EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between EXPRESSJET
HOLDINGS, INC., a Delaware corporation ("Company"), and XXXXX X. XXXX
("Executive"), and is joined in solely for the purposes specified in Section
6.14 by CONTINENTAL AIRLINES, INC., a Delaware corporation ("Continental").
WITNESSETH:
WHEREAS, 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.
Executive Bonus Performance Award 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 6.14) and Executive agree as follows:
ARTICLE I: EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT; EFFECTIVE DATE. Company agrees to employ Executive and
Executive agrees to be employed by Company, beginning as of the Effective Date
and continuing for the period of time set forth in Article II of this Agreement,
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 President and Chief Executive Officer of Company and
Company's wholly owned subsidiary 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 set forth in
the Bylaws of Company or ExpressJet, as applicable, in effect on the Effective
Date, as well as such additional duties and services appropriate to such offices
which the parties mutually may agree upon from time to time.
ARTICLE II: TERM AND TERMINATION OF EMPLOYMENT
2.1 TERM. Unless sooner terminated pursuant to other provisions hereof,
Company agrees to employ Executive for a three-year period beginning on the
Effective Date. Said term of employment shall be extended automatically for an
additional successive three-year period as of the third anniversary of the
Effective Date and as of the last day of each successive three-year period of
time thereafter that this Agreement is in effect; provided, however, that if,
prior to the date which is six months before the last day of any such three-year
term of employment, Company or Executive shall give written notice to the other
that no such automatic extension shall occur, then Executive's employment shall
terminate on the last day of the three year term of employment during which such
notice is given.
2.2 COMPANY'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Company, acting pursuant to an express resolution of the Board of
Directors, shall have the right to terminate Executive's employment under this
Agreement at any time for any of the following reasons:
(i) upon Executive's death;
(ii) upon Executive's becoming incapacitated for a period of at least
180 days by accident, sickness or other circumstance which renders him
mentally or physically incapable of performing the material duties and
services required of him hereunder on a full-time basis during such period;
(iii) for cause, which for purposes of this Agreement shall mean
Executive's gross negligence or willful misconduct in the performance of,
or Executive's abuse of alcohol or drugs rendering him unable to perform,
the material duties and services required of him pursuant to this
Agreement;
(iv) for Executive's material breach of any provision of this
Agreement which, if correctable, remains uncorrected for 30 days following
written notice to Executive by Company of such breach; or
(v) for any other reason whatsoever, in the sole discretion of the
Board of Directors.
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2.3 EXECUTIVE'S RIGHT TO TERMINATE. Notwithstanding the provisions of
paragraph 2.1, Executive shall have the right to terminate his employment under
this Agreement at any time for any of the following reasons:
(i) the assignment to Executive by the Board of Directors or the Human
Resources Committee of the Board of Directors (the "HR Committee") or by
the Board of Directors of ExpressJet of duties materially inconsistent with
the duties associated with the positions described in paragraph 1.2 as such
duties are constituted as of the Effective Date;
(ii) a material diminution in nature or scope of Executive's
authority, responsibilities, or title from those applicable to him as of
the Effective Date;
(iii) the occurrence of material acts or conduct on the part of
Company or ExpressJet or their respective officers or representatives which
prevent Executive from performing his duties and responsibilities pursuant
to this Agreement;
(iv) Company or ExpressJet requiring Executive to be permanently based
anywhere outside a major urban center in Texas;
(v) the taking of any action by Company or ExpressJet that would
materially adversely affect the corporate amenities enjoyed by Executive on
the Effective Date;
(vi) a material breach by Company of any provision of this Agreement
which, if correctable, remains uncorrected for 30 days following written
notice of such breach by Executive to Company; or
(vii) for any other reason whatsoever, in the sole discretion of
Executive.
2.4 NOTICE OF TERMINATION. If Company or Executive desires to terminate
Executive's employment hereunder at any time prior to expiration of the term of
employment as provided in paragraph 2.1, 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) $400,000.00 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 (the "2002 Supplemental Bonus") in an amount equal to $580,000.00 (which
amount shall be paid to Executive as soon as administratively feasible after the
Effective Date). Executive shall participate in each cash bonus program
maintained by Company or ExpressJet on and after
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January 1, 2002 at a level which is not less than the maximum participation
level made available to any other executive of Company (determined without
regard to period of service or other criteria that might otherwise be necessary
to entitle Executive to such level of participation). Without limiting the scope
of the preceding sentence, 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 HR Committee.
