FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is made and entered into as of March 29, 2021, by and between Air Wisconsin Airlines LLC, a Delaware limited liability company (the Company), and Robert Binns (the Executive and, together with the Company, collectively, the Parties).
A. The Company and the Executive entered into an employment agreement dated as of March 20, 2019 (the Original Agreement), pursuant to which the Executive is currently serving as President and Chief Executive Officer of the Company. Capitalized terms used in this Amendment without definition that are defined in the Original Agreement shall have the meanings assigned to them in the Original Agreement. The Executive also serves on the Board of Managers of the Company (the Board) and on the Board of Directors of AWAC Aviation, Inc.
B. In April 2020, the Company entered into a Payroll Support Program Agreement (the PSP-1 Agreement) with the United States Department of the Treasury (Treasury), pursuant to which the Company received payroll support under the federal Coronavirus Aid, Relief, and Economic Security Act (the CARES Act).
C. In December 2020 the President signed the federal Consolidated Appropriations Act of 2021, Subtitle A of Title IV of Division N of which (the PSP Extension Law) provides for additional payroll support to eligible air carriers. The Company has entered into a Payroll Support Program Extension Agreement (the PSP-2 Agreement) with the Treasury, which is substantially similar to the PSP-1 Agreement.
D. In March 2021 the President signed the federal American Rescue Plan of 2021, Subtitle C of Title VII of which further extends the payroll support provided to eligible air carriers by the CARES Act and the PSP Extension Law. The Company currently anticipates that it will apply for payroll support and be required to enter into an agreement with the Treasury substantially similar to the PSP-1 Agreement and the PSP-2 Agreement. Such agreement may be referred to herein as the PSP-3 Agreement and, together with the PSP-1 Agreement and the PSP-2 Agreement, the PSP Agreements.
E. The PSP-1 Agreement and the PSP-2 Agreement contain, and the PSP-3 Agreement is expected to contain, substantially identical provisions that prohibit the Company or any Affiliate (as defined in the PSP Agreements) from paying, during any twelve month period in the period from March 24, 2020, through April 1, 2023 (the TC Cap Period), to any employee or officer, whose 2019 Total Compensation (as defined in the PSP Agreements) exceeded $425,000, Total Compensation that exceeds such employees or officers 2019 Total Compensation (such limit on Total Compensation, the TC Cap). The PSP Agreements also provide that, if an employee or officer was employed for less than all of 2019, the employees or officers Total Compensation for 2019 shall be determined on an annualized basis. The Parties have calculated the Executives 2019 Total Compensation, on an annualized basis and in accordance with the provisions of the PSP Agreements, to be $1,012,805, as shown in Schedule 1 attached hereto. It is possible, depending on the amount of any Incentive Bonuses and LTI Awards that would otherwise be paid to the Executive during the TC Cap Period, that the Executives Total Compensation determined in accordance with the Original Agreement would exceed the TC Cap.