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1.
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Term of Employment
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a.
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Basic Rule. ACY agrees to employ the Executive in the capacity of President and the Executive agrees to such employment. Executive's employment with ACY on the terms set forth herein shall begin on the Effective Date.
Upon the Effective Date, the JMC Employment Agreement shall be of no further force and effect, and the termination of such Agreement pursuant to the terms of this Agreement shall not entitle Executive or JMC to any remedies for
termination or breach as set forth in the JMC Employment Agreement.
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b.
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Initial Term. ACY agrees to continue the Executive's employment, and the Executive agrees to remain in employment with ACY, from the Effective Date until the earliest of:
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i.
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December 31, 2021 ("Initial Term Expiration Date"); or
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ii.
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The date of the Executive's death or when the Executive's employment
expires or terminates pursuant to Subsections (c), (d), (e) or (f) below.
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c.
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Automatic Extensions. The term and provisions of this Agreement shall automatically extend for additional one-year periods if Executive remains employed on and after the Initial Term Expiration Date, unless either party
notifies the other in writing to the contrary at least 90 days prior to the applicable expiration that it, or he, does not want the term to so extend. The Initial Term, and if applicable, any automatic extensions pursuant to this
subsection (c) is hereinafter referred to as the "Employment Period."
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d.
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Termination By Company for Cause. ACY may terminate the Executive's employment at any time for Cause. For all purposes under this Agreement,
"Cause" shall mean (1) a material breach by the Executive of his duties and responsibilities as set forth under this Agreement, resulting from other than the Executive's complete or partial incapacity due to physical or mental
disability or impairment, as defined in Section 1(e) below and except as otherwise prohibited by law, (2)a willful act by the Executive that constitutes gross misconduct and that is materially injurious to ACY, a customer of the Company
or an employee, officer, shareholder or affiliate of the Company, (3) a willful breach by the Executive of a material provision of this Agreement, (4) a material violation by the Executive of one of ACY’s General Standards of Conduct as
set forth in the JMC Employment Handbook (as defined in 2(c) below) and, as adopted by ACY, (5) Executive’s material or habitual neglect of Executive’s duties under this Agreement, including, but not limited to, Executive’s intentional
or grossly negligent failure to perform reasonably assigned duties; or (6) a material and willful violation of a federal or state law or regulation applicable to the business of ACY that is materially and demonstrably injurious to
ACY. No act, or failure to act, by the Executive shall be considered "willful" unless committed without good faith and without a reasonable belief that the act or omission was in ACY’s best interest. However, if such Cause is
reasonably curable, ACY shall not terminate the Executive's employment hereunder unless ACY first gives written notice of its intention to terminate and of the grounds for such termination, and Executive has not, within sixty (60) days
following receipt of notice, cured such Cause. In the event of a termination for Cause by ACY, Executive shall be entitled to receive his salary and benefits through the date of termination. For avoidance of doubt, ACY will use best
efforts to timely and contemporaneously inform Executive of any material
or habitual neglect of Executive’s duties under this Agreement, including, but not limited to, Executive’s intentional or grossly negligent failure to perform reasonably assigned duties.
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e.
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Termination by ACY for Disability. ACY may terminate the Executive's employment for Disability by giving the Executive written notice. For all purposes under this Agreement, "Disability" shall mean, unless otherwise
required by law, any physical or mental incapacitation that results in Executive's inability to perform his duties and responsibilities for ACY, as determined by the Board of Directors of ACY, for a period in excess of 90 consecutive days
or for more than 120 days during any consecutive 12 month period, except as otherwise required by federal, state or local law. Disability will be deemed to have occurred on the 120th day of such inability to perform. In the
event that the Executive resumes the performance of substantially all of the Executive's duties under this Agreement before the termination of the Executive's employment under this Section becomes effective, the notice of termination
shall automatically be deemed to have been revoked. In the event of a termination for Disability by ACY, Executive shall be entitled to receive his salary and benefits through the date of termination.
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f.
