Exhibit 10.1
RETIREMENT AND NON-COMPETE
AGREEMENT
This Retirement and Non-Compete
Agreement (“Agreement”), is made this 31st day of
August 2005, by and between George D. Bagley
(“Executive”), an individual, and Alaska Airlines, Inc.
(“Alaska”), an Alaska corporation that is a wholly
owned subsidiary of Alaska Air Group, Inc. (“AAG”), a
Delaware corporation.
WHEREAS, Executive is presently the
Executive Vice President/Operations of Alaska, and he and Alaska
are parties to that certain Employment Agreement dated January 30,
2002 (“the Employment Agreement”),
WHEREAS, Alaska and Executive both
desire that Executive should provide transition consulting services
to Alaska for a period of time following his retirement from
Alaska,
NOW, THEREFORE, Alaska and
Executive, in consideration of the covenants undertaken and the
releases below, enter into this Agreement:
1. Voluntary Retirement .
Executive shall retire from his position as Executive Vice
President/Operations and as an employee of Alaska in any other
capacity by executing Exhibit A attached hereto, such retirement to
be effective January 1, 2006, (“the Retirement Date”),
and Executive is deemed to have provided full and satisfactory
notice of voluntary separation from Alaska in accordance with
Section 5.3 of the Employment Agreement.
2. Separation Benefits . In
addition to any vested retirement benefits to which Executive has
contributed and/or the Company has contributed on Executive’s
behalf, Alaska shall provide to Executive the following separation
benefits on and following the Retirement Date:
a. Retirement Date Payments .
On his Retirement Date, Executive will receive a final paycheck
representing all unpaid salary earned through the Retirement Date
and a lump-sum payment equal to six weeks base pay which represents
all accrued but unused vacation.
b. Retirement Bonus . On his
Retirement Date, Alaska shall pay to Executive a retirement bonus
equal to a sum of $150,000, less all standard withholdings and
authorized deductions, if Executive has not previously revoked this
Agreement.
c. Performance-Based Pay Plan
. You will be eligible for a 2005 Performance-Based Pay
(“PBP”) payout, if any, based on your 2005 base wages
earned through your last day worked.
d. Stock Options and Restricted
Stock Units . Your Stock Options and Restricted Stock Units
will continue to vest through your last day worked. If you choose
to retire immediately following your last day on the active
payroll, additional vesting time and time to exercise your options
will be as set forth in your option agreements for a retiring
officer.
3. Consulting Obligations .
Executive agrees to execute the Consulting Agreement in the form
attached hereto as Exhibit B and provide Consulting Services to the
Company in accordance with the terms and conditions of the
Consulting Agreement. In the event that Executive revokes this
Agreement pursuant to Section 7(d), the Consulting Agreement shall
also be revoked.
4. Agreement Inadmissible .
Neither this Agreement nor anything in this Agreement shall be
construed to be or shall be admissible in any proceeding as
evidence of or an admission by Alaska of any violation of its
policies, procedures, state or federal laws or regulations. This
Agreement may be introduced, however, in any proceeding to enforce
the Agreement. Such introduction shall be pursuant to an order
protecting its confidentiality.
