Exhibit 10.34
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
April 30, 2005 by and between MESA AIR GROUP, INC., a Nevada corporation (the
"Company"), and Brian S. Gillman (the "Executive").
WITNESSETH:
1. EMPLOYMENT
The Company hereby employs the Executive, and the Executive hereby accepts
such employment, upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM
Subject to the provisions for termination as hereinafter provided, the term
of employment under this Agreement shall begin on the date hereof and shall
continue for a term of three years, provided, however, that if the Company fails
to give one hundred eighty days written notice prior to the date of termination,
the term of this Agreement shall automatically be extended for additional one
hundred eighty day periods.
3. COMPENSATION
3.1 Base Salary. The Company shall pay to the Executive as basic
compensation for all services rendered by the Executive during the term of this
Agreement as basic annualized salary of $125,000 through September 30, 2005, and
130,000 through September 30, 2006, and $135,000 for the remainder of the
Agreement, or such other sum in excess of that amount as the parties may agree
on from time to time or as provided in the last sentence of this Section 3.1 (as
in effect from time to time, the "Base Salary"), payable bi-weekly or in other
more frequent installments, as determined by the Company. The Company shall have
no authority to reduce the Executive's Base Salary in effect from time to time.
In addition, the Company, in its discretion, may award a bonus or bonuses to the
Executive in addition to the bonuses provided for in Section 3.2, provided,
however, such discretionary bonus shall not be included in the definition of
"Base Salary." Annually, the Company shall review the Base Salary and increase
it as it deems appropriate.
3.2 Bonuses. In addition to the Base Salary to be paid pursuant to Section
3.1, the Company shall pay the Executive as incentive compensation a bonus. The
bonus will be a minimum of thirty (30%) of Base Salary, which will be paid
quarterly if Company is profitable. In addition, Executive shall be eligible to
receive and the Company shall pay to the Executive an additional bonus
(including the minimum bonus) in the aggregate of 31% to 100% of the Executive's
Base Salary at such time that the Board grants similar bonuses to other
executives of the Company.
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3.3 Stock Option/Restricted Stock Award. Each year during the term of this
Agreement on the anniversary date of this Agreement, the Company shall issue
options of not fewer than 20,000 shares of common stock of the Company (adjusted
appropriately for any stock dividend, stock split, spin-off, reorganization, or
similar transaction) or restricted stock or other equity equivalent with a
similar vesting schedule in an amount designed to achieve the same underlying
value to the Executive. With respect to Stock Options, the underlying shares of
Common Stock of which will be registered on Form S-8 or any successor form, at
an exercise price per share, which is no greater than the market price on the
grant date The term will be for a term of ten years from the date of grant and,
except as otherwise provided (but in no event shall the vesting schedule be more
restrictive than as set forth in this Agreement), shall vest one-third annually.
3.4 Other Benefits. The Executive shall be entitled to such fringe benefits
including, but not limited to, medical and other insurance benefits (for the
Executive and his family), positive space airline travel benefits on the
Company's airline, as may be provided from time to time by the Company to other
senior management of the Company. The Company will use its commercially
reasonable efforts to obtain from other airlines the same benefits for the
Executive as the Company provides to executive officers of other airlines.
3.5 Expenses. The Company shall reimburse the Executive, in accordance with
the Company's policies and practices for senior management, for all reasonable
expenses incurred by the Executive in the performance of the Executive's duties
under this Agreement.
3.6 Reimbursement. The Company shall reimburse Executive for his
out-of-pocket costs incurred in connection with the retention of professionals
by Executive to provide Executive with income tax, estate planning, and
investment advisory services. The maximum amount of reimbursable expenses for
such purposes shall be $1,000 for each calendar year during the term of this
Agreement. The Company shall reimburse Executive for such costs promptly after
Executive submits an invoice to Company. In order to preserve Executive's rights
to confidentiality, Executive may satisfy the requirement of submitting an
invoice by providing the Company with a copy of the facing page of the invoice
showing the fees and expenses for the services rendered and the general nature
of the services rendered but without any detail concerning the substance of the
services rendered.
3.7 Other Incentive and Benefit Plans. The Executive shall be eligible to
participate, in accordance with the terms of such plans as they may be adopted,
amended and administered from time to time, in incentive, bonus, benefit or
similar plans, including without limitation, any stock option, bonus or other
equity ownership plan, any short, mid or long term incentive plan and any other
bonus, pension or profit sharing plans established by the company from time to
time.
