terms and conditions to be determined in the sole discretion of the
Board of Directors or the Human Resources Committee of the Board of Directors.
3.3 OTHER COMPANY BENEFITS. During his employment hereunder, Executive
and, to the extent applicable, Executive's family, dependents and beneficiaries,
shall be allowed to participate in all benefits, plans, and programs, including
improvements or modifications of the same, which are now, or may hereafter be,
available to similarly situated employees of Company
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or ExpressJet. Such benefits, plans and programs may include, without
limitation, profit sharing plan, thrift plan, annual physical examinations,
health insurance or health care plan, life insurance, disability insurance,
pension plan, pass privileges on Continental or ExpressJet flights, flight
privileges and the like. Company shall not, however, by reason of this paragraph
be obligated to institute, maintain, or refrain from changing, amending or
discontinuing, any such benefit plan or program, so long as such changes are
similarly applicable to similarly situated employees generally; provided,
however, that Company shall not change, amend or discontinue Executive's Flight
Privileges (as defined below) without his prior written consent.
3.4 CONTINENTAL AIRLINES, INC. LONG TERM INCENTIVE PERFORMANCE AWARD
PROGRAM. Notwithstanding any provision in the Continental Airlines, Inc. Long
Term Incentive Performance Award Program (the "LTIP") or any award notice issued
thereunder to the contrary, (a) as of the Effective Date, Executive shall cease
participation in the LTIP, and (b) Executive shall forfeit and receive no
payments with respect to awards under the LTIP for which the Performance Period
has not ended on or before the Effective Date; provided, however, that in the
event Executive experiences a termination of employment on or before the
Effective Date, the terms of the LTIP and any award notice issued to Executive
thereunder shall control. Company shall be liable for any amounts owed to
Executive under this paragraph 3.4, and Continental shall have no liability with
respect to such amounts. Executive hereby waives any and all rights to notices
or any other actions necessary to terminate Executive's rights and participation
under the LTIP in accordance with the foregoing provisions of this
paragraph 3.4.
3.5 CONTINENTAL AIRLINES, INC. MANAGEMENT BONUS PROGRAM.
Notwithstanding any provision of the Continental Airlines, Inc. Management Bonus
Program or any other bonus program adopted by the Human Resources Committee of
the Board of Directors of Continental for 2002 (collectively, the "Continental
Bonus Programs") or any award notice issued thereunder to the contrary, (a) as
of the Effective Date, Executive shall cease participation in all Continental
Bonus Programs, and (b) Executive shall forfeit and receive no payments with
respect to awards under or Executive's participation in the Continental Bonus
Programs with respect to any period beginning after December 31, 2001.
Notwithstanding the foregoing, in the event Executive experiences a termination
of employment on or before the Effective Date, the terms of the applicable
Continental Bonus Programs shall control. Company shall be liable for any
amounts owed to Executive under this paragraph 3.5, and Continental shall have
no liability with respect to such amounts. Executive hereby waives any and all
rights to notices or any other actions necessary to terminate Executive's
participation under the Continental Bonus Programs in accordance with the
foregoing provisions of this paragraph 3.5.
3.6 CONTINENTAL AIRLINES, INC. OFFICER RETENTION AND INCENTIVE AWARD
PROGRAM. Notwithstanding any provision of the Continental Airlines, Inc. Officer
Retention and Incentive Award Program (the "Retention Program"), any award
notice thereunder, award agreement or any other prior agreement between
Continental and Executive, plan document or any other document to the contrary,
Executive and Continental acknowledge and agree that (a) Executive shall be
considered for all purposes of the Retention Program to have incurred a
"Termination of Service" (as such term is defined in the Retention Program) as
of the Effective Date by reason of Executive's voluntary termination of his
employment and (b) Executive shall not be considered as either an "Eligible
Employee" or an "Officer" (as such terms are defined in the Retention Program)
from and after the Effective Date; provided, however, that in the event
Executive
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experiences a Termination of Service on or before the Effective Date, the terms
of the Retention Program and any award notices issued to Executive thereunder
shall control. Executive hereby waives any and all rights to notices with
respect to the foregoing matters in connection with the Retention Program.
Continental shall retain liability for payments to Executive with respect to his
awards under the Retention Program, and Company and ExpressJet shall have no
liability with respect to such payments.
