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Exhibit
10.59
EMPLOYMENT
AGREEMENT
BETWEEN
AIRTRAN HOLDINGS, INC.
AND
JOSEPH B.
LEONARD
This Employment Agreement (henceforth
the “Agreement”) effective as of 1st day of September,
2007 (the “Effective Date”) by and between JOSEPH B.
LEONARD (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”) wish to ensure an effective and seamless
transition in management to protect and enhance the best interests
of the Company and its stockholders and that entering into this
Agreement to ensure the Executive’s employment and
appropriate transition 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
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Board that it is either not possible
to determine when such Disability will 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 any 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), that results in a material
loss to the Company or one of its Affiliates, 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 September 1, 2008
(“Term”).
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3.1 Executive shall be
employed by Company as its Chairman 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 (“Board”). 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 and the Extended Term. Executive agrees to serve on the
Board if elected. The duties and responsibilities of Chairman 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 At the mutual
agreement of the Executive and the Board, Executive may resign as
Chief Executive Officer but continue to be employed by Company as
its Chairman during the remainder of the Term, provided, however,
that such resignation shall not for any reason under this Agreement
constitute a Termination of employment. During such period
following Executive’s resignation as Chief Executive Officer
(henceforth referred to as the “Post-CEO Period”),
Executive shall continue for all purposes of this Agreement to be
an executive officer and key employee of Company and shall report
directly and solely to the Board. Executive’s duties during
the Post-CEO Period shall include responsibility for overseeing the
implementation of the Company’s current and long range
business policies and programs and handling such other functions as
may be directed from time-to-time by the Board. The Executive,
during the Post CEO–Period shall devote such time and effort
as may be required for him to discharge his duties hereunder but in
no event less than eighty (80) hours per month on average.
During the Post-CEO Period, the Executive shall be provided with
such secretarial and other support personnel and general working
environment as may be required for him to carry out his duties and
responsibilities.
3.3 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
Chairman of the Board and Chief Executive Officer
.
3.4 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.
3.5 Service as an
executive of an Affiliated Company, whether separately compensated
or not, shall not be considered in contravention of this
Agreement.
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4.1 Throughout the Term of
this Agreement, the Executive shall receive an annual base salary
of at least $500,000.
4.2 Upon the
Executive’s resignation as Chief Executive Officer, and
during the Post-CEO Period, the Executive shall receive an annual
base salary of 70% of the base salary payable to him immediately
prior to the commencement of the Post-CEO Period.
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INCENTIVE COMPENSATION |
5.1 In addition to the
salary stated in Section 4 and except as is set forth in
Section 5.2 below, 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 cap of one hundred and fifty percent (150%) of
the Executive’s base salary. 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.
5.2 During the Post-CEO
Period, the Executive shall be eligible for an annual cash
incentive award pursuant to the same formula as noted in
Section 5.1 of this Agreement based upon his actual salary
during the period. 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.
6.1 Executive shall be
eligible to participate in any Stock Option/Grant plans maintained
by the Company and any additional or successor plans in effect from
time to time.
6.2 During the Post-CEO
Period, the executive will no longer be eligible for new grants
under any Stock Option/Grant plan maintained by the Company. Any
outstanding Stock Options or Grants will continue to vest under the
terms of the plan in effect at the time the Executive resigns his
position as CEO.
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 including the Post-CEO
Period, 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
including the Post-CEO Period 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 but not later than
March 15 of the next calendar year after such expense is
incurred. The Executive agrees to timely 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.
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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 paragraphs 11, 13, 14 and/or 16
hereunder, shall be entitled to participate in such postretirement
medical/dental plans that the Company makes available to other
retired officers.
10.1 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 the Key Employees Retirement Plan and any and all
other any pension, retirement and/or profit-sharing plans,
financial planning, or other perquisites.
10.2 Except as otherwise
provided herein, the Company shall provide free 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.
10.3 During the Term, the
Company shall reimburse, by March 15 of each year, the
Executive for all medical and dental expenses incurred by the
Employee and his spouse during the prior calendar year. 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 or otherwise. The Executive agrees
to provide to the Company such information as may be reasonably
necessary to substantiate any reimbursement or payment of such
expenses.
If the Executive’s services
hereunder are Terminated due to Disability as defined in the
Agreement, the Executive shall receive:
11.1 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.
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11.2 Any stock options,
stock grants or stock appreciation rights granted to the Executive
shall be immediately vested; and,
11.3 The Executive and his
spouse shall retain the travel benefits noted in
Section 10.2.
12.1 In addition to
participation in any life insurance plans maintained by the
Company, to the extent that the Company’s group term life
insurance provides a death benefit of less than $1,000,000, the
Company shall pay to the applicable insurance company the premium
on a universal life insurance policy to be owned by the Executive
equal to the difference between the co
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