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4. DUTIES
The Executive is engaged as the Vice President, General Counsel and
Secretary of the Company. The Executive's duties and responsibilities shall be
commensurate with those customarily associated with the Vice President and
General Counsel of a publicly traded Company, including such other duties as
from time to time may be assigned by the Chairman of the Board, Chief Executive
Officer or by the directors.
5. VACATIONS AND DAYS OFF
The Executive shall be entitled to vacations with pay and to such personal
and sick leave with pay in accordance with the policy of the Company as may be
established from time to time by the Company and applied to other senior
officers of the Company. In no event shall the Executive be entitled to less
than three week's annual vacation. Unused vacation days may be carried over from
one year to the next for the length of the Agreement.
6. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
6.1 Death. If the Executive dies during the term of Executive's employment,
the Company shall pay to the estate of the Executive within 30 days after the
date of death such Base Salary and any cash bonus compensation earned pursuant
to the provisions of this Agreement or any incentive compensation plan then in
effect but not yet paid, as would otherwise have been payable to the Executive
up to the end of the month in which the Executive's death occurs. After
receiving the payment provided in this Section 6.1, the Executive and the
Executive's estate shall have no further rights under this Agreement (other than
those rights already accrued).
6.2 Disability. During any period of disability, illness or incapacity
during the term of this Agreement which renders the Executive at least
temporarily unable to perform the services required under this Agreement, the
Executive shall receive the Base Salary payable under Section 3.1 of this
Agreement plus any cash bonus compensation earned pursuant to the provisions of
this Agreement or any incentive compensation plan then in effect but not yet
paid, less any cash benefits received by him under any disability insurance
carried by or provided by the Company. Upon the Executive's "Permanent
Disability" (as defined below), which Permanent Disability continues during the
payment periods specified herein, the Company shall pay to the Executive for the
period of time specified below an amount (the "Disability Payment") equal to the
(i) sum of (A) the Base Salary paid in the same bi-weekly or other period
installments as in effect at the time of the Executive's Permanent Disability
plus (B) an amount equal to the Minimum Bonus payable to the Executive under
Section 3.2 of this Agreement or the minimum amount of any similar bonus or
incentive plans or programs then in effect if greater than the Minimum Bonus in
respect of the fiscal year during which the Executive's Permanent Disability
occurred, which amount, in any event, shall be paid in pro rata equal bi-weekly
installments over the period of time specified below (ii) reduced by the amount
of any
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monthly payments under any policy of disability income insurance paid for by the
Company which payments are received during the time when any Disability Payment
is being made to the Executive following the Executive's Permanent Disability.
For so long as the Executive's Permanent Disability continues, the Disability
Payment shall be paid by the company to the Executive in equivalent installments
at the same time or times as would have been the case for payment of Base Salary
over the unexpired term of this Agreement if the Executive had not become
permanently disabled and had remained employed by the Company hereunder, but in
no case shall such period be less than 24 months. The Executive may be entitled
to receive payments under any disability income insurance which may be carried
by or provided by the Company from time to time. Upon "Permanent Disability" (as
that terms is defined in Section 6.2(ii) below) of the Executive, except as
provided in this Section 6.2 all rights of the Executive under this Agreement
(other than rights already accrued or the Executive's rights under Section 3.7
shall terminate).
(ii) The term "Permanent Disability" as used in this Agreement shall mean,
the inability of the Executive, as determined by the Board of Directors of the
Company, by reason of physical or mental disability to perform the duties
required of him under this Agreement for a period of one hundred and eighty
(180) days in any 210-day period. Successive periods of disability, illness or
incapacity is due to the same or related cause and commences less than three
months from the ending of the previous period of disability. Upon such
determination, the Board of Directors may terminate the Executive's employment
under this Agreement upon ten (10) days' prior written notice. If any
determination of the Board of Directors with respect to permanent disability is
disputed by the Executive, the parties hereto agree to abide by the decision of
a panel of three physicians. The Executive and Company shall each appoint one
member, and the third member of the panel shall be appointed by the other two
members. The Executive agrees to make himself available for an submit to
examinations by such physicians as may be directed by the Company. Failure to
submit to any such examination shall constitute a breach of a material part of
this Agreement.
7. OTHER TERMINATIONS
7.1 By the Executive. (i) The Executive may terminate the Executive's
employment hereunder upon giving at least ninety (90) days' prior written
notice. In addition, the Executive shall have the right to terminate the
Executive's employment hereunder on the conditions and at the times provided for
in Section 7.4 of this Agreement.
