|
Exhibit 10.28
SECOND AMENDED AND RESTATED MANAGEMENT COMPENSATION
AGREEMENT (Chief Executive Officer) between
PINNACLE AIRLINES, INC. and PHILIP H. TRENARY
dated as of December 12, 2008
Second Amended and Restated Management Compensation
Agreement for the Chief Executive Officer of
Pinnacle Airlines, Inc. This Second Amended and Restated
Management Compensation Agreement (the "Agreement") is made,
entered into, and effective as of December 12 2008, 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, as amended and restated as of August 11,
2005; 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.
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.
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, and Executive experiences a Separation
From Service: (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)
|
In the event of Executive’s involuntary Separation From
Service by Company action other than for Cause or Separation From
Service by Executive for Good Reason, Company shall pay Executive,
in substantially equal installments at Executive's regular pay
intervals in effect prior to such Separation From Service, over a
period of twenty-four (24) months beginning no later than the first
regular Company payroll payment date (the "First Severance Payment
Date") which occurs within thirty (30) days following the later of
(x) Executive's Separation From Service 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",
which General Release must be executed within twenty one (21) days
following the Separation From Service for any such amount to be
payable), 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 Separation From Service 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
Separation From Service 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, with
benefits or premium payments, as applicable, to be paid with the
same frequency and at the same time as applies for active employees
of the Company.
|
|
|
(iii)
|
On the date of Separation From Service, 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.
|
|
|
(iv)
|
Notwithstanding any other provision of this Agreement to the
contrary, in the case of any compensation which is subject to Code
Section 409A, if the Executive is a Specified Employee at the time
of a Separation From Service and the payment or provision of such
compensation is made as a result of the Separation From Service,
then no portion of such benefits or other such compensation shall
be made before the date that is six (6) months after the date of
the Separation from Service or, if earlier, the date of death of
the Specified Employee. Any compensation which would
otherwise be paid within such six (6) month period after a
Separation From Service shall be paid on the date which is six (6)
months and one day after the Separation From Service, or the first
business day thereafter. The provisions and application
of this paragraph will be construed and applied in a manner
consistent with Code Section 409A and Treasury Regulations of other
guidance issued thereunder.
|
(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 as a Separation From Service without Good
Reason, and upon any such Separation From Service 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. (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 in a
Separation From Service by Company or by Executive, then within
seventy five (75) days after the Separation From Service 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 or Separation From
Service 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 Informat
|
