{"id":39411,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-new-air-corp-and-david-barger.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-new-air-corp-and-david-barger","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-new-air-corp-and-david-barger.html","title":{"rendered":"Employment Agreement &#8211; New Air Corp. and David Barger"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n            THIS EMPLOYMENT AGREEMENT (the \"Employment Agreement\"), dated as of\nthis 14 day of October, 1998, is entered into by and among New Air Corporation\n(the \"Company\" or \"Employer\") and David Barger (\"Executive\"). In consideration\nof the mutual covenants and agreements hereinafter set forth, the parties agree\nas follows:\n\n            1. EMPLOYMENT.\n\n            1.1. POSITION. During the Employment Term (as hereinafter defined)\nand subject to the terms and conditions set forth herein, the Company agrees to\nemploy Executive as its President and Chief Operations Officer reporting to the\nBoard of Directors of the Company.\n\n            1.2. DUTIES. Executive shall diligently, and to the best of his\nability, perform all such duties incident to his positions and use his best\nefforts to promote the best interests of the Company.\n\n            1.3. TIME TO BE DEVOTED TO EMPLOYMENT. During the Employment Term,\nExecutive shall devote his full time and energy to the business of the Company\nand shall not be engaged in any competitive business activity without the\nexpress written consent of the Company. Executive hereby represents that he is\nnot a party to any agreement which would be an impediment to entering into this\nEmployment Agreement and that he is permitted to enter into this Employment\nAgreement and perform his obligations hereunder.\n\n            2. COMPENSATION AND BENEFITS.\n\n            2.1. SIGNING BONUS. In consideration of Executive's entering into\nthis Employment Agreement, the Company is paying to Executive on the date hereof\na one-time signing bonus equal to approximately $65,000 (the \"Signing Bonus\"),\n$34,604.69 of which shall be paid to the Company on behalf of Executive as the\npurchase price for 1,333 shares of the Company's Common Stock. The exact amount\nof the bonus will be the amount necessary to cover the $34,604.69 payment to the\nCompany for the Common Stock, plus the amount necessary to cover all Federal,\nstate and local taxes payable by the Executive on account of the Signing Bonus.\nThe Company will deduct and withhold from the Signing Bonus payable to Executive\nhereunder any and all applicable Federal, state and local income and employment\nwithholding taxes and any other amounts required to be deducted or withheld by\nthe Company under applicable statute or regulation.\n\n            2.2. ANNUAL SALARY. In consideration of and as compensation for the\nservices agreed to be performed by Executive hereunder, the Company agrees to\npay Executive commencing on the Effective Date a starting annual base salary of\nTwo Hundred Thousand dollars ($200,000), payable in accordance with the\nCompany's regular payroll schedule (\"Base Salary\"), less applicable withholdings\nand deductions. The Base Salary will be subject to increase at the sole\ndiscretion of the Board of Directors of the Company.\n\n            2.3. PERFORMANCE BONUS. Executive shall be entitled to bonuses in\naccordance with the Company bonus plan for Company officers to be established\nand implemented by the\n\n\n\nBoard of Directors of the Company payable in accordance with the Company's\nstandard policy provided that Executive shall be entitled to a guaranteed\nminimum annual bonus of $75,000 (the \"Guaranteed Bonus\") during the Employment\nTerm. The Company will deduct and withhold from any bonus payable to Executive\nhereunder any and all applicable Federal, state and local income and employment\nwithholding taxes and any other amounts required to be deducted or withheld by\nthe Company under applicable statute or regulation.\n\n            2.4. PARTICIPATION IN BENEFIT PLANS. During the Employment Term,\nExecutive shall be entitled to participate in any pension, group insurance,\nSection 401(k), vision, dental, medical hospitalization, annual physical,\ndisability or other similar benefit plan, to the extent permitted by law, that\nmay from time to time be adopted by the Board of Directors of the Company, that\nis generally available to the other executive officers of the Company. The\nCompany reserves the right to amend, modify or terminate any employee benefits\nat any time for any reason. Until such time as the Company's medical plans are\nin place, the Company shall reimburse Executive's cost in continuing his\nexisting medical insurance coverage under COBRA.