3.3 VACATION AND SICK LEAVE. During each year of his employment, Executive
shall be entitled to vacation and sick leave benefits equal to the maximum
available to any Company executive, determined without regard to the period of
service that might otherwise be necessary to entitle Executive to such vacation
or sick leave under standard Company policy.
3.4 OTHER PERQUISITES. During his employment hereunder, Executive shall be
afforded the following benefits as incidences of his employment:
(i) BUSINESS AND ENTERTAINMENT EXPENSES. Subject to Company's standard
policies and procedures with respect to expense reimbursement as applied to
its executive employees generally, Company shall reimburse Executive for,
or pay on behalf of Executive, reasonable and appropriate expenses incurred
by Executive for business related purposes, including dues and fees to
industry and professional organizations, costs of entertainment and
business development, and costs reasonably incurred as a result of
Executive's spouse accompanying Executive on business travel.
(ii) PARKING. Company shall provide at no expense to Executive a
parking place convenient to Executive's office and a parking place at
Xxxxxx Xxxx Intercontinental Airport in Houston, Texas.
(iii) OTHER COMPANY BENEFITS. 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
executive employees of Company 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 executive employees generally; provided, however, that Company shall not
change, amend or discontinue Executive's Flight Privileges (as defined
below) without his prior written consent.
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3.5 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN.
(i) Assumption of Obligations. In lieu of the supplemental retirement
plan provisions in the Existing Agreement, Company shall provide the
following benefits set forth in this paragraph 3.5.
(ii) Base Benefit Value. Company agrees to pay Executive the deferred
compensation benefits set forth in this paragraph 3.5 as a supplemental
retirement plan (the "Plan"). The value of the base retirement benefit
under the Plan (the "Base Benefit Value") shall be the actuarial equivalent
single lump sum value, as of the Effective Date, of an annual straight life
annuity beginning on the first day of the month following the date
Executive would attain age 60 in an amount equal to the product of (a) 2.5%
times (b) the number of Executive's credited years of service (as defined
below) under the Plan (but not in excess of 24 years) times (c) the
Executive's final average compensation (as defined below). Executive shall
be vested immediately with respect to benefits due under the Plan.
(1) For purposes hereof, Executive's credited years of service
under the Plan shall be equal to the sum of (A) the number of
Executive's years of benefit service with Continental or Company,
calculated as set forth in the Continental Retirement Plan (the
"CARP") beginning at January 1, 2000 and ending on the Effective Date,
and (B) an additional one year of service for each one year of service
credited to Executive pursuant to clause (A) of this sentence for the
period beginning on January 1, 2000 and ending on the Effective Date.
For purposes of the calculation under the Plan referred to in clause
(A) of the preceding sentence, service with Company shall be treated
as service with Continental under the CARP.
(2) For purposes hereof, Executive's final average compensation
shall be equal to the greater of (A) $315,000.00 or (B) the average of
the five highest annual cash compensation amounts (or, if Executive
has been employed for less than five years by Company and by
Continental, the average over the full years employed by Company and
by Continental) paid to Executive by Company and/or Continental during
the consecutive ten calendar years immediately preceding the earlier
of Executive's termination of employment or the Effective Date. For
purposes hereof, cash compensation shall include base salary plus cash
bonuses (including any amounts deferred (other than Stay Bonus amounts
described below) pursuant to any deferred compensation plan of Company
or Continental, provided however, that no amount deferred under any
such plan shall receive duplicate credit for these purposes), but
shall exclude (A) any cash bonus paid on or prior to Xxxxx 00, 0000,
(X) any Stay Bonus paid to Executive pursuant to that certain Stay
Bonus Agreement between Continental and Executive dated as of April
14, 1998, (C) any Termination Payment paid to Executive under this
Agreement, (D) any payments received by Executive under Continental's
Officer Retention and Incentive Award Program, (E) any proceeds to
Executive from any awards under any option, stock incentive or similar
plan of Continental or
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Company, (F) any cash bonus paid under a long term incentive plan
or program adopted by Continental or Company, and (G) the 2002
Supplemental Bonus.
