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EXHIBIT 10.1
March 22, 2000
Mr. Jonathan G. Ornstein
4840 Grandview Lane
Phoenix, AZ 85018
Re: Amendment to Employment Agreement
Dear Jonathan:
This letter constitutes an amendment to the Employment Agreement dated as of
March 13, 1998 between Mesa Air Group, Inc. (the "Company") and you (the
"Employment Agreement").
Section 7.4(i) of the Employment Agreement is hereby amended by deleting the
first sentence thereof and replacing it with the following:
"The Executive shall be entitled to terminate his employment hereunder for
Good Reason immediately upon, or at any time within one-year after, the
occurrence of an event constituting Good Reason."
Section 7.4(i) of the Employment Agreement is also hereby amended by deleting
clause (6) thereof and replacing it with the following:
"(6) a Change in Control (as hereinafter defined), provided in no event
shall the Executive be deemed to have given his consent to any Change of
Control;".
Section 7.4(ii)(6) of the Employment Agreement is hereby deleted and replaced
with the following:
"(6) The shareholders of the Company approve a merger or consolidation
involving the Company (A) in which the Company is not the surviving
corporation or (B) if, immediately following such merger or consolidation,
less than seventy-five percent (75%) of the surviving corporation's
outstanding voting stock is held or is anticipated to be held by persons
who are stockholders of the Company immediately prior to such merger or
consolidation."
Section 7.5 of the Employment Agreement is hereby amended and supplemented by
adding the following to end thereof:
"In addition, and notwithstanding the terms of any stock option, stock
incentive or similar plan maintained by the Company or any other agreement
between the Company and Executive (including, without limitation, any
stock option agreement), upon termination of the Executive's employment
Without Good Cause or upon the exercise by the Executive of his rights to
terminate his employment for Good Reason (including without limitation
upon or following a Change in Control), the Company shall make a lump sum
cash payment to Executive as follows:
(i) If the Executive's employment is terminated by the Company
Without Good Cause or by Executive for Good Reason, in each case, upon or
following a Change in Control transaction in which the holders of
Company's common stock receive consideration for their shares (either in
the form of cash or securities, property or a combination thereof), the
cash payment to Executive shall be made on the closing date of the
transaction constituting the Change in Control and shall equal the greater
of (A) the aggregate Black Scholes value as of such closing date of all
options held by the Executive to acquire shares of the common stock of the
Company ("Company Options") and (B) the product of (i) the per share
consideration (the value of which shall be determined by agreement between
the
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Company and Executive) to be paid to a holder of a share of the Company's
common stock minus the exercise price per share of each Company Option
held by Executive and (ii) the number of shares of common stock of the
Company covered by each unexercised Company Option held by Executive;
provided, however, that the total aggregate cash payment to be made to
Executive pursuant to this Section 7.5 shall not in any event be less than
$4,000,000.
(ii) If the Executive's employment is terminated by the Company
Without Good Cause or by Executive for Good Reason, in each case, in
circumstances other than those applicable to clause (i) above, the cash
payment to Executive shall be made on the date of termination or the date
of the event giving rise to Executive's right to terminate his employment
(whichever is earlier) and shall equal the aggregate Black Scholes value
as of such earlier date of all Company Options held by the Executive."
The following new Section 7.7 is added to the Employment Agreement following
Section 7.6:
"7.7 Consulting Agreement. If the Executive's employment is terminated by
the Company Without Good Cause or by Executive for Good Reason, on the
effective date of the termination, the Company and Executive shall enter
into a consulting agreement in the form of Exhibit A hereto.
Section 11.1 of the Employment Agreement is hereby amended and supplemented by
adding, immediately following clause (4) thereof, the following new clause (5):
", or (5) any benefit or payment under Section 7.5."
This letter does not constitute a consent or waiver to or modification of any
other provision, term or condition of the Employment Agreement, all of which
remain in full force and effect.
If the foregoing meets with your approval, please indicate your acceptance of
the terms set forth in this letter by signing in the space provided below and on
the enclosed copy and by returning the copy to us for our records.
Very truly yours,
MESA AIR GROUP, INC.
