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Exhibit
10.58
EMPLOYMENT
AGREEMENT
BETWEEN
AIRTRAN HOLDINGS, INC.
AND
ROBERT
FORNARO
This Employment Agreement (henceforth
the “Agreement”) effective as of November 1, 2007
(the “Effective Date”) by and between ROBERT FORNARO
(henceforth the “Executive”) and AIRTRAN HOLDINGS,
INC., a Nevada corporation (henceforth the
“Company”).
RECITALS
WHEREAS, the non-management members
of the Company’s Board of Directors (henceforth the
“Board”) believe the Executive to be the best qualified
individual to protect and enhance the best interests of the Company
and its stockholders and that entering into this Agreement to
ensure the Executive’s continued and long-term employment
with the Company is in the best interests of the Company and its
stockholders; and
WHEREAS, the Board recognizes that,
as in the case of many publicly-held corporations, the possibility
of a change of control may exist and that the uncertainty and
questions which such possibility may raise among management may
result in the departure or distraction of management personnel to
the detriment of the Company and its stockholders;
and
WHEREAS, the Board has determined
that in the event of that contingency, it is imperative to be able
to rely on management’s continuance and in particular, the
leadership of the Executive and that appropriate steps should be
taken to secure that essential service; and
WHEREAS, the Board and the Executive
also desire to provide for a change of status for the Executive
during the term of this Agreement in order to maintain the
Executive’s continuing services ;
and
WHEREAS, the Executive and the
Company now desire to enter into this Agreement;
NOW, THEREFORE, for and in
consideration of the premises and mutual covenants and promises
contained herein, the Company and the Executive agree as
follows:
CONTRACT
TERMS
1.1
“Affiliate” means any Person directly or indirectly
controlling or controlled by or under the direct or indirect common
control with such Person. For purposes of this definition,
“control” when used with respect to any Person means
the power to direct the
management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract, or otherwise.
1.2 “Affiliated
Company” means:
1.2.1 A member of a
controlled group of corporations of which the Company is a member
or;
1.2.2 An unincorporated
trade or business which is under common control with the Company as
determined in accordance with Section 414(c) of the Internal
Revenue Code of 1986, as amended (henceforth the
“Code”) and regulations issued
thereunder.
1.2.3 For purposes hereof,
a “controlled group of corporations” shall mean a
controlled group of corporations as defined in Section 1563(a)
of the Code determined without regard to Section 1563(a)(4)
and (e)(3)(C) of the Code.
1.3 A “Change of
Control” will be deemed to have occurred in the event that,
after the Effective Date, any of the following events shall have
occurred:
1.3.1 Any Person, or
Persons acting together that would constitute a “group”
(a “Group”), for purposes of Section 13(d) of the
Securities Exchange Act of 1934 as from time to time amended,
together with any Affiliates or Related Persons thereof (other than
any employee stock ownership plan), beneficially owns
20% or more of the total voting power of all
classes of Voting Stock of the Company;
1.3.2 Any Person or Group,
together with any Affiliates or Related Persons thereof, succeeds
in having a sufficient number of its nominees elected to the Board
of Directors of the Company such that such nominees, when added to
any existing director remaining on the Board of Directors of the
Company after such election who is an Affiliate or Related Person
of such Person or Group, will constitute a majority of the Board of
the Company;
1.3.3 There occurs any
transaction, or series of related transactions, and the beneficial
owners of the Voting Stock of the Company immediately prior to such
transaction (or series) do not, immediately after such transaction
(or series) beneficially own Voting Stock representing more than
50% of the voting power of all classes of Voting Stock of the
Company (or in the case of a transaction (or series) in which
another entity becomes a successor to the Company, of the successor
entity); or,
1.3.4 The Company shall
cease to own a majority of the capital stock of its operating
subsidiaries;
1.4
“Disability” shall mean the permanent and total
inability by reason of mental or physical infirmity or both, of the
Executive to perform the work customarily assigned to him.
Additionally, a medical doctor, selected or approved by the Board
must advise the Board that it is either not possible to determine
when such Disability will
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terminate or that it appears probable
that such Disability will be permanent during the remainder of the
Executive’s lifetime. If the Company secures an “own
occupation” disability policy to cover its liability pursuant
to this Agreement, such definition in the policy shall be deemed to
control.
1.5 “Notice of
Termination” means a notice which shall indicate the specific
Termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for Termination of Executive’s employment
under the provision so indicated.
