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EXHIBIT 10.9
RESTATED EMPLOYMENT AGREEMENT
THIS RESTATED EMPLOYMENT AGREEMENT ("Agreement") is dated as of April
1, 1998 by and between COMAIR HOLDINGS, INC., a Kentucky corporation ("Company")
and XXXXX X. XXXXXXXXXXXX ("Siebenburgen").
W I T N E S S E T H:
WHEREAS, the Company and Siebenburgen entered into an Employment
Agreement dated June 30, 1986 as restated by Restated Employment Agreement dated
as of June 1, 1988 which they desire to amend and restate; and
WHEREAS, Company desires to employ Siebenburgen as President and Chief
Operating Officer, and Siebenburgen desires to perform such duties;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company does hereby employ Siebenburgen, subject to
the terms and conditions hereinafter contained, as an executive employee with
the title of President and Chief Operating Officer or such other executive title
or titles hereafter determined by the Board of Directors of Company, and
Siebenburgen accepts such employment upon the terms and conditions herein
contained.
2. TERM. The term of this Agreement shall be for three (3) years, which
shall commence on April 1, 1998, and shall terminate on March 31, 2001, unless
sooner terminated in accordance with the provisions hereof; provided, however,
on March 31 of each year during the
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term commencing in 1999, this Agreement shall be extended for an additional year
unless either party shall give thirty (30) days prior written notice not to
automatically extend the term for an additional year.
3. DUTIES AND RESPONSIBILITIES.
(a) Siebenburgen agrees during the term of his employment hereunder to
use his best efforts, skills and abilities to promote Company's business and
interests and to perform such duties consistent with his appointment as
President and Chief Operating Officer as may be assigned to him by the Chief
Executive Officer, Board of Directors or the Executive Committee of the Board of
Directors of the Company. Siebenburgen shall maintain communication with the
Chairman, Chief Executive Officer and the Board of Directors of Company
concerning his areas of responsibility and shall supply them with written
reports, business plans, budgets, forecasts and other studies concerning the
business of the Company as he shall prepare from time to time during his
employment by the Company hereunder, which reports, plans, budgets, forecasts
and other studies shall be implemented only with the approval of the Board of
Directors.
(b) Siebenburgen agrees to abide by any and all rules and regulations
governing the transaction of business as the Board of Directors of Company may
from time to time adopt or approve.
4. ELECTION AS DIRECTOR AND OFFICER. It is contemplated that
Siebenburgen will continue to be elected as a member of the Board of Directors
and appointed President and Chief Operating Officer of Company and will be
retained in such posts throughout his employment by Company.
5. COMPENSATION. Company shall pay Siebenburgen in full payment for any
and all
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services rendered by him hereunder, including, without limitation, all
services as an officer of Company, its subsidiaries or affiliates, a salary at
an annual rate of Four Hundred Twenty Thousand Dollars ($420,000), subject to
increase at the sole discretion of the Board of Directors and payable in
accordance with the customary payroll practices of Company (but not less often
than monthly). If Siebenburgen's salary is increased by the Board of Directors,
such increased salary shall become the minimum amount of compensation payable to
Siebenburgen under this Agreement, and will not be reduced thereafter.
Siebenburgen shall also remain a participant in the Company's Management
Incentive Compensation Plan (the "Plan"), or any replacement or successor Plan
of the Company, and shall be eligible to receive bonuses thereunder in
accordance with the terms of the Plan.
6. ADDITIONAL EMPLOYMENT BENEFITS. Siebenburgen shall be entitled to
participate in all benefits made generally available by Company to its Executive
Officers during the period covered by this Agreement, including, without
limitation, vacations, pension plans, profit sharing plans, hospitalization
insurance, health and accident insurance, disability insurance, group term life
insurance, automobile allowances and all other fringe benefits which may be
provided by Company for any of its Executive Officers during the term of
employment.
7. INDEMNIFICATION. Company shall indemnify and hold Siebenburgen
harmless for any actions taken or decisions made by him in good faith while
performing services in his capacity as President and Chief Operating Officer of
Company during the term of this Agreement. To the extent permitted by law,
Company shall pay, indemnify, and hold Siebenburgen harmless from any liability,
cost or expense (including, without limitation, reasonable attorneys' fees)
incurred by him in the defense of any claim, proceeding or action arising out of
his performance of services for
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Company, or out of his status as an Officer of Company. Company will use its
best efforts to obtain coverage for Siebenburgen under any insurance now in
force or hereafter obtained during the term of this Agreement covering any
employee or officer of Company. Notwithstanding the foregoing, Company does not
intend to and shall not indemnify Siebenburgen for any act or omission by him
constituting fraud or willful misconduct.