By:
/s/ Andre H. Merrett
Title: Vice President, General Counsel & Secretary
Accepted and agreed:
/s/ Jonathan G. Ornstein
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EXHIBIT A
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement") made and entered
________ ___, ____, (the "Effective Date"), between Mesa Air Group, Inc., a
Nevada Corporation (the "Company"), with its principal place of business at 410
North 44th Street, Phoenix, Arizona 85008, and Jonathan G. Ornstein
("Consultant"), residing at Building 116, Melsbroek Airport, 1820 Melsbroek,
Belgium
WHEREAS, Consultant's employment with the Company terminated
as of ______ __, _____.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the parties agree as
follows:
RETENTION AS CONSULTANT.
The Company hereby retains Consultant as a consultant to the Company.
Section 1.01 Services. Consultant shall render general
management consulting services ("Services") to the Company as may reasonably be
requested of him from time to time by the Company's Board of Directors.
Consultant shall have no minimum hourly service requirement nor will Consultant
be required to devote substantially all his time and attention to matters
concerning the Company. Except as may be specifically agreed to by the Company,
Consultant shall pay his own expenses relating to his performance of this
Agreement.
Section 1.02 Performance. Upon reasonable notice, Consultant
shall perform such Services in Phoenix, Arizona or such other location as the
parties may mutually agree.
Section 1.03 Term. The term of this Agreement shall expire as
of the close of business on the tenth anniversary of the date hereof, unless
sooner terminated as hereinafter set forth.
Section 1.04 Payment. Consultant shall be entitled to be
compensated at the rate of $[50,000] per annum, payable in semi-annual
installments. The compensation set forth above shall be the sole compensation
payable to Consultant for his performance hereunder.
Section 1.05 Other Benefits. During the term of this
Agreement, the Company shall provide Consultant with life and health insurance
benefits and perquisites substantially similar to those which Consultant was
receiving immediately prior to the date hereof. Life and health insurance
coverage provided by the Company will terminate automatically upon Consultant's
employment with any other entity which provides life and health insurance
coverage. The Company and its affiliated airlines will grant Consultant and his
spouse lifetime passes for positive space travel. Consultant will not be
entitled to receive any vacation or illness payments, or to participate in any
plans, arrangements, or distributions by the Company pertaining to any bonus,
profit sharing, or similar benefits for the Company's employees.
RELATIONSHIP OF PARTIES
Section 1.06 Independent Contractor. Consultant is an
independent contractor and is not an agent or employee of, and has no authority
to bind, the Company by contract or otherwise. Consultant will perform the
Services under the general direction of the Board of Directors of the Company,
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but Consultant will determine, in Consultant's sole discretion, the manner and
means by which the Services are accomplished, subject to the requirement that
Consultant shall at all times comply with applicable law. The Company has no
right or authority to control the manner or means by which the Services are
accomplished. Any employee, independent contractor or agent used by Consultant
in the course of performing the Services hereunder is the sole responsibility of
Consultant.
Section 1.07 Employment Taxes. Consultant will report as
self-employment income all compensation received by Consultant pursuant to this
Agreement. Consultant will indemnify the Company and hold it harmless from and
against all claims, damages, losses and expenses, including reasonable fees and
expenses of attorneys and other professionals, relating to any obligation
imposed by law on the Company to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in connection with
compensation received by Consultant pursuant to this Agreement.
CONFIDENTIAL INFORMATION
Consultant acknowledges that Consultant may have heretofore
acquired or may hereafter acquire information and materials from the Company and
knowledge about the business, products, customers, consultants, advisors and
suppliers of the Company and that all such knowledge, information and materials
acquired, the existence, terms and conditions of this Agreement, and the content
are and will be the trade secrets and confidential and proprietary information
of the Company (collectively, "Confidential Information"). Confidential
Information will not include, however, any information that is or becomes part
of the public domain through no fault of Consultant or that the Company
specifically designates as non-confidential. Consultant agrees to hold all such
Confidential Information in strict confidence, not to disclose it to others or
use it in any way, commercially or otherwise, except in performing the Services,
and not to allow any unauthorized person access to it, either before or after
expiration or termination of this Agreement. Consultant further agrees to take
all action reasonably necessary and satisfactory to protect the confidentiality
of the Confidential Information, including, without limitation, physically
securing any Confidential information that comes into Consultant's possession
from time to time.
INDEMNIFICATION BY CONSULTANT
Consultant will indemnify the Company and hold it harmless
from and against all claims, damages, losses and expenses, including court costs
and reasonable fees and expenses of attorneys, expert witnesses, and other
professionals, arising out of or resulting from, and, at the Company's option,
Consultant will defend the Company against any action by a third party that is
based on any negligent act or omission or intentional misconduct of Consultant
which results in: (a) any bodily injury or death; (b) any injury or destruction
to tangible or intangible property or any loss of use resulting therefrom; or
(c) any violation of any statute, ordinance or regulation.