\n\n            2.5. REIMBURSEMENT OF EXPENSES; MOVING EXPENSES. The Company shall\nreimburse Executive for all reasonable business expenses incurred by Executive\non behalf of the Company during the Employment Term, provided that: (i) such\nreasonable expenses are ordinary and necessary business expenses incurred on\nbehalf of the Company, and (ii) Executive provides the Company with itemized\naccounts, receipts and other documentation for such expenses as are reasonably\nrequired by the Company. The Company shall also reimburse Executive for\nrelocation expenses incurred within six months of the date hereof in connection\nwith Executive's relocation to the New York City area (including the real estate\ncommission on the sale of Executive's current home).\n\n            2.6. VACATION. During the Employment Term, Executive will be\nentitled to five (5) weeks of paid vacation per annum.\n\n            3. EMPLOYMENT TERM.\n\n            3.1. EMPLOYMENT TERM. The \"Employment Term\" means the period\ncommencing on the closing of the Company's first equity financing which yields\nproceeds to the Company in excess of $5 million (the \"Effective Date\") and\nterminating on the earlier of five (5) years from the Effective Date or as set\nforth in Section 4.1.\n\n            3.2. NOTICE OF RENEWAL. At least sixty (60) days prior to the\nnatural expiration of the initial Employment Term of this Employment Agreement\nand sixty (60) days prior to each one-year anniversary thereafter, if\napplicable, the Company shall give Executive written notice of whether the\nCompany will be seeking a one-year extension of Executive's services beyond the\ninitial Employment Term or subsequent one-year period, if applicable. Unless\nsuch notice indicates that there will be no extension, the term of this\nEmployment Agreement shall be automatically renewed for successive one-year\nperiods. However, Executive's employment with Employer will continue unless\nterminated by Executive or the Company as set forth in Section 4.1.\n\n\n                                       2\n\n\n            4. TERMINATION OF EMPLOYMENT.\n\n            4.1. METHOD OF TERMINATION. Executive's employment pursuant to this\nEmployment Agreement and the Employment Term provided for herein shall terminate\nupon the first of the following to occur (either with the Company, or the\nCompany or its successors):\n\n                  A. Executive's death; or\n\n                  B. Date that written notice is deemed given or made by the\nCompany to Executive that as a result of any physical or mental injury or\ndisability, he is unable to perform the essential functions of his job, with or\nwithout reasonable accommodation. Such notice may be issued when the Board of\nDirectors of the Company has reasonably determined that Executive has become\nunable to perform substantially his services and duties hereunder with or\nwithout reasonable accommodation because of any physical or mental injury or\ndisability, and that it is reasonably likely that he will not be able to resume\nsubstantially performing his services and duties on substantially the terms and\nconditions as set forth in this Employment Agreement; or\n\n                  C. Date that written notice is deemed given or made by the\nCompany to Executive of termination for \"Cause\" (for purposes of this Employment\nAgreement, \"Cause\" shall have the meaning set forth in that certain Restricted\nStock Purchase Agreement dated as of September 18, 1998 between the Company and\nExecutive); or\n\n                  D. Date that written notice is deemed given or made by\nExecutive of his voluntary departure or resignation as an employee of the\nCompany; or\n\n                  E. Date that written notice is deemed given or made by the\nCompany to Executive of Executive's termination without \"Cause.\"\n\nNothing herein alters Executive's and the Company's separate right to terminate\nthe employment relationship at any time, for any reason, with or without Cause.\n\n            4.2. NOTICE OF TERMINATION. Any termination of Executive's\nemployment either by the Company or by Executive shall be communicated by\nwritten Notice of Termination to the other party hereto in accordance with\nSection 7.1 hereof.\n\n            4.3. DATE OF TERMINATION. \"Date of Termination\" shall mean the date\nspecified in the Notice of Termination.\n\n            4.4. EFFECT OF TERMINATION WITHOUT CAUSE. In the event the Company\nterminates Executive's employment with the Company without Cause, Executive\nshall be entitled to his then existing Base Salary and the Guaranteed Bonus for\nthe entire period remaining of the Employment Term, payable in accordance with\nstandard Company policy. Executive will receive an immediate lump sum payment of\nall unpaid and accrued vacation up to the Date of Termination.\n\n            4.5. EFFECT OF TERMINATION FOR OTHER EVENTS. Upon the termination of\nExecutive for any reason other than as set forth in Section 4.4 hereof,\nExecutive will not be entitled to any additional compensation or other rights or\nbenefits from the Company, and, as a\n\n\n                                       3\n\n\nresult, the Company shall be obligated to pay Executive only that portion of his\nthen existing Base Salary that Executive has earned prior to the Date of\nTermination of Executive's employment with the Company. Executive will also\nreceive an immediate lump payment for all unpaid and accrued vacation up to the\nDate of Termination.