(iii) Offset for CARP Benefit. Any provisions of the Plan to the
contrary notwithstanding, the Base Benefit Value shall be reduced by the
actuarial equivalent single lump sum value, as of the Effective Date, of
the pension benefit, if any, paid or payable to Executive from the CARP. In
making such reduction, the Base Benefit Value and the benefit paid or
payable under the CARP shall be determined under the provisions of each
plan as if payable in the form of an annual straight life annuity beginning
on the first day of the month following the date Executive would attain age
60. The benefit payable under this Plan (the "Plan Benefit") shall be equal
to the Base Benefit Value as reduced pursuant to this paragraph 3.5(iii).
(iv) Benefit Payments. The Plan Benefit shall be paid by Company to
Executive in one lump sum as soon as administratively feasible following
the Effective Date. Continental shall have no liability with respect to the
payment of the Plan Benefit.
(v) Death Benefits. Except as provided in this paragraph 3.5(v), no
benefits shall be paid under the Plan if Executive dies prior to the
Effective Date. In the event of Executive's death prior to the Effective
Date, Executive's surviving spouse, if Executive is married on the date of
Executive's death, shall receive from Company a lump sum payment as soon as
administratively feasible following the Effective Date. The amount of such
lump sum shall be equal to 50% of the Plan Benefit.
(vi) Unfunded Benefit. The Plan is intended to constitute an unfunded,
unsecured plan of deferred compensation. Further, it is the intention of
Company that the Plan be unfunded for purposes of the Internal Revenue Code
of 1986, as amended, and Title I of the Employee Retirement Income Security
Act of 1974, as amended. The Plan constitutes a mere promise by Company to
make a benefit payment in the future. Plan benefits hereunder provided are
paid out of Company's general assets, and Executive shall have the status
of, and shall have no better status than, a general unsecured creditor of
Company for the payment of benefits under the Plan.
(vii) Actuarial Equivalent. For purposes of the Plan, the terms
"actuarial equivalent" or "actuarially equivalent" when used with respect
to a specified benefit shall mean the amount of benefit of the referenced
different type or payable at the referenced time that can be provided at
the same cost as such specified benefit, as computed by the Actuary and
certified to Executive (or, in the case of Executive's death, to his
spouse) by the Actuary. The actuarial assumptions used under the Plan to
determine equivalencies between different forms and times of payment shall
be the same as the actuarial assumptions then used in determining benefits
payable under the CARP. The term "Actuary" shall mean the individual
actuary or actuarial firm selected by Continental to service the CARP, or
if no such individual or firm has been selected, an individual actuary or
actuarial firm appointed by Company and reasonably satisfactory to
Executive and/or Executive's spouse.
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(viii) Medicare Payroll Taxes. Company shall indemnify Executive on a
fully grossed-up, after-tax basis for any Medicare payroll taxes (plus any
income taxes on such indemnity payments) incurred by Executive in
connection with the accrual and/or payment of benefits under the Plan.
3.6 PARTICIPATION IN CONTINENTAL AIRLINES, INC. DEFERRED COMPENSATION PLAN.
Notwithstanding any prior agreement to the contrary and notwithstanding the
express provisions of the Continental Airlines, Inc. Deferred Compensation Plan
(the "Deferred Compensation Plan"), (a) Executive's participation in 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, (b) Executive (or, in the event Executive's
employment is terminated by death, the Executive's designated beneficiary under
the Deferred Compensation Plan) shall be entitled to a benefit equal in value to
the balance in Executive's "Account" as of the next following "Valuation Date"
(as such terms are defined in the Deferred Compensation Plan), plus such
additional amount that, in the sole discretion of Company, is sufficient to
compensate Executive for any additional federal income tax due solely because
the distribution of such benefit pursuant to clause (c) of this sentence causes
Executive to be taxed at a higher marginal federal income tax rate than would
otherwise have applied to Executive upon his termination of employment with
Company, and (c) such benefit shall be paid as soon as administratively feasible
after such Valuation Date in a single lump sum payment. Such payment shall be
made 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 make such full payment.
Continental shall have no liability with respect to such payment. 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 3.6.
3.7 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 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.
3.8 CONTINENTAL AIRLINES, INC. EXECUTIVE BONUS PERFORMANCE AWARD PROGRAM.
Notwithstanding any provision of the Continental Airlines, Inc. Executive Bonus
Performance
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Award 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 3.8, 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 Continental Bonus Programs in accordance with
the foregoing provisions of this paragraph 3.8.