(ii) If the Executive gives notice pursuant to the first sentence of
Section 7.1(i) above, the Company shall have the right (but not the obligation)
to relieve the Executive, in whole or in part, of the Executive's duties under
this Agreement, or direct the Executive to no longer perform such duties, or
direct that the Executive should no longer report to work, or any combination of
the foregoing. In any such event, the Executive shall be entitled to receive
only the Base Salary not yet paid, as would otherwise have been payable to the
Executive up to the end of the month specified as the month of
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termination in the termination notice. If the Executive gives notice pursuant to
the first sentence of Section 7.1(i) above but specifies a termination date in
excess of ninety (90) days from the date of such notice, the Company shall have
the right (but not the obligation) to accelerate the termination date to any
date prior to the date specified in the notice that is in excess of ninety (90)
days from the date of the notice, and the Company shall have the right (but not
the obligation) to relieve the Executive, in whole or in part, of the
Executive's duties under this Agreement, or direct the Executive to no longer
perform such duties, or direct that the Executive should no longer report to
work, or any combination of the foregoing; provided, however, that in any such
event the Executive shall be entitled to receive the Base Salary, as would
otherwise have been payable to the Executive up to the end of the month of the
termination date properly selected by the Company. If the Executive gives notice
pursuant to the first sentence of Section 7.1(i), upon receiving the payments
provided for under this Section 7.1, all rights of the Executive under this
Agreement (other than rights already accrued or the Executive's rights under
Section 3.7) shall terminate.
7.2 Termination for "Good Cause." (i) Except as otherwise provided in this
Agreement, the Company may terminate the employment of the Executive hereunder
only for "good cause," which shall mean the termination of employment of
Employee because of Employee's personal dishonesty, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to perform
stated duties (including failure to travel to the Company's headquarters to the
extent necessary to complete his duties), willful violation of any material law,
rule or regulation resulting in the Company's detriment or reflecting upon the
Company's integrity (other than traffic infractions or similar minor offenses)
or a material breach by the Employee of the terms of this Agreement and failure
to cure such breach within thirty (30) days after receipt of written notice from
the Company specifying the nature of such breach or to pay compensation to the
Company deemed reasonable by the Company if the breach cannot be cured.
(ii) If the employment of the Executive is terminated for good cause under
Section 7.2(i) of this Agreement, the Company shall pay to the Executive any
Base Salary earned prior to the effective date of termination but not yet paid
and any such cash bonus compensation earned pursuant to the provisions of this
Agreement or any incentive compensation plan then in effect but not paid to the
Executive prior to the effective date of such termination. Under such
circumstances, such payments shall be in full and complete discharge of any and
all liabilities or obligations of the Company to the Executive hereunder, and
the Executive shall be entitled to no further benefits under this Agreement
(other than rights already accrued or the Executive's rights under Section 3.7).
(iii) Termination of the employment of the Executive, other than as
expressly specified above in Section 7.2(i) for good cause, shall be deemed to
be termination of employment "Without Good Cause."
7.3 Termination Without Good Cause. (i) Notwithstanding any other provision
of this Agreement, the Company shall have the right to terminate the
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Executive's employment Without Good Cause pursuant to the provisions of this
Section 7.3. If the Company shall terminate the employment of the Executive
Without Good Cause effective on a date earlier than the termination date
provided for in Section 2 (with the effective date of termination as so
identified by the Company being referred to herein as the "Accelerated
Termination Date"), the Executive, shall receive a lump sum cash payment equal
to a sum of (1) the number of years (or fractions thereof) remaining in the then
unexpired term of this Agreement or three, whichever is greater, multiplied by
the sum of (A) the Base Salary and (B) the highest annual bonus amount received
by Executive during the preceding three years or the minimum amount of any
similar bonus or incentive plans or programs then in effect if greater than
foregoing in respect to the fiscal year during which the Executive's termination
Without Good Cause occurs plus (C) any other cash or other bonus compensation
earned prior to the date of such termination pursuant to the terms of all
incentive compensation plans then in effect other than any such plan relating to
annual incentive cash bonuses or any similar bonus or incentive plans or
programs then in effect; and (2) the additional payments necessary to discharge
certain tax liabilities (the "Gross Ups"), as the term is defined in Section 11
of this Agreement, provided that, notwithstanding such termination of
employment, the Executive's covenants set forth in Section 9 are intended to and
shall remain in full force and effect and provided further that in the event of
such termination, the Company shall have the right (but not the obligation) to
relieve the Executive, in whole or in part, of the Executive's duties under this
Agreement, or direct the Executive to no longer perform such duties, or direct
that the Executive no longer be required to report to work, or any combination
of the foregoing.