8. TERMINATION. Siebenburgen's rights under this Agreement shall
continue until expiration of the term under Section 2 hereof, unless prior
thereto: (i) Siebenburgen dies; (ii) Siebenburgen is dismissed without cause
pursuant to Section 9 hereof; (iii) Siebenburgen is dismissed for cause as
defined in Section 10 hereof; or (iv) Company determines that Siebenburgen has
become disabled, as provided in Section 11 hereof.
9. EARLY TERMINATION.
(a) Notwithstanding anything to the contrary herein, the Company shall
have the right at any time, at its sole option, to terminate Siebenburgen's
employment hereunder without cause upon thirty (30) days' prior written notice;
provided, however, if Siebenburgen's employment is terminated pursuant to this
Section 9, Company shall pay Siebenburgen, and Siebenburgen shall accept in full
satisfaction of Company's obligations under this Agreement, an amount equal to
three (3) times the sum of (i) the base salary in effect at the termination
date, plus (ii) the average annual bonus compensation payable to Siebenburgen
during the prior three (3) fiscal years, payable in a lump sum payment within
fifteen (15) days following termination; provided, further, in the event of a
"change in control" of the Company (as hereinafter defined), (i) this Agreement
shall be deemed terminated as of the date of the change of control, and the
Company shall pay to Siebenburgen the payments required under this Section; and
(ii) all of Siebenburgen's stock
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options shall automatically vest without further action as of the date of the
change of control and Siebenburgen shall be subject to exercise in accordance
with the terms of the applicable Stock Option Plan including without limitation
for a period of not less than ninety (90) days, provided, further, Siebenburgen
shall have the right to waive the termination and payments due hereunder upon
execution of a revised Employment Agreement with the Company, in form and
substance satisfactory to Siebenburgen. "Change in control" shall be deemed to
occur if any person or affiliated group acquires more than Twenty-Five Per Cent
(25%) of the outstanding common stock of the Company. Siebenburgen hereby
acknowledges that as a condition of his right to receive the payments provided
for in this Section 9, he will be required and hereby agrees to execute and
deliver to Company a form of release and any other documents reasonably
requested by Company to acknowledge full satisfaction by Siebenburgen of
Company's obligations under this Agreement.
(b) If Siebenburgen's employment is terminated due to death or
disability, Company shall, thereafter, pay to Siebenburgen or the estate or
legal representative of Siebenburgen an amount equal to the payment due under
Section 9(a) hereof upon termination of this Agreement.
10. TERMINATION FOR CAUSE.
(a) Anything herein to the contrary notwithstanding, Company shall have
the right to terminate Siebenburgen's employment hereunder for cause, as such
terms are defined in the following section.
(b) For the purpose of this Section 10, the term "cause" means (i)
fraud, misappropriation, embezzlement, intentional and material damage to the
property of Company; or (ii) material breach of any of the provisions of this
Agreement described in Section 12.
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(c) Upon termination of Siebenburgen's employment for cause pursuant to
this Section 10, Siebenburgen shall not be entitled to receive any further
compensation other than accrued benefits under profit sharing or pension plans,
if any, and shall be completely relieved of his position as an officer of
Company, its subsidiaries and affiliates, and Siebenburgen covenants and agrees
to deliver at the termination date all resignations necessary to effect the
foregoing.
11. DISABILITY.
(a) If, during the term of this Agreement, Siebenburgen contracts an
illness or other disability which prevents performance by him of his duties as
an Executive Officer for a consecutive period of six (6) months or more, then
Company at its option, may at any time thereafter terminate this Agreement by
serving thirty (30) days written notice thereof on Siebenburgen and this
Agreement shall terminate and come to an end upon the date set forth in said
notice as if such date were the termination date of this Agreement. If prior to
the date specified in such notice, Siebenburgen's illness or incapacity shall
have been terminated and he is physically and mentally able to perform his
duties as an Executive Officer and shall have taken up and is performing such
duties on a full time basis, he shall be entitled to resume employment hereunder
as though such notice had not been given.