1.6 “Normal
Retirement Date” means a date selected on written notice to
the Company by the Executive on which the Executive shall retire
from, and cease to perform services for, the Company in accordance
with Company policy. The Executive’s retirement from, and
cessation of performing services for, the Company upon his reaching
such Normal Retirement Date shall constitute a Termination but
shall not entitle Executive to benefits under Section 15 or
Section 16 of this Agreement.
1.7 “Person”
means any individual, corporation, partnership, trust, joint
venture or other legal entity holding, or acquiring Voting Stock of
the Company.
1.8 “Related
Person” means, with respect to any Person, any other Person
owning:
1.8.1 5% or more of the outstanding
Common Stock of such Person; or,
1.8.2 5% or more of the Voting Stock
of such Person.
1.9
“Termination” shall mean a cessation of the employment
relationship between the Executive and the Company that constitutes
a “separation from service” within the meaning of Code
Section 409A, and the terms “Terminate” and
“Terminated” shall have correlative
meanings.
1.10 “Termination
for Cause” means the Termination as a result of a conviction
for a willful violation of any law, rule or regulation (other than
traffic violations or similar offenses), or a material breach of
this Agreement on the part of the Executive that is not cured
within ten (10) business days of notification by the
Company.
1.11 “Voting
Stock” means any equity security or series of equity
securities, issued by the Company which are entitled to vote for
Directors of the Company.
2.1 Term—The term of
this Agreement shall commence on the date first noted above, and
shall terminate on the third anniversary of such date
(“Term”) unless extended, pursuant to Section 2.2,
or modified pursuant to Section 3.2.
2.2 Extension—This
Agreement shall be automatically extended by one year upon the
expiration of the Term or any renewal term, unless the Company
provides 90
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days notice before such expiration of
the intention to terminate the Agreement (“Extended
Term”). No termination of this Agreement pursuant to the
Company’s providing such notice shall constitute Termination
of Executive’s employment by the Company for purposes of
determining whether, or to what extent, a benefit is payable
hereunder.
3.1 Executive shall be
employed by Company as its President and Chief Executive Officer
during the Term of this Agreement except as provided in
Section 3.2 below. Executive shall report directly and solely
to Company’s Board of Directors. The Board agrees to nominate
Executive for election to the Board as a member of its slate at
each annual meeting of stockholders during the Term. Executive
agrees to serve on the Board if elected. The duties and
responsibilities of President and, Chief Executive Officer shall be
as defined in the By-Laws of Company in effect as of the date
hereof, and shall be without consideration of other positions
Executive may hold with the Company. Executive’s services are
mutually agreed to be unique.
3.2 During
Executive’s period of service hereunder, Executive agrees to
perform such services not inconsistent with his position as shall
from time to time be assigned to him by the Company’s Board.
During the Term, except for Disability, illness and vacation period
and except as otherwise provided herein, Executive shall devote his
full productive time, attention and energies to the position of
President and Chief Executive Officer.
3.3 Executive’s
expenditure of reasonable amounts of time in connection with
outside activities, not competitive with the business of the
Company, such as outside directorships or charitable or
professional activities shall not be considered in contravention of
this Agreement so long as such activities do not materially
interfere with his performance of this Agreement. Further, it is
understood and agreed by the parties hereto that Executive is
entitled to engage in passive and personal investment activities
not materially interfering with his performance of this
Agreement.
3.4 Service as an
executive of an Affiliated Company, whether separately compensated
or not, shall not be considered in contravention of this
Agreement.
4.1 Throughout the Term of
this Agreement, the Executive shall receive an annual base salary
of at least $ 500,000.
4.2 The Compensation
Committee of the Board shall review the Executive’s salary at
least annually, at or during the July Compensation Committee
meeting. The Compensation Committee may increase the base salary
based upon relevant considerations, including, but not limited to
the performance of the Executive and the Company, changes in the
cost of living and competitive compensation data.
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INCENTIVE COMPENSATION |
In addition to the salary
stated in Section 4, the Executive shall be eligible during
the Term for an annual cash incentive award based on his
performance and the performance of the Company in accordance with
the management incentive plan as it may be in effect from
time-to-time with an annual target of one hundred and fifty percent
(150%) of the Executive’s year-end base salary rate. Any
such cash incentive award shall be paid to Executive not later than
2 1 /
2 months following the close of the calendar year to
which such incentive award relates.
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STOCK GRANT AND STOCK OPTIONS |
6.1 As of the Effective
Date, the Executive shall be granted an aggregate of 300,000 shares
of the Company’s Common Stock, par value $.001 per share
(“Shares”).