3.7 PARTICIPATION IN CONTINENTAL AIRLINES, INC. DEFERRED COMPENSATION
PLAN. Executive's participation in the Continental Airlines, Inc. Deferred
Compensation Plan (the "Deferred Compensation Plan") shall cease effective as of
the earlier of Executive's termination of employment with Company or the day
immediately preceding the Effective Date and, as of the date of such cessation
of participation, Executive shall be treated as having incurred a "Termination
of Service" (as defined in the Deferred Compensation Plan) for purposes of the
Deferred Compensation Plan. Executive's benefits under the Deferred Compensation
Plan shall be paid by Company or ExpressJet to the extent, if any, that the
subtrust established in connection with ExpressJet's participation in the
Deferred Compensation Plan does not have sufficient funds to pay such benefits.
Continental shall have no liability with respect to the payment of such
benefits. Executive hereby waives all rights (including, but not limited to, the
right to notice of cessation of participation pursuant to Section 2.2 of such
plan) under the Deferred Compensation Plan or any other agreement that would be
contrary to the preceding provisions of this paragraph 3.7.
ARTICLE IV: EFFECT OF TERMINATION
4.1 EFFECT ON COMPENSATION. Upon termination of the employment
relationship by either Executive or Company, regardless of the reason therefor,
all compensation and all benefits to Executive hereunder shall terminate
contemporaneously with termination of his employment, except that (A) if such
termination shall constitute an Involuntary Termination (as such term is defined
in paragraph 4.4), then, subject to the provisions of paragraphs 4.2 and 4.3 and
Article V, (i) Continental and Company shall provide Executive with Flight
Privileges (as such term is defined in paragraph 4.4) for the remainder of
Executive's lifetime, (ii) Company shall provide Executive and his eligible
dependents with Continuation Coverage (as such term is defined in paragraph 4.4)
for the Severance Period (as such term is defined in paragraph 4.4), and (iii)
Company shall pay Executive the Monthly Severance Amount (as such term is
defined in paragraph 4.4) each month during the Severance Period, or (B) if such
termination is a result of Executive's retirement under Company's retirement
policy or program generally applicable to similarly situated employees of
Company, then Continental and Company shall, subject to the provisions of
paragraph 4.3 and Article V, provide Executive with Flight Privileges for the
remainder of Executive's lifetime. No remuneration or wages earned by Executive
during or with respect to the Severance Period (whether earned as an employee,
independent contractor, sole proprietor, joint venturer, or otherwise) shall
reduce Company's obligation to pay the Monthly Severance Amount each month
during the Severance Period. Company may set off any amounts owed by Executive
to Company or any of its affiliates against any obligation to pay the Monthly
Severance Amount.
4.2 LIQUIDATED DAMAGES. In light of the difficulties in estimating the
damages to Executive in the event Executive's employment is subject to an
Involuntary Termination,
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Company and Executive hereby agree (for themselves and for the express and
directly enforceable benefit of Continental and Company's affiliates) that the
payments and benefits, if any, to be received by Executive pursuant to paragraph
4.1 shall be received by Executive as liquidated damages. Payment of the
compensation and benefits to Executive pursuant to paragraph 4.1 shall be offset
against any amounts to which Executive may otherwise be entitled under any and
all severance plans and policies maintained by Company or its affiliates.
4.3 CERTAIN POST-TERMINATION OBLIGATIONS. All payments and benefits to
Executive hereunder shall be subject to Executive's compliance with the
following provisions for one full year after the termination of Executive's
employment hereunder:
(i) Executive shall, upon reasonable notice, furnish such
information and proper assistance to Company, its affiliates and
Continental as may reasonably be required in connection with any
litigation in which it or any of its affiliates or Continental is, or
may become, a party;
(ii) Executive shall not discuss with any other employee of
Company or an affiliate of Company the formation or operations of any
business intended to compete with Company or its affiliates, and will
not solicit or cause to be solicited any employee of Company or its
affiliates to leave the employ of Company or its affiliates;
(iii) any public statements made by Executive concerning
Company or its affiliates or Continental, or their officers, directors,
or employees shall be submitted in writing for prior approval by
Company's or Continental's (as appropriate) public relations and legal
departments, and Executive shall not make any such public statements
which are not so approved; and
(iv) upon termination of employment, Executive shall (a)
promptly return to Company all property (including all keys, passes,
credit cards, documents, memoranda and computer hardware and software)
of Company or any of its affiliates or Continental then in his
possession or control, and (b) in the same manner as if he were still
employed by Company, hold in confidence, and not disclose to any
person, all business plans, trade secrets, and confidential or
proprietary information of Company or any of its affiliates or
Continental, and shall not use any such plans, secrets or information
in a manner which is detrimental to Company or its affiliates or
Continental.