TERMINATION AND EXPIRATION
Section 1.08 Breach. Either party may terminate this Agreement
in the event of a material breach by the other party of this Agreement if such
breach continues uncured for a period of ten (10) days after written notice.
Section 1.09 At Will. The Company may terminate this Agreement at any time, for
any reason or no reason, by written notice to Consultant. In the event the
Company terminates this Agreement for any reason other than for breach of
Section 3 or Subsection 5.1 herein, Consultant shall be entitled to receive
payment hereunder until the earlier of the expiration of the term of this
Agreement or Consultants death.
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Section 1.10 Expiration. Unless terminated earlier, this
Agreement will expire at the end of the period of consultancy.
Section 1.11 No Election of Remedies. The election by the
Company to terminate this Agreement in accordance with its terms shall not be
deemed an election of remedies, and all other remedies provided by this
Agreement or available at law or in equity shall survive any termination.
EFFECT OF EXPIRATION OR TERMINATION
Section 1.12 Survival of Obligations. Upon the expiration or
termination of this Agreement for any reason, each party will be released from
all obligations to the other arising after the date of expiration or
termination, except that expiration or termination of this Agreement will not
relieve Consultant of its obligations under Section 3 above nor will expiration
or termination relieve Consultant or the Company from any liability arising from
any breach of this Agreement.
Section 1.13 Return of Confidential Information. Upon the
expiration or termination of this Agreement for any reason, Consultant will
promptly notify the Company of all Confidential Information, including, but not
limited to, the content in Consultant's possession and, in accordance with the
Company's instructions, will promptly deliver to the Company all such
Confidential Information.
COVENANTS
Section 1.14 Solicitation of Employment. Consultant agrees
that it will not solicit the services of any of the employees, consultants,
advisors, suppliers or customers of the Company for the Period of Consultancy
and for six (6) months thereafter without the prior written consent of the
Company.
Section 1.15 Time of Performance. Consultant represents and
warrants that Consultant has performed all Services during Consultant's free
time and in no event has Consultant performed the Services during the course of
Consultant's work as an employee, consultant, independent contractor or
otherwise with any independent third party.
GENERAL
Section 1.16 Assignment. Consultant may not assign
Consultant's rights or delegate Consultant's duties under this Agreement, either
in whole or in part, without the prior written consent of the Company. Any
attempted assignment or delegation without such consent will be void.
Section 1.17 Equitable Remedies. Because the Services are
personal and unique and because Consultant will have access to Confidential
Information of the Company, the Company will have the right to enforce this
Agreement and any of its provisions by injunction, specific performance, or
other equitable relief without the need to post a bond or other security,
without prejudice to any other rights and remedies that the Company may have for
a breach of this Agreement.
Section 1.18 Attorneys' Fees. If any action is necessary to
enforce the terms of this Agreement, the substantially prevailing party will be
entitled to reasonable attorneys' fees, costs and expenses in addition to any
other relief to which such prevailing party may be entitled.
Section 1.19 Governing Law; Severability. This Agreement will
be governed by and construed in accordance with the laws of the State of
Arizona, excluding that body of law pertaining to conflict of laws. If any
provision of this Agreement is for any reason found to be inoperative, invalid
or unenforceable, the remainder of this Agreement will continue in full force
and effect without regard to such
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inoperative, invalid or unenforceable provision and, to this end all provisions
of this Agreement are declared to be severable.
Section 1.20 Notices. Any notices under this Agreement will be
sent by certified or registered mail, return receipt requested, by personal
delivery to the address specified above or such other address as the party
specifies in writing. Such notice will be effective upon its delivery or
transmittal as specified.
Section 1.21 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
Section 1.22 Complete Understanding; Modification. This
Agreement, together with the Amendment to Agreement and the Exhibits thereto,
constitutes the complete and exclusive understanding and agreement of the
parties and supersedes all prior understandings and agreements, whether written
or oral, with respect to the subject matter hereof. Any waiver, modification or
amendment of any provision of this Agreement will be effective only if in
writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the Effective Date.
MESA AIR GROUP, INC. CONSULTANT
By:________________________________ By:_________________________________
Name:______________________________ Name: Jonathan G. Ornstein
Title:_____________________________
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