5. General Release and Covenant
Not To Sue . Except for those obligations created by or arising
out of this Agreement, Executive on behalf of himself, his
descendants, dependents, heirs, executors, administrators, assigns,
and successors, and each of them, hereby covenants not to sue and
fully releases and discharges Alaska, and its parent, subsidiaries
and affiliates, past and present, and each of them, as well as its
and their trustees, directors, officers, agents, attorneys,
insurers, employees, stockholders, representatives, assigns, and
successors, past and present, and each of them, hereinafter
together and collectively referred to as “Releasees,”
with respect to and from any and all claims, wages, demands,
rights, liens, agreements, contracts, covenants, actions, suits,
causes of action, obligations, debts, costs, expenses,
attorneys’ fees, damages, judgments, orders and liabilities
of whatever kind or nature in law, equity or otherwise, whether now
known or unknown, suspected or unsuspected, and whether or not
concealed or hidden, which he now owns or holds or he has at any
time heretofore owned or held or may in the future hold as against
said Releasees, including any claims arising out of or in any way
connected with his employment relationship with Alaska, or his
voluntary retirement from the same, or any other transactions,
occurrences, acts or omissions or any loss, damage or injury
whatever, known or unknown, suspected or unsuspected, resulting
from any act or omission by or on the part of said Releasees, or
any of them, committed or omitted prior to the date of this
Agreement including, without limiting the generality of the
foregoing, any claim under Title VII of the Civil Rights Act of
1964 (as amended), the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act
of 1993, the Washington Law Against Discrimination, the Washington
Age Discrimination Law, or any claim for severance pay, bonus, sick
leave,
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holiday pay, vacation pay, life insurance,
health or medical insurance or any other fringe benefit.
6. Release of Unknown Claims
. It is the intention of Executive in executing this Agreement that
the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove specified. In furtherance of
this intention, Executive hereby expressly waives any and all
rights and benefits conferred upon him by any law, statute, or
legal doctrine that would otherwise prevent the release of unknown
claims and expressly consents that this Agreement shall be given
full force and effect according to each and all of its express
terms and provisions, including those related to unknown and
unsuspected claims, demands and causes of action, if any, as well
as those relating to any other claims, demands and causes of action
hereinabove specified. Executive acknowledges that he may hereafter
discover claims or facts in addition to or different from those
which Executive now knows or believes to exist with respect to the
subject matter of this Agreement and which, if known or suspected
at the time of executing this Agreement, may have materially
affected this settlement. Nevertheless, Executive hereby waives any
right, claim or cause of action that might arise as a result of
such different or additional claims or facts. Executive
acknowledges that he understands the significance and consequence
of such release and waiver.
7. Federal Age Discrimination in
Employment Act Waiver and Advisements . Executive expressly
acknowledges and agrees that, by entering into this Agreement, he
is waiving any and all rights or claims that he may have arising
under the Age Discrimination in Employment Act of 1967, as amended,
which have arisen on or before the date of execution of this
Agreement. Executive further expressly acknowledges and agrees
that:
a. In return for this Agreement, he
will receive compensation beyond that which he was already entitled
to receive before entering into this Agreement;
b. He was orally advised by Alaska
and is hereby advised in writing by this Agreement to consult with
an attorney before signing this Agreement;
c. He was given a copy of this
Agreement on August 31, 2005, and informed that he had 21 days
within which to consider the Agreement; and
d. He was informed that he has seven
(7) days following the date of execution of the Agreement in which
to revoke the Agreement.
8. Confidential and Proprietary
Information . Executive acknowledges that by reason of his
position with Alaska he is aware of and has been given access to
inventions, concepts, designs, processes, technologies, trade
secrets, customer lists, marketing plans, business plans, and
embodiments of the same, and other forms of confidential
and
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proprietary information, whether or not
developed by Executive. Executive agrees promptly to return all
documents, data and other materials of whatever nature, including,
without limitation, drawings, specifications, research, reports,
embodiments, software and manuals to Alaska which pertain to Alaska
and shall not retain or cause or allow any third party to retain
photocopies or other reproductions of the same. Executive further
represents that he has held all such information confidential and
will continue to do so, and that he will not use such information
and relationships for any business (which term herein includes a
partnership, firm, corporation or any other entity) without the
prior written consent of Alaska.