(b) During any period of disability and prior to the termination of
this Agreement as in this Section provided, Siebenburgen shall continue to be
paid in full by Company in accordance with the provisions of Section 5, except
that Company shall deduct from Siebenburgen's compensation as herein provided an
amount equal to any disability insurance payments received by Siebenburgen for
such period pursuant to disability insurance policies paid for and maintained by
Company for the benefit of Siebenburgen.
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(c) If there should be any dispute between the parties as to
Siebenburgen's physical or mental disability at any time, such questions shall
be settled by the majority opinion of three impartial, reputable physicians, one
of whom shall be selected by Company, another by Siebenburgen, and the third by
the two physicians selected by Company and Siebenburgen. The certificate of two
such physicians as to the matter in dispute shall be final and binding on the
parties.
12. CONFIDENTIALITY AND NON-COMPETITION.
(a) Siebenburgen will not at any time during the term of this Agreement
or thereafter, except as authorized by Company, divulge, furnish or make
accessible to any person, firm, corporation or other entity, any such
confidential and sensitive information and any other information not otherwise
publicly available which he presently possesses or which he may obtain during
the course of his employment with respect to the business, customers and affairs
of Company or any subsidiary or affiliate of Company or trade secrets,
developments, know-how methods or other information and data pertaining to
practices, equipment, developments or any confidential or secret aspect of the
business of Company or any subsidiary or affiliate of Company, and that all such
matters and information shall be kept strictly and absolutely confidential.
Siebenburgen, upon termination of his employment, irrespective of the time,
manner or cause of termination, will surrender and deliver to Company all lists,
books, records and data of every kind relating to or in connection with the
business of Company or any subsidiary or affiliate of Company, and all property
belonging to Company and any subsidiary or affiliate of Company.
(b) During the term of this Agreement and, in the event that
Siebenburgen's employment with Company is terminated for any reason other than a
change in control as defined
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in Section 9 hereof, for a period of two (2) years after such termination,
Siebenburgen shall not, directly or indirectly, engage in or contract with
others to engage in any business enterprise, line of work, consulting contract,
joint venture or other arrangement which conducts a business or businesses
substantially similar to the business conducted by Company in any area in which
Company or any of its affiliates or subsidiaries provides or plans to provide
air transportation to the public. Siebenburgen acknowledges that the geographic
area covered hereby, and the period and nature of the agreed restrictions are
reasonable and necessary for the protection of the business of Company. All
provisions of this paragraph concerning non-competition are severable; and while
it is the intention of the parties that all of said provisions shall be
enforceable, if any one of the same shall be held to be unenforceable in whole
or in part, the remainder shall continue to be in full force and effect.
13. IRREPARABLE INJURY. Siebenburgen acknowledges that his compliance
with his duties and obligations under Section 12 is necessary to protect the
goodwill and other proprietary interests of Company and the purposes and essence
of this Agreement. Siebenburgen acknowledges that a breach of his duties and
obligations under Section 12 will result in irreparable and continuing damage to
Company for which there will be no adequate remedy at law; and agrees that, in
the event of any breach of any of the aforesaid duties and obligations, Company
and its successors and assigns shall be entitled to injunctive or other
equitable relief and to such other and further relief as may be proper.
14. ASSIGNMENT AND SUCCESSORS IN INTEREST. To the extent that the
obligations provided for herein require the personal performance of
Siebenburgen, Siebenburgen's rights, interests and obligations as provided
herein may not be assigned. Except as otherwise provided in
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the immediately preceding section of this sentence, all rights privileges and
obligations of the parties hereto shall inure to the benefit of and be binding
upon their respective successors, assigns, heirs, executors, administrators and
estates.
15. NOTICE. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U. S. registered or certified
mail; if to Company, at Xxxx Xxxxxx Xxx 00000, Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxx 00000; if to Siebenburgen, at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000, or such other address as either party may specify in a
written notice to the other party.
16. ENTIRE AGREEMENT AND AMENDMENT. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements, whether
written or oral, relating to the object matter herein. Any amendment hereto
shall be in writing and executed by the duly authorized representatives of each
party.
17. CHOICE OF LAW. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Kentucky.
18. SEVERABILITY. If any portion of this Agreement shall be held
unenforceable for any reason, the same shall not affect the validity or
enforceability of the remaining provisions contained herein.
19. HEADINGS. The section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMAIR HOLDINGS, INC.
BY: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXXXXXXX
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Xxxxx X. Xxxxxxxxxxxx