If Executive fails to comply with the above obligations, Company may
cease making any and all payments hereunder, and Company, Company's affiliates
and Continental may cease extending benefits to Executive and may recover by
appropriate action instituted in any court of competent jurisdiction any
severance payments theretofore paid to Executive. Executive agrees that the
obligations of Executive contained in this paragraph 4.3 are in addition to any
rights Company, Company's affiliates or Continental may have in law or at
equity, and that it is not possible to measure in money the damages which may be
suffered by Company, Company's affiliates or Continental if Executive breaches
any of the provisions of this paragraph 4.3. Therefore, if Executive breaches
any of the provisions of this paragraph 4.3, each of Company, Company's
affiliates and Continental shall be entitled to an injunction restraining
Executive from violating such provisions. If Company, any affiliate of Company
or Continental shall
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institute any action or proceeding to enforce any such obligations, Executive
hereby irrevocably waives the claim or defense that Company, an affiliate of
Company or Continental has an adequate remedy at law and agrees not to assert in
any such action or proceeding such claim or defense. The foregoing shall not
prejudice Company's (or any of its affiliates') or Continental's right to
require Executive to account for and pay over to Company, a Company affiliate or
Continental, and Executive agrees to account for and pay over, the compensation,
profits, monies, accruals and other benefits derived or received by Executive as
a result of any transaction or occurrence constituting a breach of this
paragraph 4.3. The duration of the obligations of Executive under this paragraph
4.3 shall be extended by and for the term of any period during which Executive
is in breach of this paragraph 4.3.
4.4 CERTAIN DEFINITIONS AND ADDITIONAL TERMS. As used herein, the
following capitalized terms shall have the meanings assigned below:
(i) "Continuation Coverage" shall mean the continued coverage
of Executive and his eligible dependents under the welfare benefit
plans available to similarly situated employees of Company who have not
terminated employment (or the provision of equivalent benefits),
including, without limitation, medical, health, dental, life insurance,
disability, vision care, accidental death and dismemberment, and
prescription drug, at no greater cost to Executive than that applicable
to a similarly situated Company employee who has not terminated
employment; provided, however, that (1) subject to clause (2) below,
the coverage under a particular welfare benefit plan (or the receipt of
equivalent benefits) shall terminate upon Executive's receipt of
comparable benefits from a subsequent employer and (2) if Executive
(and/or his eligible dependents) would have been entitled to retiree
coverage under a particular welfare benefit plan had he voluntarily
retired on the date of his Involuntary Termination, then such coverage
shall be continued as provided in such plan upon the expiration of the
Severance Period. Notwithstanding any provision in this Article IV to
the contrary, to the extent permitted by applicable law, Executive's
entitlement to any benefit continuation pursuant to Section 601 et.