9. Non-Competition .
Executive acknowledges and re-affirms his obligations under Section
7.2 of the Employment Agreement, which, as quoted below, survive
the execution of this Agreement:
“Executive agrees that he will
not, directly or indirectly, during his employment and for a period
of one (1) year from the date on which his employment with Alaska
terminates for any reason, be employed by, consult with or
otherwise perform services for, awn, manage, operate, join, control
or participate in the ownership, management, operation or control
of or be connected with, in any manner, any Competitor. A
“Competitor” shall include, (a) any entity which
provides air transportation services anywhere in the world, and (b)
any business whose efforts are in competition with the efforts of
the company, including, without limitation, any business whose
efforts involve any research and development, products or services
in competition with products or services which are, during or at
the end of the Term, either (i) produced, marketed or otherwise
commercially exploited by the Company or (ii) in actual or
demonstrably anticipated research or development by the Company,
unless released from such obligation in writing by Alaska’s
Board of Directors. Executive shall be deemed to be related to or
connected with a Competitor if such Competitor is (x) a partnership
in which he is a general or limited partner or employee, (y) a
corporation or association of which he is a shareholder, officer,
employee or director, or (z) a partnership, corporation or
association of which he is a member, consultant or agent; provided,
however, that nothing herein shall prevent the purchase or
ownership by Executive of shares which constitute less than five
percent of the outstanding equity securities of a publicly or
privately held corporation, so long as Executive has no other
relationship with such corporation.”
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10. Non-Solicitation .
Executive acknowledges and re-affirms his obligations under Section
7.3 of the Employment Agreement, which, as quoted below, survive
the execution of this Agreement:
“Executive shall not, during
his employment and for a period of one (1) year from the date on
which his employment with Alaska terminate for any reason, directly
or indirectly solicit, influence or entice, or attempt to solicit,
influence or entice, any employee or consultant of Alaska to cease
his or her relationship with Alaska or solicit, influence, entice
or in any way divert any customer, distributor, partner, joint
venturer or supplier of Alaska to do business or in any way become
associated with any Competitor. This Section 7.3 shall apply during
the time period and geographical area described in Section 7.2
hereof.”
11. Cooperation with
Investigations . Nothing in this Agreement limits, restricts or
precludes either Alaska or Executive from cooperating with any
governmental agency in the performance of its investigative or
other lawful duties. Further, Executive agrees to cooperate fully
with the Company, including but not limited to the prosecution or
defense of any civil or criminal action or other legal proceedings
in which the Company determines that Executive has relevant
information or knowledge. Such cooperation shall include, without
limitation, communicating with representatives (including
attorneys) for Alaska, providing truthful testimony in oral or
written form, preparing for such testimony with attorneys for
Alaska, and reviewing documents in connection with such
communications or preparations; provided, however , that the
foregoing shall not be deemed to require Executive to waive any
Fifth Amendment or other privilege with respect to events that
occurred during Executive’s tenure at the Company or
otherwise.
12. Full Payment of Compensation
Due and Owing . Executive agrees that the payments described in
paragraphs 2, 3, and 11 above are the sole and exclusive
compensation to which he is entitled from Alaska or any other of
the Releasees, and acknowledges that the payments described in said
paragraphs fully satisfy any salary, wages, bonuses, accrued
vacation, commissions, severance benefits, and any and all other
benefits due to Executive.
13. No Assignments .
Executive warrants and represents that he has not heretofore
assigned or transferred to any person not a party to this Agreement
any released matter or any part or portion thereof and shall
defend, indemnify and hold harmless Releasees from and against any
claim (including the payment of attorneys’ fees and costs
actually incurred whether or not litigation is commenced) based on
or in
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connection with or arising out of any such
assignment or transfer made, purported or claimed.
14. No Disparagement .
Executive agrees that he shall not make any disparaging,
uncomplimentary or negative remarks about Alaska, AAG, or their
products, business affairs or employees.
15. End of Employment
Relationship . Executive and Alaska acknowledge that any
employment relationship between them terminated on the Retirement
Date, and that they have no continuing contractual relationship
except as expressly provided in this Agreement.
16. Taxes . Executive agrees
that he shall be exclusively liable for the payment of all federal
and state taxes which may be due as the result of the consideration
received herein and hereby represents that he shall make payments
on such t