(ii) The parties agree that, because there can be no exact measure of the
damage that would occur to the Executive as a result of a termination by the
Company of the Executive's employment Without Good Cause, the payments and
benefits paid and provided pursuant to this Section 7.3 shall be deemed to
constitute liquidated damages and not a penalty for the Company's termination of
the Executive's employment Without Good Cause.
7.4 Termination by Executive For Good Reason. (i) The Executive shall be
entitled to terminate his employment hereunder for Good Reason within one-year
of the occurrence of an event constituting Good Reason. For purposes of this
Agreement, "Good Reason" shall mean the occurrence of any of the following
circumstances without the Executive's consent: (1) assignment of the Executive
to any duties substantially inconsistent with his position or duties
contemplated by this Agreement or a substantial reduction of his duties
contemplated by this Agreement; (2) the removal of any titles of the Executive
specified in Section 4 of this Agreement; (3) any breach of the Company's
obligation under this Agreement or any failure by the company to carry out any
of its material obligations hereunder, and the failure to cure such breach or
failure within seven days after written notice of such breach or failure has
been delivered to the Company by the Executive; (4) a Change of Control (as
hereinafter defined); or (5) the relocation of the Executive or his office,
facilities, personnel, or equipment; provided, however, it shall not constitute
"Good Reason" if the Executive or his office, facilities, personnel, or
equipment are relocated to any future location of the Company's corporate
headquarters
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and the relocated corporate headquarters is in a metropolitan area with a
population of at least 1,000,000 people.
(ii) For purposes of this Agreement, a "Change in Control" shall mean the
first to occur of:
(1) a change in control of the Company of a nature that is required,
pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
to be reported in response to Item 1(a) of a Current Report on
Form 8-K or Item 6(e) of Schedule 14A under the 1934 Act (in each
case under this Agreement, references to provisions of the 1934
Act and the rules and regulations promulgated thereunder being
understood to refer to such law, rules and regulations as the
same are in effect on April 1, 1998; or
(2) the acquisition of "beneficial Ownership" (as defined in Rule
13d-3 under the 1934 Act) of the Company's securities comprising
25% or more of the combined voting power of the Company's
outstanding securities by any "person" (as that term is used in
Section 13(d) and 14(d)(2) of the 1934 Act and the rules and
regulations promulgated thereunder, but not including any trustee
or fiduciary acting in that capacity for an employee benefit plan
sponsored by the Company) and such person's "affiliates" and
"associates" (as those terms are defined under the 1934 Act), but
excluding any ownership by the Executive and his affiliates and
associates; or
(3) the closing of a sale of all or substantially all of the assets
of the Company;
(4) the Company's adoption of a plan of dissolution or liquidation;
or
(5) the closing of a merger or consolidation involving the Company in
which the Company is not the surviving corporation or 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.
(iii) If an event constituting Good Reason occurs, the Executive shall have
the right, exercisable for a period of one year thereafter by delivering a
written statement to that effect to the Company, to immediately terminate this
Agreement and upon such a determination the Executive shall have the right to
receive and the Company shall be obligated to pay to Executive in cash a lump
sum payment in an amount equal to the sum of (1) three times (a) the Base Salary
then in effect, plus (B) the highest annual bonus amount received by Executive
during the preceding three years or the minimum amount of any similar bonus or
incentive plans or programs then in effect if greater than the foregoing in
respect to the fiscal year during which the Executive's termination Without Good
Cause occurs plus (C) any other cash or other bonus compensation earned prior to
the date of such termination pursuant to the terms of all incentive compensation
plans then in effect other than any such plan relating to annual incentive cash
bonuses or any similar bonus or incentive plans or programs then in effect; and
(2) the Gross Up (the sum of the foregoing amounts other than the Gross Up being
referred to as the "Good Reason Termination Payment"). If the Executive fails to
exercise his rights under this Section 7.4(iii) within one year following an
event constituting Good Reason, such rights shall expire and be of no further
force or effect.