seq. of the Employee Retirement Income Security Act of 1974, as
amended, shall commence at the end of the period of, and shall not be
reduced by the provision of, any applicable Continuation Coverage;
(ii) "Flight Privileges" shall mean flight privileges on each
airline operated by Company, Continental or any of their respective
affiliates or any successor or successors thereto (the "System"),
consisting of space available flight passes for Executive and
Executive's eligible family members (as such eligibility was in effect
on May 18, 1999), a Universal Air Travel Plan (UATP) card (or, in the
event of discontinuance of the UATP program, a similar charge card
permitting the purchase of air travel through direct billing to
Company, Continental, ExpressJet or any successor or successors thereto
(a "Similar Card")) in Executive's name for charging on an annual basis
up to the applicable Annual Travel Limit (as hereinafter defined) with
respect to such year in value (valued identically to the calculation of
imputed income resulting from such flight privileges described below)
of flights (in any fare class) on the System for Executive, Executive's
spouse, Executive's family and significant others as determined by
Executive, Platinum Elite OnePass Cards (or similar highest category
successor frequent flyer cards) in Executive's and Executive's spouse's
names for use on the System, a membership for
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Executive and Executive's spouse in Continental's Presidents Club (or
any successor program maintained in the System), and payment by Company
to Executive (while an officer of Company) of an annual amount (not to
exceed in any year the Annual Gross Up Limit (as hereinafter defined)
with respect to such year) sufficient to pay, on an after tax basis
(i.e., after the payment by Executive of all taxes on such amount), the
U.S. federal, state and local income taxes on imputed income resulting
from such flights (such imputed income to be calculated during the term
of such Flight Privileges at the lowest published or unpublished fare
(i.e., 21 day advance purchase coach fare, lowest negotiated
consolidator net fare, or other lowest available fare) for the
applicable itinerary (or similar flights on or around the date of such
flight), regardless of the actual fare class booked or flown, or as
otherwise required by law) or resulting from any other flight
privileges extended to Executive as a result of Executive's service as
an executive of Company;
(iii) "Involuntary Termination" shall mean any termination of
Executive's employment with Company which does not result from
Executive's (A) resignation, (B) death, (C) gross negligence or willful
misconduct in performance of the duties and services required of
Executive pursuant to this Agreement, or failure to perform Executive's
duties hereunder after written notice of such failure has been
delivered by Company to Executive and Executive has not cured such
failure within 10 days of receipt of such notice, (D) breach of any
provision of this Agreement, (E) becoming incapacitated by accident,
sickness or other circumstance which renders Executive mentally or
physically incapable of performing the duties and services required of
Executive hereunder on a full-time basis for a period of at least 90
days, (F) drug or alcohol abuse by Executive which materially adversely
affects Executive's ability to perform his duties hereunder, or (F)
retirement under the retirement policy or program generally applicable
to similarly situated employees of Company;
(iv) "Monthly Severance Amount" shall mean an amount equal to
one-twelfth of Executive's annual base salary pursuant to paragraph 3.1
in effect immediately prior to Executive's Involuntary Termination; and
(v) "Severance Period" shall mean the period commencing on the
date of Executive's Involuntary Termination and continuing for 18
months.
As used for purposes of Flight Privileges, with respect to any year,
"Annual Travel Limit" shall mean an amount (initially $25,000), which amount has
been and shall be adjusted (i) annually (beginning with the year 2000) by
multiplying such amount by a fraction, the numerator of which shall be
Continental's average fare per revenue passenger for its jet operations
(excluding regional jets) with respect to the applicable year as reported in its
Annual Report on Form 10-K (or, if not so reported, as determined by
Continental's independent auditors) (the "Average Fare") for such year, and the
denominator of which shall be the Average Fare for the prior year, (ii) annually
to add thereto any portion of such amount unused since the year 1999, and (iii)
after adjustments described in clauses (i) and (ii) above, automatically upon
any change in the valuation methodology for imputed income from flights (as
compared with the valuation methodology for imputed income from flights used by
Continental as of May 18, 1999), so as to preserve the benefit of $25,000
annually (adjusted in accordance with clauses (i) and (ii) above)
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of flights relative to the valuations resulting from the valuation methodology
used by Continental as of May 18, 1999 (e.g., if a change in the valuation
methodology results, on average, in such flights being valued 15% higher than
the valuation that would result using the valuation methodology used by
Continental as of May 18, 1999, then the Annual Travel Limit would be increased
by 15% to $28,750, assuming no other adjustments pursuant to clauses (i) and
(ii) above). In determining any adjustment pursuant to clause (iii) above,
Continental shall be entitled to rely on a good faith calculation performed by
its independent auditors based on a statistically significant random sampling of
flight valuations compared with the applicable prior valuations of identical
flights, which calculation (and the basis for any adjustments pursuant to
clauses (i) or (ii) above) will be provided to Executive upon request. Company
will promptly notify Executive in writing of any adjustments to the Annual
Travel Limit described in this paragraph.