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Termination by Executive For Good Reason. The Executive may terminate his employment with ACY for Good Reason. Termination by the Executive for
"Good Reason" shall mean one or more of the following undertaken without Executive’s consent: (i) there is a material and adverse change in
Executive's position, duties, responsibilities, or status, following a Change in Control or otherwise; (ii) there is a material reduction in Executive's salary or benefits then in effect, other than a reduction comparable to reductions
generally applicable to similarly situated employees of ACY, following a Change in Control or otherwise; or (iii) the Company materially breaches this Agreement. Executive agrees to deliver to ACY written notice of his termination for
Good Reason no later than 30 days after the occurrence of any such event in order for Executive's termination for Good Reason to be effective hereunder; such termination for Good Reason will not be effective until the 30th day following receipt of such written notice by ACY and such termination shall not be deemed to be for "Good Reason" hereunder unless the circumstance giving rise
to Executive's Good Reason remains uncured at the end of such 30-day period. If Executive terminates this Agreement for Good Reason, he is entitled to the payments described in Section 6 below.
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2.
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Duties and Scope of Employment.
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a.
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Scope. ACY agrees to employ the Executive for the Employment Period in the position of President, and shall have the normal duties, responsibilities, functions and authority of such position as directed by ACY’s Board of
Directors, including those set forth below, subject to the overall direction and authority of the ACY Board of Directors. Executive shall be given such duties, responsibilities and authorities as are appropriate to his position
including, without limitation:
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·
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strategic planning and management
of all aircraft acquisition, leasing and remarketing activities of ACY and any other agreements entered into by ACY or its subsidiaries for management of aircraft
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·
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overseeing the overall direction of Company growth through financing, business development, strategic
positioning, distribution, branding, and day to day operations. Day to day operational duties include, but shall not be limited to, having the final approval in the negotiations of all major contracts, hiring of management and other
employees, the creative and business direction of the Company, and, working directly with the Company’s legal counsel, auditors, and other senior management, consultants, brokers and vendors.
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·
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as President and Chief Executive Officer of ACY, reporting to the ACY Board of Directors and
assuming any responsibilities as designated by the ACY Board of Directors, including review and execution of audit representation letters, review and certification of ACY federal and/or state securities, stock exchange and other
administrative filings requiring execution in Executive's capacity as Chief Executive Officer of ACY; and filling and assuming duties of other officer and director positions at the subsidiaries of ACY as directed by the Board of
Directors;
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·
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representing ACY at industry conferences worldwide; and
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·
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assisting in ACY debt and equity capital raising activities.
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b.
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Obligations. During the
Employment Period, the Executive shall devote such business efforts and time to the business and affairs of ACY and its subsidiaries as are needed to carry out his duties and responsibilities hereunder, subject to the overall supervision
of ACY’s Board of Directors, and shall not accept other employment. The foregoing shall not preclude Executive from engaging in appropriate civic, educational, charitable or religious activities or from devoting a reasonable amount of
time to private investments or from serving on the boards of directors of other entities, as long as such activities and service are disclosed to the Chairman of the Board and do not interfere or conflict with the Executive's
responsibilities to ACY. Executive will perform his duties and responsibilities hereunder to the best of his abilities in a diligent, trustworthy, businesslike and efficient manner and shall comply with the Company’s policies and
procedures in all material respects.
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c.
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Employer Handbook. Executive shall comply with and be subject to terms of the JMC Employee Handbook, as may be amended from time to time with notice to all employees at ACY’s discretion (the "Handbook"); provided,
however, that terms set forth in this Agreement that conflict with terms of the Handbook shall supersede such terms in the Handbook. Executive hereby acknowledges receipt of such Handbook, and that he has read and reviewed the terms
contained therein.
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d.
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Confidentiality Agreement. Executive acknowledges that it has read, executed and delivered, and will comply at all times with, the Confidentiality Agreement in the form attached as Exhibit A hereto.
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e.