7.5 Intentions Regarding Certain Stock and Benefit Plans. Except as
otherwise provided herein, upon any 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, it is the intention of the parties
that any and all vesting or performance requirements or conditions affecting any
outstanding restricted stock, performance stock, stock option, stock
appreciation right, bonus, award, right, grant or any other incentive
compensation under the Mesa Air Group Employee Stock Option Plan or any other
similar incentive plan, under this Agreement, or otherwise received, shall be
deemed to be fully satisfied and any risk of forfeiture with respect thereto
shall be deemed to have lapsed.
7.6 Certain Rights Mutually Exclusive. The provisions of Section 7.3 and
Section 7.4 are mutually exclusive, provided, however, that if within one year
following commencement of an 7.4 payout there shall be a Change of Control as
defined in Section 7.4(ii), then the Executive shall be entitled to the amount
payable to the Executive under Section 7.4(iii) reduced by the amount that the
Executive has received under Section 7.3 up to the date of the Change in
Control. The triggering of the lump sum payment requirement of Section 7.4 shall
cause the provisions of Section 7.3 to become inoperative.
8. DISCLOSURE
The Executive agrees that during and after the term of the Executive's
employment by the Company, the Executive will disclose and disclose only to the
Company all ideas, methods, plans, developments or improvements known by him
which relate directly or indirectly to the business of the Company, whether
acquired by the Executive before or during the Executive's employment by the
Company. Nothing in this Section 8 shall be construed as requiring any such
communication where the idea, plan, method or development is lawfully protected
from disclosure as a trade secret of a third party or by any other lawful
prohibition against such communication.
9. CONFIDENTIALITY
The Executive agrees to keep in strict secrecy and confidence any and all
information the Executive assimilates or to which the Executive has access
during the Executive's employment by the Company and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Company, including but not limited to information regarding the Company's trade
secrets, business plans,
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marketing plans or programs, any non-public financial information, including
forecasts, statistics relating to routes and markets, contracts, customers,
compensation arrangements and business opportunities (collectively, the
"Confidential Information"). The Executive agrees that both during and after the
term of the Executive's employment by the Company, the Executive will not,
without the prior written consent of the Company, disclose any Confidential
Information to any third person, partnership, joint venture, company,
corporation or other organization. The foregoing covenants shall not be breached
to the extent that any such Confidential Information becomes a matter of general
knowledge other than through a breach by a person with an obligation to the
Company to maintain such confidentiality (and the Executive knows that such
person had an obligation to keep such information confidential), including but
not limited to the Executive's obligation to the Company under this Section 9.
10. SPECIFIC PERFORMANCE
The Executive agrees that damages at law will be an insufficient remedy to
the Company if the Executive violates the terms of Section 8 or Section 9 of
this Agreement and that the Company would suffer irreparable damage as a result
of such violation. Accordingly, it is agreed that the Company shall be entitled,
upon application to a court of competent jurisdiction, to obtain injunctive
relief to enforce the provisions of such Sections, which injunctive relief shall
be in addition to any other rights or remedies available to the Company.
11. PAYMENT OF EXCISE TAXES
11.1 Payment of Excise Taxes. If the Executive is to receive any (1) Good
Reason Termination Payment under Section 7.4 of this Agreement, (2) any benefit
or payment under Section 6 as a result of or following the death or Permanent
Disability of the Executive, (3) any benefit or payment under Section 7.3 as a
result of or following any termination of employment hereunder Without Good
Cause, (4) any benefit or payment under the Plans as a result of a Change in
Control, following the death or Permanent Disability of the Executive or
following the termination of employment hereunder Without Good Cause (such
sections being referred to as the "Covered Sections" and the benefits and
payments to be received thereunder being referred to as the "Covered Payments"),
the Executive shall be entitled to receive the amount described below to the
extent applicable: If any Covered Payment(s) under any of the Covered Sections
or by the Company under another plan or agreement (collectively, the "Payments")
are subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986 (as amended from time to time, the "Code"), or any successor or
similar provision of the Code (the "Excise Tax"), the Company shall pay the
Executive an additional cash amount (the "Gross Up") such that the net amount
retained by the Executive after deduction of any Excise Tax on the Payments and
the federal income tax and Excise Tax on any amounts paid under this Section 11
shall be equal to the Payments. The Gross-Up shall not include the amount of
state or federal income tax owed by the Executive on the amount of the Payments
excluding any state or federal income tax on the Gross-Up.