As used for purposes of Flight Privileges, with respect to any year,
the term "Annual Gross Up Limit" shall mean an amount (initially $7,500), which
amount has been and shall be adjusted (i) annually (beginning with the year
2000) by multiplying such amount by a fraction, the numerator of which shall be
the Average Fare for such year, and the denominator of which shall be the
Average Fare for the prior year, (ii) annually to add thereto any portion of
such amount unused since the year 1999, and (iii) after adjustments described in
clauses (i) and (ii) above, automatically upon any change in the valuation
methodology for imputed income from flights (as compared with the valuation
methodology for imputed income from flights used by Continental as of May 18,
1999), so as to preserve the benefit of $7,500 annually (adjusted in accordance
with clauses (i) and (ii) above) of tax gross up relative to the valuations
resulting from the valuation methodology used by Continental as of May 18, 1999
(e.g., if a change in the valuation methodology results, on average, in flights
being valued 15% higher than the valuation that would result using the valuation
methodology used by Continental as of May 18, 1999, then the Annual Gross Up
Limit would be increased by 15% to $8,625, assuming no other adjustments
pursuant to clauses (i) and (ii) above). In determining any adjustment pursuant
to clause (iii) above, Continental shall be entitled to rely on a good faith
calculation performed by its independent auditors based on a statistically
significant random sampling of flight valuations compared with the applicable
prior valuations of identical flights, which calculation (and the basis for any
adjustments pursuant to clauses (i) or (ii) above) will be provided to Executive
upon request. Company will promptly notify Executive in writing of any
adjustments to the Annual Gross Up Limit described in this paragraph.
As used for purposes of Flight Privileges, a year may consist of twelve
consecutive months other than a calendar year, it being Continental's practice
as of May 18, 1999 for purposes of Flight Privileges for a year to commence on
December 1 and end on the following November 30 (for example, the twelve-month
period from December 1, 1998 to November 30, 1999 is considered the year 1999
for purposes of Flight Privileges); provided that all calculations for purposes
of clause (i) in the prior two paragraphs shall be with respect to fiscal years
of Continental.
As used for purposes of Flight Privileges, the term "affiliates" (a)
when used with respect to Company, means any entity controlled by, controlling,
or under common control with Company, and (b) when used with respect to
Continental, means any entity controlled by, controlling, or under common
control with Continental. For these purposes control of an entity
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shall require the direct or indirect ownership of a majority of the outstanding
capital stock of such entity.
No tickets issued on the System in connection with the Flight
Privileges may be purchased other than directly from Company, Continental,
ExpressJet or their respective successor or successors (i.e., no travel agent or
other fee or commission based distributor may be used), nor may any such tickets
be sold or transferred by Executive or any other person, nor may any such
tickets be used by any person other than the person in whose name the ticket is
issued. Executive agrees that, after receipt of an invoice or other accounting
statement therefor, he will promptly (and in any event within 45 days after
receipt of such invoice or other accounting statement) reimburse Company,
ExpressJet or Continental, as appropriate, for all charges on his UATP card (or
Similar Card) which are not for flights on the System and which are not
otherwise reimbursable to Executive under the applicable policies of Company for
reimbursement of business expenses of officers of Company, or which are for
tickets in excess of the applicable Annual Travel Limit. Executive agrees that
the credit availability under Executive's UATP card (or Similar Card) may be
suspended if Executive does not timely reimburse Company, ExpressJet or
Continental, as appropriate, as described in the foregoing sentence or if
Executive exceeds the applicable Annual Travel Limit with respect to a year;
provided, that, immediately upon Company's, ExpressJet's or Continental's, as
appropriate, receipt of Executive's reimbursement in full (or, in the case of
exceeding the applicable Annual Travel Limit, beginning the next following year
and after such reimbursement), the credit availability under Executive's UATP
card (or Similar Card) will be restored.
The sole cost to Executive of flights on the System pursuant to use of
Executive's Flight Privileges will be the imputed income with respect to flights
on the System charged on Executive's UATP card (or Similar Card), calculated
throughout the term of Executive's Flight Privileges at the lowest published or
unpublished fare (i.e., 21 day advance purchase coach fare, lowest negotiated
consolidator net fare or other lowest available fare) for the applicable
itinerary (or similar flights on or around the date of such flight), regardless
of the actual fare class booked or flown, or as otherwise required by law, and
reported to Executive as required by applicable law. With respect to any period
for which Company is obligated to provide the tax gross up described above,
Executive will provide to Company, upon request, a calculation or other evidence
of Executive's marginal tax rate sufficient to permit Company to calculate
accurately the amount to be paid to Executive.
Executive will be issued a UATP card (or Similar Card), Platinum Elite
OnePass Cards (or similar highest category frequent flyer cards) in Executive's
and Executive's spouse's names, a membership card in Continental's Presidents
Club (or any successor program maintained in the System) for Executive and
Executive's spouse, and an appropriate flight pass identification card, each
valid at all times during the term of Executive's Flight Privileges.