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Inventions and Patents. Executive acknowledges that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable)
that relate to ACY’s or any of its affiliates' actual or anticipated business, research and development or existing or future products or services and that are conceived, developed or made by Executive (1) in the course of Executive's
employment with ACY; or (2) during Executive's employment with ACY if related to ACY’s actual or anticipated business, research and development ("Work Product"),
belong to ACY or such affiliate. Executive shall promptly disclose such Work Product to ACY and perform all actions requested by ACY (whether during or after the Employment Period) to establish and confirm such ownership (including,
without limitation, assignments, consents, powers of attorney and other instruments). Any work product that constitutes a pre-existing invention consistent with California Labor Code Sections 2870 and 2872 or other applicable law is
specifically excluded from this provision. Executive agrees to disclose any such work product prior to beginning employment with ACY and to complete the appropriate forms.
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f.
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Additional Acknowledgments: Executive acknowledges that the provisions of Sections 2 (d) and 2(e) are in consideration of:
(i) employment with ACY and (ii) additional good and valuable consideration as set forth in this Agreement. Executive expressly agrees and acknowledges that the restrictions contained in Sections 2(d) and 2(e) do not preclude Executive from earning a livelihood, nor do they unreasonably impose limitations on Executive's ability to earn a living. Executive acknowledges that he/she
has carefully read this Agreement and has given careful consideration to the restraints imposed upon Executive by this Agreement.
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3.
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Compensation
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a.
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Base Salary. During the Employment Period, and as compensation for the agreements made by Executive herein and the performance by the Executive of his obligations hereunder, Executive shall earn compensation as set by the
Compensation Committee of the Board of Directors of ACY (“Comp Committee”). On the Effective Date and for the 2019 fiscal year of the Company, Executive shall earn a base salary (“Base Salary”) at the annual rate of $375,000 (the
"Initial Base Salary"). Executive’s Base Salary rate for subsequent years shall be determined by the Comp Committee in its sole discretion, but in no event shall the Base Salary be less than $375,000. The Base Salary specified in this
Section 3, together with any increases made in accordance with this Section 3, is referred to in this Agreement as "Base Compensation". Such Base Compensation shall be payable in accordance with standard payroll procedures and shall be
subject to customary withholdings.
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b.
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Bonus Compensation. Executive shall earn bonus compensation for any calendar year as set forth in this subsection as follows:
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i.
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Upon mutual execution of this Agreement, Executive shall be paid a one-time lump sum signing
bonus of $75,000. Executive shall be a participant in any executive cash bonus/long term incentive compensation plan approved by the Board of Directors for certain executive officers and key executives of the Company, with such terms as
negotiated in good faith between the Comp Committee and the Executive, including provisions for accelerated vesting upon termination following a Change in Control Provided that other executives under the applicable bonus plan are eligible
to receive and are paid a Fixed Bonus (defined below) for the calendar year, Executive shall be entitled to such Fixed Bonus under the following terms and conditions: (i) Executive must be employed on or after September 30 of the
qualifying calendar year in order to be eligible for the Fixed Bonus for that year; if Executive’s employment terminates prior to September 30 of the calendar year, regardless of the reason for termination, Executive will not be entitled
to the Fixed Bonus for that year; (ii) in the event of a Qualifying Termination (as defined below) that occurs after September 30 but before December 31 of the calendar year, Executive shall be entitled to receive a pro rata proportion
(based on percentage of the calendar year that Executive was employed with the Company) of the Fixed Bonus amount under such bonus plan that he would have received had he been employed for the entire calendar year; (iii) if Executive
remains employed with the Company on December 31 of the calendar year, Executive will be entitled to receive his entire Fixed Bonus amount for the calendar year regardless of whether Executive’s employment terminates prior to the time of
payout of the Fixed Bonus following the end of the bonus plan year. As used in this Agreement, the term “Fixed Bonus” refers to a non-discretionary cash bonus, the eligibility for, and amount of which, is approved by the Board and is
dependent on certain objective factors or company performance targets being met for the entire calendar year.
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ii.
