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EXHIBIT 10.28
AMENDED AND RESTATED
MANAGEMENT COMPENSATION AGREEMENT
(CHIEF EXECUTIVE OFFICER)
BETWEEN
PINNACLE AIRLINES, INC.
AND
PHILIP H. TRENARY
DATED AS OF
AUGUST 11, 2005
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Amended and Restated Management Compensation Agreement
for the Chief Executive Officer
of
Pinnacle Airlines, Inc.
This
Amended and Restated Management Compensation Agreement (the
"Agreement") is made, entered into, and
effective as of January 1, 2005, by and
between Pinnacle Airlines, Inc. a Delaware
corporation ("Company") and Philip H.
Trenary ("Executive").
RECITALS
Executive
is currently employed by Company pursuant to the terms of that
certain Management Compensation Agreement
dated January 14, 2003; and
Company
and Executive wish to continue that employment relationship and
to
amend and restate the terms and conditions
of such employment and compensation.
NOW,
THEREFORE, in consideration of the mutual promises and
agreements
contained herein, Company and Executive,
intending to be legally bound, hereby
agree as follows.
1. Terms of
Employment.
1.1
Employment. Company agrees to continue to employ Executive, and
Executive agrees to continue to serve
Company, on the terms and conditions set
forth herein.
1.2
Position and Duties. During the term of Executive's employment
hereunder, Executive shall continue to
serve as Chief Executive Officer of
Company and shall have such powers and
duties as on the Effective Date or such
other powers and duties as may from time to
time be prescribed by the Board of
Directors. Executive shall devote
substantially all his working time and effort
to the business and affairs of Company and
its affiliates.
2. Compensation.
2.1 Base
Salary. Executive's Base Salary shall be his base salary in
effect on the Effective Date, as modified
thereafter by the Board. Executive's
Base Salary shall be payable in accordance
with Company's payroll policies.
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2.2.
Incentive Compensation Programs. In addition to Base Salary,
Executive shall continue while employed
hereunder to participate in Company's
incentive compensation programs (including
any Bonus Plan and any successor
programs) at levels in effect on the
Effective Date or such other levels
established from time to time by the Board
(the "Incentive Compensation
Programs"), whether such Incentive
Compensation is (i) made available in cash,
securities, other property or rights (ii)
annual or long term, or (iii)
generally available to employees or
executive employees of Company, or
specifically available to Executive, except
that Executive shall participate
only to the extent such Incentive
Compensation Program is specifically provided
for in this Agreement or Attachment "A"
hereto (including any future
amendments).
2.3
Expenses. During the term of Executive's employment hereunder,
Executive shall be entitled to receive
prompt reimbursements for all reasonable
expenses incurred in performing services
hereunder, provided that Executive
properly accounts therefor in accordance
with Company policy.
2.4
Benefit Programs. During the term of his employment, Company
shall
provide Executive with the same benefits
that it provides generally to its other
employees or specifically to its executive
employees, including but not limited
to life, medical, and dental insurance,
pension, vacation, bonus, profit-sharing
and savings plans and similar benefits, as
such plans and benefits may be
adopted, modified or eliminated by Company
from time to time.
2.5
Indemnification and Insurance. Company shall indemnify Executive
with
respect to matters relating to Executive's
services as an officer and/or
director of Company or any of its
Affiliates to the extent set forth in
Company's Bylaws as amended from time to
time and in accordance with the terms
of any other indemnification which is
generally applicable to executive officers
of Company or of its Affiliates that may be
provided by Company or any such
Affiliate from time to time. The foregoing
indemnity is contractual and will
survive any adverse amendment to or repeal
of the Bylaws. Company shall also
cover Executive under any policy of
officers' and (if Executive is a director at
the relevant time) directors' liability
insurance provided that such coverage is
comparable to that provided currently or
hereafter to any other executive
officer or (if Executive is a director at
the relevant time) director of
Company. The provisions of this Paragraph
2.5 shall survive termination of
Executive's employment, unless the
termination is by Company for Cause.
3. Termination of
Employment.
3.1 Upon
Death. Executive's employment hereunder shall terminate upon
his
death.
3.2 By
Company. Company may terminate Executive's employment hereunder
at
any time with or without Cause.
3.3 By
Executive. Executive may terminate his employment hereunder at
any
time for any reason.
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3.4 Notice
of Termination, Payments. Any termination of Executive's
employment hereunder (other than by death)
shall be communicated by thirty (30)
days' advance written Notice of Termination
by the terminating party to the
other party to this Agreement; provided
that no Notice of Termination is
required in advance if the Executive is
terminated by Company for Cause.
4. Payments in the Event
of Termination of Employment.
4.1
Payments in the Event of Termination by Company for Cause or
Voluntary
Termination by Executive. If Executive's
employment hereunder is terminated by
Company for Cause, as a result of death or
Disability, or by Executive other
than for Good Reason, Company shall pay
Executive (a) his accrued and unpaid
Base Salary through the Date of Termination
and (b) any vested or accrued and
unpaid payments, rights or benefits
Executive may be otherwise entitled to
receive pursuant to the terms of any
retirement, pension or other employee
benefit or compensation plan (but not any
Incentive Compensation Program)
maintained by Company at the time or times
provided therein.