ARTICLE V: NONCOMPETITION OBLIGATIONS
5.1 IN GENERAL. As part of the consideration for the compensation to be
paid under this Agreement, to protect the trade secrets and confidential
information of Company and its affiliates that have been and will in the future
be disclosed or entrusted to Executive, the business opportunities of Company
and its affiliates that have been and will in the future be disclosed or
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entrusted to Executive, the relationships with customers of Company and its
affiliates that have been and will in the future be developed in Executive, the
special training and knowledge relevant to Executive's employment
responsibilities and duties, or the business goodwill of Company and its
affiliates that has been and will in the future be developed in Executive, and
as an additional incentive for Company to enter into this Agreement, Company and
Executive agree to the non-competition obligations set forth in this Agreement.
Executive will not, directly or indirectly for Executive or for others, in any
geographic area or market where Company or any of its affiliates are conducting
any business or have during the previous 12 months conducted such business:
(a) engage in any Competitive Business (as defined below);
(b) render advice or services to, or otherwise assist, any
other person, association, or entity who is engaged, directly or indirectly, in
any Competitive Business with respect to such Competitive Business; or
(c) induce any employee of Company or any affiliate of Company
to terminate his or her employment with Company or such affiliate, or hire or
assist in the hiring of any such employee by any person, association, or entity
not affiliated with Company.
For purposes of this paragraph 5.1, the term "Competitive Business" shall mean
the business of owning, acquiring, establishing, operating, and maintaining a
regional airline in the United States. Notwithstanding the foregoing, the
noncompetition obligations set forth in this paragraph shall not be considered
violated if Executive becomes an employee, consultant, advisor, or member of the
board of directors of a major, mainline airline; provided however, that, if such
airline also engages in a Competitive Business, then this exception shall apply
only if Executive's primary duties, and the principal portion of Executive's
working time, are related to the business of such airline other than the
Competitive Business.
5.2 DURATION OF NONCOMPETITION OBLIGATIONS. The noncompetition
obligations set forth in paragraph 5.1 shall extend until the date that is 18
months after the date of Executive's termination of employment with Company for
any reason whatsoever.
5.3 REFORMATION. Company and Executive agree that the foregoing
restrictions are reasonable under the circumstances and that any breach of the
covenants contained in this Article V would cause irreparable injury to Company.
Executive understands that the foregoing restrictions may limit Executive's
ability to engage in certain businesses anywhere in the United States during the
period provided for above, but acknowledges that Executive will receive
sufficiently high remuneration and other benefits under this Agreement to
justify such restriction. Further, Executive acknowledges that his skills are
such that he can be gainfully employed in non-competitive employment, and that
the agreement not to compete will in no way prevent him from earning a living.
Nevertheless, if any of the aforesaid restrictions are found by a court of
competent jurisdiction to be unreasonable, or overly broad as to geographic area
or time, or otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by the court making such determination so as to
be reasonable and enforceable and, as so modified, to be fully enforced. By
agreeing to this contractual modification prospectively at this time, Company
and Executive intend to make this provision enforceable under the law or laws of
all
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applicable States so that the entire agreement not to compete and this Agreement
as prospectively modified shall remain in full force and effect and shall not be
rendered void or illegal. Such modification shall not affect the payments made
to Executive under this Agreement.
5.4 ENFORCEMENT AND REMEDIES. Executive acknowledges that money damages
would not be sufficient remedy for any breach of this Article V by Executive,
and Company shall be entitled to enforce the provisions of this Article V by
terminating any payments then owing to Executive under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article V, but shall be in addition to all remedies available
at law or in equity to Company, including, without limitation, the recovery of
damages from Executive and Executive's agents involved in such breach.
ARTICLE VI: MISCELLANEOUS
6.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO COMPANY TO: ExpressJet Holdings, Inc.
0000 Xxxxx Xxxxxx, Xxxx. XXXXX
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
IF TO CONTINENTAL TO: Continental Airlines, Inc.
0000 Xxxxx Xxxxxx, Xxxx. XXXXX
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
IF TO EXECUTIVE TO: Xxxxx X. Xxxxxxx
________________________
________________________
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
6.2 APPLICABLE LAW. THIS CONTRACT IS ENTERED INTO UNDER, AND SHALL BE
GOVERNED FOR ALL PURPOSES BY, THE LAWS OF THE STATE OF TEXAS.