3.9 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 3.9, 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
3.9.
ARTICLE IV: EFFECT OF TERMINATION ON COMPENSATION
4.1 BY EXPIRATION. If Executive's employment hereunder shall terminate upon
expiration of the term provided in paragraph 2.1 hereof, then all compensation
and all benefits to Executive hereunder shall terminate contemporaneously with
termination of his employment, except that (A) the benefits described in
paragraph 3.5 (if not yet paid) shall continue to be payable, Executive shall be
provided Flight Privileges (as such term is defined in paragraph 4.7) for the
remainder of Executive's lifetime, Executive and his eligible dependents shall
be provided Continuation Coverage (as such term is defined in paragraph 4.7) for
the remainder of Executive's lifetime, and (B) if such termination shall result
from Company's delivery of the written notice described in paragraph 2.1, then
Company shall (i) cause all options and shares of restricted stock awarded to
Executive by Company to vest immediately upon such termination and, with respect
to options, be exercisable in full for 30 days after such termination (but in no
event longer than the maximum terms of such options), (ii) pay Executive on or
before the effective date of such termination a lump-sum cash payment in an
amount equal to the Termination Payment, (iii) provide Executive with
Outplacement Services (as such term is defined in paragraph 4.7), and (iv) pay
any amounts owed but unpaid to Executive under any plan, policy or program of
Company as of the date of termination provided by, and in accordance with the
terms of, such plan, policy or program.
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4.2 BY COMPANY. If Executive's employment hereunder is terminated by
Company prior to the expiration of the term provided in paragraph 2.1 hereof
then, upon such termination, regardless of the reason therefor, all compensation
and all benefits to Executive hereunder shall terminate contemporaneously with
the termination of such employment, except the benefits described in paragraph
3.5 (if not yet paid) shall continue to be payable. Executive and his eligible
dependents shall be provided Continuation Coverage for the remainder of
Executive's lifetime, and
(i) if such termination shall be for any reason other than those
encompassed by paragraphs 2.2(i), (ii), (iii) or (iv), then Company shall
provide Executive with the payments and benefits described in clauses (i)
through (iv) of paragraph 4.1(B), and Executive shall be provided Flight
Privileges (as such term is defined in paragraph 4.7) for the remainder of
Executive's lifetime; and
(ii) if such termination shall be for a reason encompassed by
paragraphs 2.2(i) or (ii), then Company shall (1) cause all options and
shares of restricted stock awarded to Executive by Company to vest
immediately upon such termination and, with respect to options, be
exercisable in full for 30 days (or such longer period as provided for
under the circumstances in applicable option awards) after such termination
(but in no event longer than the maximum terms of such options), and (2) if
such termination shall be for a reason encompassed by paragraph 2.2(ii),
provide Flight Privileges (as such term is defined in paragraph 4.7) to
Executive for the remainder of Executive's lifetime.
4.3 BY EXECUTIVE. If Executive's employment hereunder shall be terminated
by Executive prior to expiration of the term provided in paragraph 2.1 hereof
then, upon such termination, regardless of the reason therefor, all compensation
and benefits to Executive hereunder shall terminate contemporaneously with the
termination of employment, except that Executive shall be provided Flight
Privileges (as such term is defined in paragraph 4.7) for the remainder of
Executive's lifetime, Executive and his eligible dependents shall be provided
Continuation Coverage for the remainder of Executive's lifetime, the benefits
described in paragraph 3.5 (if not yet paid) shall continue to be payable, and
if such termination shall be pursuant to paragraphs 2.3(i), (ii), (iii), (iv),
(v), or (vi), then Company shall provide Executive with payments and benefits
described in clauses (i) through (iv) of paragraph 4.1(B).