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11.2 Certain Adjustment Payments. For purposes of determining the Gross Up,
the Executive shall be deemed to pay the federal income tax at the highest
marginal rate of taxation (currently 39.6%) in the calendar year in which the
payment to which the Gross Up applies is to be made. The determination of
whether such Excise Tax is payable and the amount thereof shall be made upon the
opinion of tax counsel selected by the Company and reasonably acceptable to the
Executive. The Gross Up, if any, that is due as a result of such determination
shall be paid to the Executive in cash in a lump sum within thirty (30) days of
such computation. If such opinion is not finally accepted by the Internal
Revenue Service upon audit or otherwise, then appropriate adjustments shall be
computed (without interest but with Gross Up, if applicable) by such tax counsel
based upon the final amount of the Excise Tax so determined; any additional
amount due the Executive as a result of such adjustment shall be paid to the
Executive by his or her Company in cash in a lump sum within thirty (30) days of
such computation, or any amount due the Executive's Company as a result of such
adjustment shall be paid to the Company by the Executive in cash in a lump sum
within thirty (30) days of such computation.
12. MISCELLANEOUS
12.1 Waiver of Breach. The waiver by either party to this Agreement of a
breach of any of the provisions of this Agreement by the other party shall not
be construed as a waiver of any subsequent breach by such other party.
12.2 Compliance With Other Agreements. The Executive represents and
warrants that the execution of this Agreement by him and the Executive's
performance of the Executive's obligations hereunder will not conflict with,
result in the breach of any provision of or the termination of or constitute a
default under any Agreement to which the Executive is a party or by which the
Executive is or may be bound.
12.3 Binding Effect Assignment. The rights and obligations of the Company
under this Agreement shall insure to the benefit of and shall be binding upon
the successors and assigns of the Company. This Agreement is a personal
employment contract and the rights, obligations and interests of the Executive
hereunder may not be sold, assigned, transferred, pledged or hypothecated.
12.4 Entire Agreement. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge is sought.
12.5 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
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12.6 No Duty to Mitigate. The Executive shall be under no duty to mitigate
any loss of income as result of the termination of his employment hereunder and
any payments due the Executive upon termination of employment shall not be
reduced in respect to any other employment compensation received by the
Executive following such termination.
12.7 Arizona Law. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State of Arizona (except that any
provision of Nevada law shall not apply if the law of a state or jurisdiction
other than Arizona would otherwise apply).
12.8 Severability. Any provision of this Agreement which is determined by a
court of competent jurisdiction to be prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction. In any
such case, such determination shall not affect any other provision of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect. In any provision or term of this Agreement is susceptible to
two or more constructions or interpretations, one or more of which would render
the provision or term void or unenforceable, the parties agree that a
construction or interpretation which renders the term or provision valid shall
be favored.
12.9 Deduction for Tax Purposes. The Company's obligations to make payments
under this Agreement are independent of whether any or all of such payments are
deductible expenses of the company for federal income tax purposes.
12.10 Enforcement. If, within ten (10) days after demand to comply with the
obligations of one of the parties to this Agreement served in writing on the
other, compliance or reasonable assurance of compliance is not forthcoming, and
the party demanding compliance engages the services of an attorney to enforce
rights under this Agreement, the prevailing party in any action shall be
entitled to recover all reasonable costs and expenses of enforcement (including
reasonable attorneys' fees and reasonable expenses during investigation, before
and at trial and in appellate proceedings if litigation ensues), directly or
indirectly resulting from or arising out of a breach by the other party of their
respective obligations hereunder. The parties' costs of enforcing this Agreement
shall include prejudgment interest. Additionally, if any party incurs any
out-of-pocket expenses in connection with the enforcement of this Agreement, all
such amounts shall accrue interest at ten percent (10%) per annum (or such lower
rate as may be required to avoid any limit imposed by applicable law) commencing
thirty (30) days after any such expenses are incurred.
12.11 Notices. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by telecopy or
similar electronic transmission method; one working day after it is sent, if
sent by recognized
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expedited delivery service; and three days after it is sent, if mailed, first
class mail, certified mail, return receipt requested, with postage prepaid. In
each case notice shall be sent to:
To the Company c/o Mesa Airlines, Inc.
410 North 44th Street, Ste 700
Phoenix, AZ 85008
Attn: Chief Executive Officer
Telephone: (602) 685-4000
To the Executive at the Executive's last known address, or to such other
address as either party may specify by written notice to the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
MESA AIR GROUP, INC.
By: /s/
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Michael Lotz, President (Date)
By: /s/
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Brian S. Gillman (Date)
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