6.3 NO WAIVER. No failure by either party hereto at any time to give
notice to any breach by the other party of, or to require 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.
6.4 SEVERABILITY. If a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the invalidity
or unenforceability of that
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provision shall not affect the validity or enforceability of any other provision
of this Agreement, and all other provisions shall remain in full force and
effect.
6.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
6.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. Company and
Continental may withhold from any benefits and payment made pursuant to this
Agreement all federal, state, city and other taxes as may be required pursuant
to any law or governmental regulation or ruling and all other normal employee
deductions made with respect to Company's or Continental's employees generally.
6.7 HEADINGS; AFFILIATES. The paragraph headings have been inserted for
purposes of convenience and shall not be used for interpretive purposes. Except
as otherwise provided herein, for purposes of this Agreement, the term
"affiliate," as applied to an entity (the "First Entity"), means an entity who
directly, or indirectly through one or more intermediaries, is controlled by, is
controlling, or is under common control with the First Entity.
6.8 GENDER AND PLURALS. Wherever the context so requires, the masculine
gender includes the feminine or neuter, and the singular number includes the
plural and conversely.
6.9 SUCCESSORS. This Agreement shall be binding (in the case of
Continental, solely as provided in Section 6.13 hereof) upon and inure to the
benefit of Company, Continental and their respective successors, and in each
case successor shall include, without limitation, any person, association, or
entity which may hereafter acquire or succeed to all or substantially all of the
business or assets of Company or Continental (as applicable) by any means
whether direct or indirect, by purchase, merger, consolidation, or otherwise.
Except as provided in the preceding sentence, this Agreement, and the rights and
obligations of the parties hereunder, are personal and neither this Agreement,
nor any right, benefit or obligation of any party hereto, shall be subject to
voluntary or involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the other
parties.
6.10 EFFECT OF TERMINATION. Termination of the employment relationship
under this Agreement shall not affect any right or obligation of any party which
is accrued or vested prior to or upon such termination.
6.11 ENTIRE AGREEMENT. Except as provided in (i) the benefits, plans,
and programs referenced in paragraph 3.3 and any awards under Company's stock
incentive plans, the Management Bonus Program or similar plans or programs
adopted by Company or ExpressJet after the Effective Date and (ii) separate
agreements governing Executive's flight privileges relating to other airlines,
this Agreement, as of the Effective Date, will constitute the entire agreement
of the parties with regard to the subject matter hereof, and will contain all
the covenants, promises, representations, warranties and agreements between the
parties with respect to employment of Executive by Company. Effective as of the
Effective Date, the Existing Agreement is hereby terminated and without any
further force or effect, each Prior Agreement is modified and/or revoked as set
forth herein, and Executive's rights under the Continental Plans
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are modified as provided herein. Any modification of this Agreement shall be
effective only if it is in writing and signed by the party to be charged.
Notwithstanding any provision in this Agreement to the contrary, if the
Effective Date does not occur on or before July 31, 2002, then this Agreement
shall be void ab initio.
6.12 DEEMED RESIGNATIONS. Any termination of Executive's employment
shall constitute an automatic resignation of Executive as an officer of Company
and each affiliate of Company, and an automatic resignation of Executive from
the Board of Directors (if applicable) and from the board of directors of any
affiliate of Company and from the board of directors or similar governing body
of any corporation, limited liability company or other entity in which Company
or any affiliate holds an equity interest and with respect to which board or
similar governing body Executive serves as Company's or such affiliate's
designee or other representative.
6.13 JOINDER. Continental is a party to this Agreement solely with
respect to (a) the benefits to Continental described in the provisions of
paragraphs 3.4, 3.5, 3.6, 3.7, and 6.6, and (b) the obligations of Continental
relating to Flight Privileges as set forth in Article IV and as provided in
paragraph 3.3. In addition, any provision of this Agreement that is for the
benefit of or otherwise relates to Continental shall be directly enforceable by
Continental.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the ____ day of ___________, 2002, to be effective as of the Effective Date.
EXPRESSJET HOLDINGS, INC.
By:
----------------------------------------
Xxxxx X. Xxxx
President and
Chief Executive Officer
"EXECUTIVE"
-------------------------------------------
Xxxxx X. Xxxxxxx
CONTINENTAL AIRLINES, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President - Human
Resources and Labor Relations
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