Exhibit 10.2
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September
23,
2005, is entered into among FBO Air, Inc.
("FBO"), Airborne, Inc. (the
"Company"), and John Dow ("Executive").
Recitals
WHEREAS,
the Company wishes to employ Executive and Executive wishes to
be
employed by the Company, on the terms and
conditions set forth below.
THEREFORE,
the parties agree as follows:
1.
Employment Duties. During the Term (as defined in paragraph 2
below),
the Company will employ Executive as the
Office of the Chief Executive of the
Company. Executive will devote
substantially all of his business time and
attention to the performance of his duties
under this Agreement. Executive shall
have the duties, rights and
responsibilities normally associated with his
position with the Company, together with
such other reasonable duties relating
to the operation of the business of the
Company and its affiliates as may be
assigned to him from time to time by the
Chairman or Chief Executive Officer of
the Company or the Board of Directors of
the Company. If the Executive is
elected as a director of FBO, Executive
shall act as a director of FBO without
any compensation other than that provided
for in paragraph 3. Executive hereby
agrees to promote and develop all business
opportunities that come to his
attention relating to the current or
anticipated future business of the Company,
in a manner consistent with the best
interest of the Company and with his duties
under this Agreement. As used herein, the
term "business opportunity" shall not
include business opportunities involving
investment in publicly traded stocks,
bonds or other securities, or other
investments of a personal nature.
2. Term.
The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this
Agreement and will continue, subject to
the termination provisions set forth in
paragraph 5 below, until the third
anniversary of the date hereof; provided,
however, that this Agreement will
automatically renew for additional one-year
periods unless either party gives
written notice to the other not to extend
the Term not less than 90 days prior
to the then next upcoming expiration
date.
E-66
<PAGE>
3. Salary
and Bonus.
a. Salary.
During each year of the Term, Executive will receive a salary
at the annual rate of $150,000 (the "Base
Salary"). The Base Salary shall be
payable in equal monthly installments. The
Board of Directors of the Company may
increase such salary at any time and from
time to time.
b. Bonus.
In addition to Base Salary, the Executive shall be guaranteed
an
annual incentive bonus payment of $100,000
which amount shall be payable in
equal monthly installments upon execution
of this agreement. In addition to the
annual incentive bonus, the Executive shall
be entitled to an annual performance
bonus payable within 120 days after the end
of each year ended December 31 in an
amount which shall be determined in the
sole discretion of the Board of
Directors taking into account such factors
concerning the performance of the
Company and Executive and Executive's
overall compensation level as shall be
determined by the Board of Directors. The
primary criteria for the amount of the
performance bonus will be the operating
results of the Division. The amount of
the performance bonus shall be determined
in the sole discretion of the Board of
Directors and Executive shall not be
entitled to any performance bonus unless
and until such performance bonus is
approved by the Board of Directors.
4. Fringe
Benefits. In addition to the other compensation payable
pursuant
to this Agreement, during the Term:
a.
Standard Benefits. Executive will be entitled to receive such
fringe
benefits and perquisites, including medical
and life insurance, as are generally
made available from time to time to senior
management employees and executives
of the Company and to participate in any
pension, profit-sharing, stock option
or similar plan or program established from
time to time by the Company for the
benefit of its senior management employees,
provided, that such benefits,
perquisites and plans shall be at the same
level or better, in the aggregate,
than those made available generally to
similarly situated employees of FBO, or
Executive shall be entitled to receive such
benefits from FBO rather than the
Company. Without limiting the generality of
the foregoing, the Company agrees to
(i) pay premium expenses on behalf of
Executive and family for medical, dental
and vision insurance coverage; (ii) provide
an automobile, insurance,
maintenance and fuel to Executive; (iii)
provide and pay for term life insurance
insuring the life of Executive during the
term of this Agreement in the amount
of One Million Dollars ($1,000,000.00),
with one-half (1/2) of the proceeds
thereof directed to such beneficiary or
beneficiaries as Executive may from time
to time appoint and one-half (1/2) the
proceeds thereof directed to the Company;
and (iv) arrange and pay for a complete
executive physical examination every
year, provided, however, that the results
of the physical examination shall be
made known to the Company as well as to
Executive.
E-67
<PAGE>
b.
Vacation. The Executive shall be entitled each year to a vacation
of
three (3) weeks, during which time his
compensation shall be paid in full. Each
vacation shall be taken at such time as to
minimize its affect on the operations
of the Company.
c.