\n\n            4.6. RESIGNATION AS AN OFFICER AND DIRECTOR. In the event\nExecutive's employment with the Company terminates for any reason, Executive\nagrees to immediately resign as an officer and\/or director of the Company.\n\n            5. CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE\n\n            5.1. Executive understands that the Company and its affiliates\npossess Proprietary Information (as defined below) which is important to its\nbusiness and that this Employment Agreement creates a relationship of confidence\nand trust between Executive and the Company and its affiliates with regard to\nProprietary Information. Nothing in this Section 5 shall be deemed modified or\nterminated in the event of the termination or expiration of this Employment\nAgreement.\n\n            5.2. For purposes of this Employment Agreement, \"Proprietary\nInformation\" is information that was or will be developed, created, or\ndiscovered by or on behalf of the Company and its affiliates and predecessors,\nor is developed, created or discovered by Executive while performing services\nunder this Employment Agreement, or which became or will become known by, or was\nor is conveyed to the Company and its affiliates which has commercial value in\nthe Company's and its affiliates' business. \"Proprietary Information\" includes,\nbut is not limited to, trade secrets, ideas, techniques, business, product, or\ndevelopment plans, customer information, and any other information concerning\nthe Company's and its affiliates' actual or anticipated business, development,\npersonnel information, or which is received in confidence by or for the Company\nand its affiliates from any other person.\n\n            5.3. At all times, both during the term of this Employment Agreement\nand after its termination, Executive will keep in confidence and trust, and will\nnot use or disclose, any Proprietary Information without the prior written\nconsent of the Company's Board of Directors.\n\n            5.4. Executive understands that the Company and its affiliates\npossess or will possess \"Company Documents\" which are important to its business.\nFor purposes of this Employment Agreement, \"Company Documents\" are documents or\nother media that contain or embody Proprietary Information or any other\ninformation concerning the business, operations or plans of the Company and its\naffiliates, whether such documents have been prepared by Executive or by others.\n\"Company Documents\" include, but are not limited to, blueprints, drawings,\nphotographs, charts, graphs, notebooks, customer lists, computer disks,\npersonnel files, tapes or printouts and other printed, typewritten or\nhandwritten documents. All Company Documents are and shall remain the sole\nproperty of the Company. Executive agrees not to remove any Company Documents\nfrom the business premises of the Company or deliver any Company Documents to\nany person or entity outside the Company, except as required to do in connection\nwith performance of the services under this Employment Agreement. Executive\n\n\n                                       4\n\n\nfurther agrees that, immediately upon the Company's request and in any event\nupon completion of Executive's services, Executive shall deliver to the Company\nall Company Documents, apparatus, equipment and other physical property or any\nreproduction of such property.\n\n            5.5. NON-SOLICITATION. During the term of this Employment Agreement\nand for one year thereafter, Executive will not encourage or solicit any\nemployee of the Company or any affiliate to leave the Company's or any\naffiliate's employ for any reason or interfere in any material manner with\nemployment relationships at the time existing between the Company and its\ncurrent employees, except as may be required in any bona tide termination\ndecision regarding any Company employee.\n\n            5.6. NON-COMPETITION. During the Employment Term, Executive shall\nnot directly or indirectly own, manage, operate, join, control or participate in\nthe ownership, management, operation or control of, or be employed by or\nconnected in any manner with, any enterprise which is engaged in any business\ncompetitive with that which the Company is at the time conducting or proposing\nto conduct; PROVIDED, however, that such restriction shall not apply to any\npassive investment representing an interest of less than two percent (2%) of an\noutstanding class of publicly traded securities of any corporation or other\nenterprise which is not, at the time of such investment, engaged in a business\ngeographically competitive with the Company's business.