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EXHIBIT (c)(11)
NON-EMPLOYER DIRECTOR AGREEMENT
OF XXXXXX X. XXXXXXXXXX
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EXHIBIT (c)(11)
AGREEMENT
THIS AGREEMENT ("Agreement") is dated as of August 10, 1999, by and
between COMAIR HOLDINGS, INC., a Kentucky corporation ("Company"), and XXXXXX X.
XXXXXXXXXX ("Director").
W I T N E S S E T H:
WHEREAS, the Company is organized under the laws of the Commonwealth of
Kentucky and engaged in the airline business; and Director has been an active
and loyal director of the Company for a period of years which has contributed to
its success; and
WHEREAS, Company desires to provide for the additional service and
added responsibilities which may be involved in future service involving a
change in control (as hereinafter defined ) and encourage the continuation of
the service of the Director for and on behalf of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Director. The Director shall serve as a director of the
Company for the remainder of his current term of office, and each additional
term for which such Director is nominated by the Board of Directors and elected
to serve by the shareholders of the Company.
2. Change in Control.
(a) In the event of a "change in control" of the Company
(as hereinafter defined) during Director's service as a director of the
Company, the Director shall be entitled to receive from the Company the
following payments and benefits:
(i) The Company shall pay Director a lump sum in
cash, equal to Director's earned but unpaid director's fees
for the period through and including the date of the Change in
Control.
(ii) The Company shall pay Director an amount
equal to five (5) times the annual director's fees, including
fees for meetings and as chairman of any committees, in effect
as of the date of the Change in Control.
(iii) Director and Director's spouse, for the
remainder of their respective lives, and Director's dependent
children, for so long as they are under age 18 (or
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under age 23 if a full-time student) shall be entitled to free
system-wide flight privileges on Company flights to any
location which the Company serves. Such privileges shall
entitle Director, Director's spouse and Director's dependent
children to unlimited positive space (or space available, at
Director's option) tickets; provided, further, that all of
such flight privileges shall otherwise be subject to the same
conditions and restrictions as pertain from time to time to
the flight privileges generally provided by the Company to its
executive employees. Nothing herein shall be deemed as a
limitation upon any flight privileges for which Director may
otherwise qualify.
(b) A "Change in Control" means the occurrence of any of
the following:
(i) When any "person," as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than Company or a
subsidiary, or any Company or subsidiary's employee benefit
plan (including any trustee of such plan acting as trustee)
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly of securities of the
Company or Comair, Inc., ("Comair") representing fifty percent
(50%) or more of the combined voting power of the Company's or
Comair's then outstanding securities;
(ii) Any transaction or event relating to the
Company or any subsidiary required to be described pursuant to
the requirements of Item 6(e) of Schedule 14A of the
Securities and Exchange Commission under the Exchange Act (as
in effect on the effective date of this Agreement), whether or
not the Company or subsidiary is then subject to such
reporting requirement;
(iii) When, during any period of two (2)
consecutive years during the term of this Agreement, the
individuals who, at the beginning of such period, constitute
the Board of the Company, cease for any reason other than
death to constitute at least a two-thirds (2/3) majority
thereof; provided, however, that a director who was not a
director at the beginning of such period shall be deemed to
have satisfied the two-year requirement if such director was
elected by, or on the recommendation of, at least two-thirds
(2/3) of the directors who were directors at the beginning of
such period (either actually or by prior operation of this
Subsection 2.(b)(iii)); or
(iv) The occurrence of a transaction requiring
shareholder approval for the acquisition of the Company or
Comair by an entity other than any subsidiary through purchase
of assets, by merger, or otherwise.
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3. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Director's rights as a director of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices including, without limitation,
directors' and officers' insurance coverage provided by the Company for which
Director may qualify. Vested benefits or other amounts which Director is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company, at or subsequent to the date of termination of Director's service
shall be payable in accordance with such plan, policy, practice, or program
except as expressly modified by this Agreement.
4. Assignment and Successors in Interest. To the extent that the
obligations provided for herein require the personal performance of Director,
Director's rights, interests and obligations as provided herein may not be
assigned. Except as otherwise provided in 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. The Company will require
any successor (whether by reason of a Change in Control, direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform the obligations under this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
5. 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 Director, at 0000 Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxx 00000, or such other address as either party may specify
in a written notice to the other party.
6. Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky.
7. 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.
8. Headings. The section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
Remainder of this page intentionally left blank. Signature page follows.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES: COMAIR HOLDINGS, INC.
BY: /s/ Xxxxx X. Xxxxxxx
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Its: CEO
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/s/ Xxxxxx X. Xxxxxxxxxx
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XXXXXX X. XXXXXXXXXX