4.4 CERTAIN ADDITIONAL PAYMENTS BY COMPANY. Notwithstanding anything to the
contrary in this Agreement, if any payment, distribution or provision of a
benefit by Company to or for the benefit of Executive, whether paid or payable,
distributed or distributable or provided or to be provided pursuant to the terms
of this Agreement or otherwise (a "Payment"), would be subject to an excise or
other special additional tax that would not have been imposed absent such
Payment (including, without limitation, any excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended), or any interest or penalties
with respect to such excise or other additional tax (such excise or other
additional tax, together with any such interest or penalties, are hereinafter
collectively referred to as the "Excise Tax"), Company shall pay to Executive an
additional payment (a "Gross-up Payment") in an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any income taxes and Excise Taxes imposed on
any Gross-up Payment, Executive retains an amount of the Gross-up Payment
(taking into account any similar gross-up payments
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to Executive under any stock incentive or other benefit plan or program of
Company) equal to the Excise Tax imposed upon the Payments. Company and
Executive shall make an initial determination as to whether a Gross-up Payment
is required and the amount of any such Gross-up Payment. Executive shall notify
Company in writing of any claim by the Internal Revenue Service which, if
successful, would require Company to make a Gross-up Payment (or a Gross-up
Payment in excess of that, if any, initially determined by Company and
Executive) within ten business days after the receipt of such claim. Company
shall notify Executive in writing at least ten business days prior to the due
date of any response required with respect to such claim if it plans to contest
the claim. If Company decides to contest such claim, Executive shall cooperate
fully with Company in such action; provided, however, Company shall bear and pay
directly or indirectly all costs and expenses (including additional interest and
penalties) incurred in connection with such action and shall indemnify and hold
Executive harmless, on an after-tax basis, for any Excise Tax or income tax,
including interest and penalties with respect thereto, imposed as a result of
Company's action. If, as a result of Company's action with respect to a claim,
Executive receives a refund of any amount paid by Company with respect to such
claim, Executive shall promptly pay such refund to Company. If Company fails to
timely notify Executive whether it will contest such claim or Company determines
not to contest such claim, then Company shall immediately pay to Executive the
portion of such claim, if any, which it has not previously paid to Executive.
4.5 PAYMENT OBLIGATIONS ABSOLUTE. Company's obligation to pay Executive the
amounts and to make the arrangements provided in this Article IV shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which Company (including its subsidiaries and affiliates) may have
against him or anyone else. All amounts payable by Company shall be paid without
notice or demand. Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision of
this Article IV, and, except as provided in paragraph 4.7 with respect to
Continuation Coverage, the obtaining of any such other employment (or the
engagement in any endeavor as an independent contractor, sole proprietor,
partner, or joint venturer) shall in no event effect any reduction of Company's
obligations to make (or cause to be made) the payments and arrangements required
to be made under this Article IV.
4.6 LIQUIDATED DAMAGES. In light of the difficulties in estimating the
damages upon termination of this Agreement, 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 this Article IV shall be received by
Executive as liquidated damages. Payment of the Termination Payment pursuant to
paragraphs 4.1, 4.2 or 4.3 shall be in lieu of any severance benefit Executive
may be entitled to under any severance plan or policy maintained by Company,
Continental or their respective affiliates.
4.7 CERTAIN DEFINITIONS AND ADDITIONAL TERMS. As used herein, the following
capitalized terms shall have the meanings assigned below:
(i) "Annualized Compensation" shall mean an amount equal to the sum of
(1) Executive's annual base salary pursuant to paragraph 3.1 in effect
immediately prior to
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Executive's termination of employment hereunder and (2) an amount equal to
125% of the amount described in the foregoing clause (1);
(ii) "Change in Control" shall have the meaning assigned to such term
in Company's 2002 Stock Incentive Plan as in effect on the Effective Date;
(iii) "Continuation Coverage" shall mean the continued coverage of
Executive and his eligible dependents under the welfare benefit plans
available to executives 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
executive who has not terminated employment; provided, however, that the
coverage to Executive (or the receipt of equivalent benefits) shall be
provided under one or more insurance policies so that reimbursement or
payment of benefits to Executive thereunder shall not result in taxable
income to Executive, and provided further that the coverage to Executive
under a particular welfare benefit plan (or the receipt of equivalent
benefits) shall be suspended during any period that Executive receives
comparable benefits from a subsequent employer, and shall be reinstated
upon Executive ceasing to so receive comparable benefits and notifying
Company thereof;
(iv) "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 the
highest priority 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
Executive and Executive's spouse in Continental's Presidents Club (or any
successor program maintained in the System), and payment by Company to
Executive 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
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privileges extended to Executive as a result of Executive's service as an
executive of Company;
(v) "Outplacement Services" shall mean outplacement services, at
Company's cost and for a period of twelve months beginning on the date of
Executive's termination of employment, to be rendered by an agency selected
by Executive and approved by the Board of Directors or HR Committee (with
such approval not to be unreasonably withheld);
(vi) "Severance Period" shall mean:
(1) in the case of a termination of Executive's employment with
Company that occurs within two years after the date upon which a
Change in Control occurs, a period commencing on the date of such
termination and continuing for thirty-six months; or
(2) in the case of a termination of Executive's employment with
Company that occurs prior to a Change in Control or after the date
which is two years after a Change in Control occurs, a period
commencing on the date of such termination and continuing for
twenty-four months; and
(vii) "Termination Payment" shall mean an amount equal to Executive's
Annualized Compensation multiplied by a fraction, the numerator of which is
the number of months in the Severance Period and the denominator of which
is twelve.