\n\n            5.7. Executive acknowledges that the specialized nature of his\nknowledge of the Company's Proprietary Information, trade secrets and other\nintellectual property are such that a breach of his covenant not to compete or\nconfidentiality obligations contained in this Section 5 of this Employment\nAgreement would necessarily and inevitably result in a disclosure,\nmisappropriation and misuse of such Proprietary Information, trade secrets and\nother intellectual property. Accordingly, Executive acknowledges and agrees that\nsuch a breach would inflict unique and irreparable harm upon the Company and\nthat the Company shall be entitled, in addition to its other rights and\navailable remedies, to enforce, by injunction or decree of specific performance,\nExecutive's obligations set forth herein.\n\n            6. RESTRICTIVE COVENANT.\n\n            During the Employment Term:\n\n            6.1. Executive shall devote substantially all of his time and energy\nto the performance of Executive's duties described herein, except during periods\nof illness or vacation periods.\n\n            6.2. Executive shall not directly or indirectly provide services to\nor through any person, firm or other entity except the Company, unless otherwise\nauthorized by the Company in writing; provided however that nothing contained\nhere shall prevent Executive from serving as a member of the board of directors\nof other corporations.\n\n            6.3. Executive shall not render any services of any kind or\ncharacter for Executive's own account or for any other person, firm or entity\nwithout first obtaining the Company's written consent.\n\n\n                                       5\n\n\n            6.4. Notwithstanding the foregoing, Executive shall have the right\nto perform such incidental services as are necessary to connection with (i) his\nprivate passive investments, but only if Executive is not obligated or required\nto (and shall not in fact) devote any managerial efforts which interfere with\nthe services required to be performed by him hereunder, (ii) his charitable or\ncommunity activities or (iii) participation in trade or professional\norganizations, but only if such incidental services do not significantly\ninterfere with the performance of Executive's services hereunder.\n\n            7. MISCELLANEOUS.\n\n            7.1. NOTICES. All notices, demands and requests required by this\nEmployment Agreement shall be in writing and shall be deemed to have been given\nor made for all purposes (i) upon personal delivery, (ii) one day after being\nsent, when sent by professional overnight courier service, (iii) five days after\nposting when sent by registered or certified mail, or (iv) on the date of\ntransmission when sent by telegraph, telegram, telex, or other form of \"hard\ncopy\" transmission, to either party hereto at the address set forth below or at\nsuch other address as party may designate by notice pursuant to this Section 7.\n\n         If to the Company, to:\n\n         New Air Corporation\n         6322 South 3000 East, Suite L-201\n         Salt Lake City, Utah 84121\n\n         If to Executive, to:\n\n         Dave Barger\n         16 Sugar Maple Row\n         Chester, New Jersey 07930\n\n            7.2. ASSIGNMENT. This Employment Agreement shall be binding on, and\nshall inure to the benefit of, the parties hereto and their respective heirs,\nlegal representatives, successors and assigns; provided, however, that Executive\nmay not assign, transfer or delegate his rights or obligations hereunder and any\nattempt to do so shall be void.\n\n            7.3. DEDUCTIONS. All amounts paid to Executive hereunder are subject\nto all withholdings and deductions required by law, as authorized under this\nEmployment Agreement, and as authorized from time to time.\n\n            7.4. ENTIRE AGREEMENT. This Employment Agreement contains the entire\nagreement of the parties with respect to the subject matter hereof, and all\nprior agreements, written or oral, are merged herein and are of no further force\nor effect. Executive has had an opportunity to review this Employment Agreement\nwith counsel of his own choice.\n\n            7.5. AMENDMENT. This Employment Agreement may be modified or amended\nonly by a written agreement signed by the Company and Executive.\n\n\n                                       6\n\n\n            7.6. WAIVERS. No waiver of any term or provision of this Employment\nAgreement will be valid unless such waiver is in writing signed by the party\nagainst whom enforcement of the waiver is sought. The waiver of any term or\nprovision of this Employment Agreement shall not apply to any subsequent breach\nof this Employment Agreement.\n\n            7.7. COUNTERPARTS. This Employment Agreement may be executed in\nseveral counterparts, each of which shall be deemed an original, but together\nthey shall constitute one and the same instrument.