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In each calendar year, Executive may, but is not required to, receive an
additional discretionary bonus, at the total discretion of the Comp Committee. Upon determination by the Comp Committee of such bonus to be paid, the Company will pay the bonus amount as quickly as possible in lump sum, but no later than
March 15th following the end of said calendar year. If Executive is awarded a discretionary bonus for the final year of the Employment Period, Executive shall still receive such bonus whether or not he is employed with the
Company on the date such bonus payment is to be distributed.
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iii.
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For the avoidance of doubt, any bonus compensation paid pursuant to this subsection 3(b) shall
not be deemed a part of Executive's Base Salary, nor constitute an increase in Base Salary for purposes of subsection 3(a) above.
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4.
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Employee Benefits
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a.
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Benefits. During the term of employment under this
Agreement, the Executive shall be eligible to participate in the employee benefit plans and employee compensation and fringe benefit programs maintained by Company, including life, disability, health, accident and other insurance
programs for employees and eligible dependents, paid vacations, and similar plans or programs, as set forth in the JMC Employment Handbook, subject in each case to the generally applicable terms and conditions of the plan or program in
question and to the discretion and determinations of any person, committee or entity administering such plan or program. Executive will be responsible for all costs related to his/her retirement contributions.
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b.
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Paid Vacation and Other Vested Benefits Earned under JMC Employment Agreement: Both Company and Executive acknowledge and agree that any
accrued paid time off (and any other vested benefits) earned by Executive pursuant to the JMC Employment Agreement shall be transferred to ACY and shall be governed by ACY’s plan going forward.
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c.
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Vacation and other Paid Leave: Executive will be entitled to 25 days of vacation per calendar year. The timing of any vacation should be coordinated with the Board and/or other members of ACY’s executive leadership team
to ensure that business needs are adequately addressed during Executive’s absence. Executive will also be entitled to other paid leave as required by federal, state or local law and as set forth in the Company’s policies as in effect from
time to time.
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5.
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Business Expenses and Travel. During the
term of employment under this Agreement, the Executive shall be authorized to incur necessary and reasonable travel, entertainment and other business expenses in connection with the Executive's duties hereunder. The Company shall
reimburse the Executive for such expenses upon presentation of an itemized account and appropriate supporting documentation, all in accordance with generally applicable policies established by the Company. Notwithstanding the Company's
corporate travel policy as set forth in the JMC Employee Handbook, flights within North America and flight segments of five hours or less shall be booked in upgrade economy class that provides extra legroom ("Economy Plus"). Flights of
greater than five hours will be booked in Economy Plus or Business Class, depending on availability and cost.
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6.
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Termination By Company Without Cause, Or By Executive For Good Reason. In the event that, during the term of this Agreement, the Executive's employment terminates in a Qualifying Termination, as defined in Subsection (a),
the Executive shall be entitled to receive the payment amounts described in Subsections (b) and (c), on the condition that Executive executes a general release, the content of which will be mutually agreed to between Employer and
Executive at the time of the Qualifying Termination, in a form substantially similar to the Severance Agreement and General Release attached as Exhibit B to this Agreement.
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a.
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Qualifying Termination. A Qualifying Termination occurs if:
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i.
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The Company terminates the Executive's employment for any reason other than Cause (as
described in Section 1(d)) or Disability (as described in Section 1(e)) of this Agreement; or
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ii.
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The Executive terminates his employment with the Company for Good Reason
(as described in Section 1(f)).
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b.
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Severance. Upon a Qualifying Termination, Executive shall continue to be paid on a semi-monthly basis the Executive's Base Compensation in effect on the date of the employment termination from the date of such Qualifying
Termination until the date (“Severance Pay End Date”) that is the earlier of (i) twenty-four months after such Qualifying Termination or (ii) the scheduled expiration date of this Agreement.
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c.