4.2
Payments in the Event of Termination by Company other than for
Cause
or by Executive for Good Reason. If
Executive's employment hereunder is
terminated by Company other than for Cause,
or by Executive for Good Reason:
(a)
Company shall pay Executive (i) his accrued and unpaid Base
Salary
through the Date of Termination, (ii) any
accrued and unpaid bonus or additional
compensation under any annual bonus plan
(the "Incentive Bonus") for any
calendar year ended before the Date of
Termination, (iii) a pro rata share
(based on days employed during the
applicable year) of any unpaid Incentive
Bonus Executive would otherwise have
received with respect to the year in which
the Date of Termination occurs, payable at
the time the Incentive Bonus would
otherwise be payable to Executive;
provided, however, that 100% of the Incentive
Bonus shall be determined solely with
reference to the actual financial
performance of Company for the full year
(based on the goals previously
established with respect thereto) (rather
than a portion of the Incentive Bonus
determined on the basis of individual
performance), if there are such financial
goals previously established; provided,
further, in the event that no Company
financial performance goals have been
established for such year, then that
portion of the Incentive Bonus that would
have (but for this Section 4.2(a))
related to the achievement of the
individual performance target shall be deemed
to have been fully achieved and shall
determine 100% of the Incentive Bonus
potential, and (iv) any vested or accrued
and unpaid payments, rights or
benefits Executive may be otherwise
entitled to receive pursuant to the terms of
any written retirement, pension or other
employee benefit or compensation plan
maintained by Company at the time or times
provided therein.
(b) In
addition to the compensation and benefits described in Section
4.2(a):
(i) Company
shall pay Executive, in substantially equal
installments at Executive's regular pay intervals in effect
prior to such termination, over a period of twenty-four (24)
months beginning no later than the first regular Company
payroll payment date (the
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"First Severance Payment Date") on or following the later of
(x) thirty (30) days following Executive's termination of
employment and (y) the lapse of any right of Executive to
revoke the general release he will have signed substantially
(as determined by counsel to Company) in the form attached
hereto as Attachment "B" (the "General Release"), an aggregate
amount equal to two (2.0) (the "Multiple") times the sum of
(i) Executive's annual Base Salary and (ii) the target
Incentive Bonus for Executive with respect to the year in
which the Date of Termination occurs (or if no target has been
set for that year, the target Incentive Bonus for the most
recent
year in which a target Incentive Bonus was in effect).
(ii) Until the earlier
of the second anniversary of Executive's
Date of Termination or the date Executive is employed by a new
employer, the Executive, his dependents, beneficiaries and
estate shall be entitled to all benefits under Company's group
medical and dental insurance plans as if the Executive were
still employed by Company hereunder during such period.
(iii) On the Date of Termination Executive's rights under any
compensation or benefits programs shall become vested and any
restrictions on stock options or contractual rights granted to
Executive shall be removed.
(c)
Executive shall not be required to mitigate the amount of any
payment
provided for in this Section 4.2 by seeking
other employment or otherwise, and
no such payment shall be offset or reduced
as a result of Executive obtaining
new employment.
(d)
Notwithstanding anything else to the contrary in this
Agreement,
Company's obligation regarding the
payments, benefit continuation and
acceleration provided for in Section
4.2(b)(i), (ii) and (iii) is expressly
conditioned upon the execution, delivery
and non-revocation of the General
Release.
4.3 Payment in the Event of
Termination Upon Change in Control of Company.
(a) In
addition to Company's payment and benefits obligations to
Executive
upon events described in Section 4.2, if
Executive remains employed by Company
for the six-month period following the
Change in Control, then, during the
thirty (30) days following that six-month
period, Executive shall be entitled to
terminate his employment without Good
Reason, and upon any such termination
Company shall be obligated to make the
payments and provide the benefits to
Executive as set forth in Section 4.2,
except that the aggregate amount payable
pursuant to the Multiple shall be paid in a
lump sum on the First Severance
Payment Date.
(b)
Nothing set forth in Section 4.3(a) is intended or shall be
construed
to limit Executive's right to terminate his
employment for Good Reason during
the aforementioned six month period or to
limit Company's obligation to make the
payments or provide the benefits set forth
in Section 4.2 upon events described
in Section 4.2.
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(c) Executive shall not be required to mitigate the amount of
any
payment
provided for in this Section 4.3 by seeking other employment or
otherwise,
and no such payment shall be offset or reduced as a result of
Executive
obtaining new employment.
4.4.
Transfer of Insurance Policies Upon Termination.
Upon
termination of Executive's employment by Company or by
Executive,
Company shall transfer to Executive the
transferable ownership of any Company
owned insurance policy or policies on the
life of Executive. Executive shall be
solely responsible for the payment of any
premiums due after the Date of
Termination.
5.
Board/Committee Resignation.
Executive's termination of employment for any reason, shall
constitute, as
of the date of such termination and to the
extent applicable, a resignation as
an officer of Company and a resignation
from the Board (and any committees
thereof) and the Board of Directors (and
any committees thereof) of any of
Company's affiliates and from the board of
directors or similar governing body
of any corporation, limited liability
company or other entity in which Company
or any affiliate holds an equity interest
and with respect to which board or
similar governing body Executive serves as
Company's or such affiliate's
designee or other representative.
6.
Confidentiality, Non-Competition, Non-Solicitation,
Non-disparagement.
(a) Confidentiality. While employed by Company and thereafter,
Executive
shall not disclose any Confidential Information either directly
or
indirectly, to anyone (other than appropriate Company employees
and
advisors),
or use such information for his own account, or for the account
of any
other person or entity, without the prior written consent of
Company or
except as required by law. This confidentiality covenant has no
temporal
or geographical restriction. For purposes of this Agreement,
"Confidential Information" shall mean all non-public
information
respecting
Company's business, including, but not limited to, its
services,
pricing, scheduling, products, research and development,
processes,
customer lists, marketing plans and strategies, and financing
plans, but
excluding information that is, or becomes, available to the
public
(unless such availability occ