\n\n            7.8. SEVERABILITY. The provisions of this Employment Agreement shall\nbe deemed severable, and if any part of any provision is held illegal, void or\ninvalid under applicable law, such provision may be changed to the extent\nreasonably necessary to make the provision, as so changed, legal, valid and\nbinding, If any provision of this Employment Agreement is held illegal, void or\ninvalid in its entirety, the remaining provisions of this Employment Agreement\nshall not in any way be affected or impaired but shall remain binding in\naccordance with their terms.\n\n            7.9. GOVERNING LAW. THIS EMPLOYMENT AGREEMENT AND THE RIGHTS AND\nOBLIGATIONS OF THE COMPANY AND EXECUTIVE HEREUNDER SHALL BE DETERMINED UNDER,\nGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE\nAS APPLIED TO AGREEMENTS AMONG DELAWARE RESIDENTS ENTERED INTO AND TO BE\nPERFORMED ENTIRELY WITHIN DELAWARE.\n\n      7.10. ARBITRATION. The Executive understands and agrees that, as a\ncondition of his employment with the Company, any and all disputes that the\nExecutive may have with the Company or any of its employees, officers,\ndirectors, agents or assigns, which arise out of the Executive's employment or\ninvestment or compensation shall be resolved through final and binding\narbitration, as specified in this Employment Agreement. This shall include,\nwithout limitation, any controversy, claim or dispute of any kind, including\ndisputes relating to any employment by the Company or the termination thereof,\nclaims for breach of contract or breach the covenant of good faith and fair\ndealing, infliction of emotional distress, defamation and any claims of\ndiscrimination, harassment or other claims under Title VII of the Civil Rights\nAct of 1964, the Age Discrimination in Employment Act, the Americans With\nDisabilities Act, the Employee Retirement Income Securities Act, or any other\nFederal, state or local law or regulation now in existence or hereinafter\nenacted and as amended from time to time concerning in any way the subject of\nthe Executive's employment with the Company or its termination. The only claims\nNOT covered by this Employment Agreement are claims for benefits under the\nunemployment insurance or workers' compensation laws, and any claims pursuant to\nparagraph 5 of this Employment Agreement which will be resolved pursuant to\nthose laws. Any disputes and\/or claims covered by this Employment Agreement\nshall be submitted to final and binding arbitration to be conducted in New York\nCity, New York, in accordance with the rules and regulations of the American\nArbitration Association. The Executive and the Company will split the cost of\nthe arbitration filing and hearing fees and the cost of the arbitrator. Each\nside will bear its own attorneys' fees, and the arbitrator will not have\nauthority to award attorneys' fees UNLESS a statutory section at issue in the\ndispute authorizes the award of attorneys' fees to the prevailing party, in\nwhich case the arbitrator has authority to make such award as permitted by\n\n\n                                       7\n\n\nthe statute in question. The arbitration shall be instead of any civil\nlitigation; this means that the Executive is WAIVING ANY RIGHT TO A JURY TRIAL,\nand that the arbitrator's decision shall be final and binding to the fullest\nextent permitted by law and enforceable by any court having jurisdiction\nthereof.\n\n      IN WITNESS WHEREOF, the parties hereto have executed this Employment\nAgreement as of the date first above written.\n\n                                    \"COMPANY\"\n\n                                    New Air Corp.\n                                    ----------------------------------------\n\n\n                                    By: \/s\/ David Neeleman\n                                       -------------------------------------\n                                    Name: David Neeleman\n                                         -----------------------------------\n                                    Title: CEO\n                                          ----------------------------------\n\n\n                                    \"EXECUTIVE\"\n\n\n                                    \/s\/ David Barger     14  Oct. '98\n                                    ----------------------------------------\n\n\n                                       8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7939],"corporate_contracts_industries":[9521],"corporate_contracts_types":[9539,9544],"class_list":["post-39411","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-jetblue-airways-corp","corporate_contracts_industries-transportation__air","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39411","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39411"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39411"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39411"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39411"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}