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Mitigation Obligation. In the event that a Qualifying Termination occurs, and Executive obtains subsequent employment prior to the Severance Pay End Date, any periodic severance payments described in paragraph 6b that are
made after commencement of the subsequent employment (“New Employment Start Date”) shall be reduced by an amount equal to 75% of the base compensation received from Executive's new employer during the period beginning on New Employment
Start Date and ending on the Severance Pay End Date.
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7.
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Successors
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a.
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ACY’s Successors. ACY shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of ACY’s business and/or assets,
by an agreement in substance and form satisfactory to the Executive, to assume this Agreement and to agree expressly to perform this Agreement in the same manner and to the same extent as ACY would be required to perform it in the absence
of a succession. ACY’s failure to obtain such agreement prior to the effectiveness of a succession shall be a breach of this Agreement and shall entitle the Executive to all of the compensation and benefits to which the Executive would
have been entitled hereunder if ACY had involuntarily terminated the Executive's employment without Cause or Disability, on the date when such succession becomes effective. For all purposes under this Agreement, the term "ACY" shall
include any successor to ACY's business and/or assets that executes and delivers the assumption agreement described in this Subsection (a) or that becomes bound by this Agreement by operation of law.
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b.
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Executive's Successors. This Agreement and all rights of the Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees.
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8.
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Executive Representations. Executive hereby represents and warrants to ACY that (i) the execution, delivery and performance of this Agreement by Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he or she is bound, (ii) Executive is not a party to or bound by any employment agreement, non-compete agreement, or
confidentiality agreement with any other person or entity (other than a Nondisclosure Agreement with Executive's prior employer, the terms of which he has disclosed to ACY and which he does not expect to materially interfere with the
performance of his obligations hereunder) and (iii) upon the execution and delivery of this Agreement by ACY this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms. Executive
hereby acknowledges and represents that he has had the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement and that he fully understands the terms and conditions contained
herein.
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9.
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Code Section 409A
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a.
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The parties hereto intend that all benefits and payments to be made to the Executive hereunder
will be provided or paid to him in compliance with all applicable provisions of Code Section 409A. This Agreement shall be construed and administered in accordance with such intent. If any provision of this Agreement (or of any award of
compensation) would cause Executive to incur any additional tax or interest under Code Section 409A, the Parties will negotiate in good faith to amend this Agreement as necessary to comply with Section 409A in a manner that preserves the
original intent of the Parties to the extent reasonably possible. No action or failure to act, pursuant to this Section 9, shall subject ACY to any claim, liability, or expense, and the Company shall not have any obligation to indemnify
or otherwise protect the Executive from the obligation to pay any taxes pursuant to Section 409A of the Code.
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b.
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A termination of employment shall not be deemed to have occurred for purposes of any provision
of this Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Code Section 409A upon or following a termination of employment unless such termination is also a
"separation from service" within the meaning of Code Section 409A, and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service."
The determination of whether and when a separation from service has occurred for purposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations.
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c.
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For purposes of Section 409A, each payment made after termination of employment, including any
COBRA continuation reimbursement payments, will be considered one of a series of separate payments.
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d.
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Any amount that the Executive is entitled to be reimbursed under this Agreement that may be
treated as taxable compensation, including any gross-up payment, will be reimbursed to the Executive as promptly as practical and in any event not later than the end of the calendar year following the calendar year in which the expenses
are incurred. The amount of the expenses eligible for reimbursement during any calendar year will not affect the amount of expenses for reimbursement in any other calendar year, except as may be required pursuant to an arrangement
providing for the reimbursement of expenses referred to in Section 105(b) of the Code.
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e.
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Unless this Agreement provides a specified and objectively determinable payment schedule to
the contrary, to the extent that any payment of Base Salary, Base Compensation, or other compensation is to be paid for a specified continuing period of time beyond the date of termination of the Executive's employment in accordance with
the Company's payroll practices (or other similar term), the payments of such Base Salary, Base Compensation, or other compensation shall be made on a semi-monthly basis.
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10.
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Miscellaneous Provisions
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a.