Business Expenses. The Company will pay or reimburse Executive for
all
business-related expenses incurred by
Executive in the course of his performance
of duties under this Agreement, subject to
the procedures established by the
Company from time to time with respect to
incurrence, substantiation,
reasonableness and approval.
d. Stock
Options. Executive shall be entitled to receive an Option to
purchase shares of FBO's Common Stock, par
value $0.001 per share (the "Common
Stock"), as follows:
250,000 shares on the date hereof;
250,000 shares on the first anniversary of the date hereof; and
250,000 shares on the second anniversary of the date hereof.
The per share price will be the fair market value of the Common
Stock as of the close of business on the
day immediately preceding each
respective grant date (as determined for
options granted to officers of FBO or
pursuant any stock option plan adopted by
FBO) and will vest at the time of the
issuance. The executive will have five
years to acquire the stock from the date
of issuance. So long as it may be done
lawfully, the manner of acquisition of
stock shall be structured as to minimize
adverse tax consequences to Executive.
Additional options may be granted by Compensation Committee of
the
Board of Directors of FBO at its
discretion.
5.
Termination of Employment.
a. Death
and Disability. Executive's employment under this Agreement
will
terminate immediately upon his death and
upon 30 days' prior written notice
given by the Company in the event Executive
is determined to be "permanently
disabled" (as defined below).
b. For
Cause. The Company may terminate Executive's employment under
this
Agreement for "Cause" (as defined below),
upon providing Executive 30 days'
prior written notice of termination, which
notice will describe in detail the
basis of such termination and will become
effective on the 30th day after
Executive's receipt thereof unless
Executive cures the alleged violation or
other circumstance which was the basis of
such termination within such 30-day
notice period; provided, however, that the
termination for "Cause" under
subparagraphs 5(f)(ii)(B)-(F) thereof shall
be effective immediately upon the
giving of the notice of termination and may
not be cured by any act or event.
E-68
<PAGE>
c. For
Good Reason. Executive may terminate his employment under this
Agreement for "Good Reason" (as defined
below) upon providing the Company 30
days' prior written notice of termination,
which notice will detail the basis of
such termination and will become effective
on the 30th day after the Company's
receipt thereof, unless the Company cures
the alleged violation or other
circumstance which was the basis of such
termination within such 30-day notice
period.
d. Without
Cause. The Company may terminate Executive's employment under
this Agreement without "Cause" at any time
upon ten (10) days written notice to
the Executive.
e. Change
of Control. Notwithstanding anything to the contrary, the
Company or Executive may terminate this
Agreement upon ten (10) days' notice to
the other party upon the occurrence of a
"Change of Control" (as defined below).
f.
Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he
becomes
unable to discharge his normal duties as
contemplated under this Agreement for
at least eight aggregate weeks during any
four-month period as a result of
incapacity due to mental or physical
illness as determined by a physician
acceptable to Executive and the Company and
paid by the Company, whose
determination will be final and binding. If
Executive and the Company are unable
to agree on a physician, Executive and the
Company will each choose one
physician who will mutually choose the
third physician, whose determination will
be final and binding.
(ii) "Cause" means either (A) a breach by Executive of any
material
provisions of this Agreement, but only if,
after notice provided in subparagraph
(b) above, Executive fails to cure such
breach; (B) conviction of a felony
offense, whether or not such offense was
committed in connection with the
Company's business; (C) theft,
embezzlement, false entries on records,
misapplication of funds or property,
misappropriation of any asset, or any
actual or constructive fraud; (D) gross
neglect of duty and/or willfully
engaging in gross misconduct materially and
demonstrably injurious to the
Company; (E) at any time during employment
at the Company, imparting
confidential information, whether
proprietary or non-proprietary, to any person
other than (i) an authorized employee of
the Company; or (ii) as required by
law, or (iii) as part of a privileged
communication to an attorney; or (F)
receiving, during the term of this
Agreement, compensation, income, anything of
value, or a future interest in or future
entitlement to compensation, income or
a thing of value, from any person or entity
who or which is engaged in the same
or substantially the same business as the
Company in the same product, service
or geographical market, except stock
dividends and/or capital gains from passive
investments in financial institutions by
Executive made in the ordinary course
of business and as part of Executive's
investment portfolio.
E-69
<PAGE>
(iii)
"Good Reason" means a breach by the Company of any of its
material obligations under this Agreement,
but only if after expiration of the
30-day notice period provided in
subparagraph (c) above, the Company fails to
cure such breach.
(iv) "Change of Control" means the occurrence of:
(a) the sale by FBO of all or substantially all of its assets
to a single purchaser or to a group of
associated purchasers;
(b) the merger or consolidation of FBO in a transaction in
which the