6.1.1 The Shares shall
vest as follows: 33 1
/ 3 % on November 1,
2008, 33 1 / 3 % on November 1, 2009 and 33
1 /
3 % on November 1,
2010.
6.1.2 All Shares granted
prior to the date of Termination of Executive’s employment
without Cause shall vest 100% if the Executive is Terminated
without Cause (including Termination due to death or
Disability).
6.1.3 All Shares granted
before a Change of Control shall accelerate and become fully vested
in the event of a Change of Control.
6.2 In addition to the
one-time grant provided in section 6.1 above, Executive shall be
eligible for annual stock grants at times and in amounts to be
determined by the Board. Annual stock grants: (a) may be
awarded in restricted stock or in any such other form as is
permitted under the Company’s 2002 Long Term Incentive Plan;
(b) will have a target value equivalent to 75,000 shares of
the Company’s Common Stock but at the Board’s
discretion have a larger or lesser value based on the circumstances
at the time the grant; and (c) be awarded based upon the
achievement of pre-determined performance objectives established by
the Board of Directors.
6.3 The Executive, in
accordance with the Company’s standard policies shall have
the right to exercise any Stock Options previously granted under
either the 1996 Stock Option Plan and/or the 2002 Long Term
Incentive Plan at a date which is not later than the expiration of
the later of one (1) year after the Executive’s Normal
Retirement Date or the end of the Term of this Agreement, but in no
event later than the expiration date of the option; provided that
no Stock Option granted or vesting after December 31, 2004,
shall be exercisable after the last date permitted for exercise
pursuant to the terms of the applicable Stock
Option.
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REIMBURSEMENT OF EXPENSES |
The Executive, during the
Term shall be authorized to incur and shall be reimbursed by the
Company for all reasonable expenses for the advancement of the
Company’s business pursuant to standing Company policy at
least monthly. The Executive agrees to provide to the Company such
information as may be reasonably necessary to substantiate any
reimbursement or payment of such expenses at such time as is
consistent with Company policy but in no event later than 30 days
following the close of the calendar year in which such expense is
incurred. Upon receipt of such substantiation, the Company shall
pay or reimburse such expenses promptly in accordance with Company
policy but in no event later than 2 1 / 2 months following the close of the calendar year in which
such expense was incurred by the Executive.
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MEDICAL BENEFITS ON RETIREMENT |
The Executive and/or his spouse, on
or after the Executive’s Normal Retirement Date and/or
immediately upon Termination under Sections 10, 12, 13.3, 13.4
and/or 15 hereunder, shall be entitled to participate in such
postretirement medical/dental plans that the Company makes
available to other retired officers; provided, however,
that:
8.1 In the event of a
Termination for Cause under Section 12.2, the entitlement of
the Executive and/or his spouse to participate in such
postretirement medical/dental plans shall end on the third
anniversary of such Termination; and
9.1 The Executive shall be
eligible to participate in any and all other benefit programs which
are, and which may be in the future, generally available to members
of the Company’s management, including, but not limited to
group health, disability, and life insurance benefits,
participation in any pension, retirement and/or profit-sharing
plans, financial planning, or other perquisites.
9.2 Except as otherwise
provided herein, the Company shall provide free on-line air
transportation on any route maintained by the Company for the
Executive and his spouse for the lifetimes of both the Executive
and his spouse. The Company shall provide to the Executive’s
pass-eligible dependents free on-line air transportation as and to
the extent provided in the Company’s pass
policy.
9.3 During the Term, the
Company shall reimburse the Executive for all medical and dental
expenses incurred by the Employee and his spouse. Expenses for
medical care shall be deemed to include all amounts paid with
respect to hospital bills, doctor and dental bills and drugs which
are not compensated by insurance policies maintained by the
Company. The Executive agrees to provide to the Company such
information as may be reasonably necessary to substantiate any
reimbursement or payment of such expenses not later than 30 days
following the close of the calendar year in which such expense is
incurred. Upon receipt of such substantiation, the Company shall
promptly pay or reimburse such expenses, but in no event later than
2 1 /
2 months following the close of the calendar year in
which such expense was incurred by the Executive or his
spouse.
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If the Executive’s services
hereunder are Terminated due to Disability as defined in the
Agreement, the Executive shall receive:
10.1 His full salary for
the remainder of the Term, payable in accordance with the regular
payroll practices of the Company, offset by any amounts payable
from a disability policy maintained by the Company.
10.2 Any stock options,
stock grants or stock appre
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