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Amendment and Waiver. No provision of this Agreement shall be modified, waived, or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Executive and by an authorized officer
of the Company (other than the Executive). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision
or of the same condition or provision at another time.
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b.
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Complete Agreement. This Agreement embodies the complete agreement and understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties (whether written or oral, and whether express or implied), which may have related to the subject matter hereof in any way.
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c.
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Choice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of California.
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d.
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Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. In the event any ruling of any court or governmental authority calls into question the validity of any
portion of this Agreement, the parties hereto shall consult with each other concerning such matters and shall negotiate in good faith a modification to this Agreement which would obviate any such questions as to validity while preserving,
to the extent possible, the intent of the parties and the economic and other benefits of this Agreement and the portion thereof whose validity is called into question.
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e.
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Arbitration. Any dispute or controversy arising out of the Executive's employment relationship with ACY, or the termination thereof, or the
validity, enforcement, or breach of this Agreement (including this section) shall be resolved by binding arbitration, in accordance with the then-applicable National Employment Dispute Resolution rules ("Rules") of the American
Arbitration Association (which can be viewed at www.adr.org/aaa/faces/rules), provided, however, that nothing in this arbitration
provision shall prevent either the Executive or the Company from seeking interim or temporary injunctive or equitable relief from a court of competent jurisdiction pending arbitration, nor shall this Section 11(e) require arbitration of disputes or claims that are excluded from coverage by law. The arbitration shall take place in the San Francisco Bay Area, California, and, notwithstanding anything to the contrary in the Rules, shall be conducted by one
(1) arbitrator. The arbitrator shall be chosen in accordance with the selection procedures set forth in the Rules. Judgment may be entered on the arbitrator's award in any court having jurisdiction. ACY and Executive agree that any
dispute in arbitration will be brought on an individual basis only, and not on a class, collective, or representative basis on behalf of others (this specific agreement to be referred to as the “Class Action Waiver.”) The Class Action
Waiver does not apply to any claim that Executive brings on behalf of both himself and others under the California Private Attorneys General Act.
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f.
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Attorneys' Fees. If any action is brought to enforce the rights and obligations set forth herein, the prevailing party shall be entitled to
receive all of the fees and costs, including reasonable attorneys' fees, incurred in the action. Any fees and costs awarded under this provision shall be in addition to any other relief awarded to the prevailing party.
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g.
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Assignment. This Agreement is binding upon and shall be for the benefit of the successors and assigns of the Company, including any
corporation or any other form of business organization with which the Company may merge or consolidate, or to which it may transfer substantially all of its assets. The Executive shall not assign his interest in this Agreement or any
part thereof.
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h.
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Employment Taxes. All payments made pursuant to this Agreement shall be subject to withholding of applicable taxes.
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i.
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Counterparts: This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
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j.
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Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed by first class mail, return receipt requested, or emailed at the following address
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a)
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is granted a full twenty one (21) days within which to consider this Separation Agreement
before executing it;
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b)
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has carefully
read and fully understands all of the terms and provisions of this Separation Agreement;
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c)
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is, through this
Separation Agreement, releasing the Released Parties from any and all claims he may have against any of the Released Parties;
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d)
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knowingly and
voluntarily agrees to all of the terms and provisions of this Separation Agreement;
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e)
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knowingly and
voluntarily intends to be legally bound by all of the terms and provisions of this Separation Agreement;
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f)
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was advised to, and has been given an opportunity to, consult an attorney of his choice before
executing this Separation Agreement;
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g)
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has a period of
seven (7) days following his execution of this Separation Agreement to revoke this Separation Agreement and has been and hereby is advised in writing that this Separation Agreement will not become effective and enforceable until the
revocation period has expired; and
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h)
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understands that
any claims under the Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., that may arise after the date this Separation Agreement is executed by Executive are not waived.
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DATED:_________________
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"EXECUTIVE"
By:_________________________________
Michael Magnusson
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DATED:_________________
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"EMPLOYER"
AEROCENTURY CORP.
By:_________________________________
Its: _________________________________
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