As used for purposes of Flight Privileges, with respect to any year,
"Annual Travel Limit" shall mean an amount (initially $50,000), 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 $50,000
annually (adjusted in accordance with clauses (i) and (ii) above) 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 $57,500,
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
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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 $10,000), 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
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 $10,000 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 $11,500, 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 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
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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 provisions of paragraph 3.4(i)
hereof, 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
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:
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(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 second anniversary of the date
of Executive's termination of employment with Company for any reason whatsoever;
provided, however, that in the event Executive is entitled to a Termination
Payment and the amount thereof is determined by reference to a Severance Period
of 36 months, then the noncompetition obligations set forth in paragraph 5.1
shall extend until the third anniversary of the date of Executive's termination
of employment with Company.
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 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.
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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 INTEREST AND INDEMNIFICATION. If any payment to Executive provided for
in this Agreement is not made by Company when due, Company shall pay to
Executive interest on the amount payable from the date that such payment should
have been made until such payment is made, which interest shall be calculated at
3% plus the prime or base rate of interest announced by XX Xxxxxx Xxxxx Bank (or
any successor thereto) at its principal office in New York, New York (but not in
excess of the highest lawful rate), and such interest rate shall change when and
as any such change in such prime or base rate shall be announced by such bank.
If Executive shall obtain any money judgment or otherwise prevail with respect
to any litigation brought by Executive or Company to enforce or interpret any
provision contained herein, Company, to the fullest extent permitted by
applicable law, hereby indemnifies Executive for his reasonable attorney's fees
and disbursements incurred in such litigation and hereby agrees (i) to pay in
full all such fees and disbursements and (ii) to pay prejudgment interest on any
money judgment obtained by Executive from the earliest date that payment to him
should have been made under this Agreement until such judgment shall have been
paid in full, which interest shall be calculated at the rate set forth in the
preceding sentence.
6.2 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
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IF TO EXECUTIVE TO: Xxxxx X. Xxxx
___________________
___________________
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.
6.3 APPLICABLE LAW. THIS CONTRACT IS ENTERED INTO UNDER, AND SHALL BE
GOVERNED FOR ALL PURPOSES BY, THE LAWS OF THE STATE OF TEXAS.
6.4 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.
6.5 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 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
6.10 SUCCESSORS. This Agreement shall be binding (in the case of
Continental, solely as provided in Section 6.14 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
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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.
6.11 TERM. This Agreement has a term co-extensive with the term of
employment as set forth in paragraph 2.1. Termination shall not affect any right
or obligation of any party which is accrued or vested prior to or upon such
termination.
6.12 ENTIRE AGREEMENT. Except as provided in (i) the benefits, plans, and
programs referenced in paragraph 3.4(iii) 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 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.
6.13 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.
6.14 JOINDER. Continental is a party to this Agreement solely with respect
to (a) the benefits to Continental described in the provisions of paragraphs
3.5, 3.6, 3.7, 3.8, 3.9, and 6.7, and (b) the obligations of Continental
relating to Flight Privileges as set forth in Article IV and as provided in
paragraph 3.4(iii). In addition, any provision of this Agreement that is for the
benefit of or otherwise relates to Continental shall be directly enforceable by
Continental.
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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:
-------------------------------------
Xxxxxxxxx X. Xxxxxx
Vice President and
Chief Financial Officer
"EXECUTIVE"
----------------------------------------
Xxxxx X. Xxxx
CONTINENTAL AIRLINES, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President - Human
Resources and Labor Relations
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