a101employmentagreementd






    AMENDED AND RESTATED   EMPLOYMENT AGREEMENT     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”)  is made and entered into effective as of the 1st day of August, 2022 by and between D. SCOTT  SHELDON (hereinafter “Executive”), whose address is 1201 N. Town Center Drive, Las Vegas,  Nevada 89144, and ALLEGIANT TRAVEL COMPANY, a Nevada corporation (hereinafter  “the Company”), whose address is 1201 N. Town Center Drive, Las Vegas, Nevada 89144. This  Agreement restates and amends in its entirety that certain Employment Agreement between the  parties dated as of August 1, 2020 (the “Prior Agreement”).    W I T N E S S E T H      WHEREAS, the Company desires to employ Executive as its president and chief  operating officer, and Executive desires to be so employed pursuant to and in accordance with  the terms and conditions hereinafter set forth; and    WHEREAS, this Agreement supersedes the Prior Agreement as of the Effective Date;    NOW, THEREFORE, for and in consideration of the above premises, the terms and  covenants herein contained, and other good and valuable consideration, the receipt and  sufficiency of which is hereby acknowledged by Executive and the Company, it is hereby agreed  as follows:  1. Employment.  The Company hereby employs Executive and Executive hereby  accepts employment by the Company upon all of the terms and conditions as are hereinafter set  forth.  Terms of employment with the Company are also governed by the Company’s  employment policies in effect from time to time.  The Company shall provide a copy of such  employment policies to Executive upon request.  In the event of any conflict between the terms  of this Agreement and the generally applicable employment policies, the terms of this Agreement  shall prevail.  2. Scope of Services.  A. Executive shall be employed by the Company as a president and chief  operating officer of the Company and its operating subsidiaries.  Executive shall report to the  Company’s Chief Executive Officer or such other officer as the Company’s Board of Directors  may designate (“Supervising Officer”).  Executive’s duties shall include those indicated above  and such other duties assigned to him by the Supervising Officer from time to time.  Executive’s services are mutually agreed to be unique personal services.  Executive  acknowledges that the Company is relying upon Executive’s experience, expertise and other  qualifications in entering into this Agreement.  Executive shall not assign or delegate any right,  obligation or duty hereunder to any other person or entity without the express written consent of  the Company.  





 






- 2 -    B. During Executive’s period of service hereunder, Executive agrees to  perform such services not inconsistent with Executive’s position as shall from time to time be  assigned to Executive by the Supervising Officer.  During the term of this Agreement, except for  disability, illness and vacation periods, Executive shall devote Executive’s full productive time,  attention and energies to the positions of president and chief financial officer of the Company  and its operating subsidiaries.  C. Executive shall be required to reside in Las Vegas, Nevada during his  employment under this Agreement.  D. Executive’s expenditure of reasonable amounts of time in connection with  outside activities, not competitive with the business of the Company, such as outside  directorships or charitable activities, shall not be considered in contravention of this Agreement  so long as such activities do not interfere with his performance of this Agreement.  Further, it is  understood and agreed by the parties hereto that Executive is entitled to engage in passive and  personal investment activities not interfering with his performance of this Agreement.  3. Limitations of Duties.  Executive shall not, without consent first being given by  the Company, which consent may be general authority from the Company:  A. Take part in activities detrimental to the best interests of the Company,  including rendering any services to any other firm or entity which conflict or interfere with the  performance of Executive’s duties hereunder.  B. Exceed any limitations on his authority that may be established by the  Board.  C. Enter into any contract, oral or written, in the name of, for or on behalf of  the Company other than in the ordinary course of business.  D. Use any money belonging to the Company or pledge its credit other than  in the ordinary course of business.  E. Commit or suffer to be committed any act whereby the Company’s  property may be subject to attachment or seizure.  F. Cause the Company to become a guarantor, surety or endorser or give any  note for the benefit of any other person whomsoever.  Upon a breach of any provision under this Item 3, the Company shall have the right to terminate  this Agreement for Cause as set forth in Item 6E hereof and to pursue any other remedies  available to the Company as a result of such breach.  Executive shall indemnify and hold the Company harmless from and against any and all  damages, actions, causes of action, claims and other liabilities, contingent or otherwise, directed  toward the Company by others as a result of Executive’s violation of any of the provisions of this  Item 3.  





 






- 3 -    4. Compensation.    A. Compensation Through March 31, 2023. During the period from the  Effective Date through March 31, 2023, the following provisions shall apply:  (1) Base Compensation.  As base compensation (“Base Salary”) for providing  services hereunder, Executive shall be paid at the rate of Two Hundred Sixty  Thousand Dollars ($260,000) per annum to be paid monthly or in more frequent  installments as may be agreed upon by the Company and Executive.  The salary  payable to Executive shall be inclusive of any fees received by Executive as an  officer of the Company or any other company or corporate body in which  Executive holds an office as a nominee or representative of the Company.  (2) Annual Bonus.  Subject to the limitations in Paragraph 4D(8) below,  Executive shall be entitled to participate in the Company’s annual bonus program  (if any) as in effect from time to time and subject to meeting any requirements  established for participation in the bonus program and may also be granted a  discretionary bonus in such amount as may be determined by the Board of  Directors (the “Board”) in its sole discretion.    (3) Time-Based Restricted Stock.  Executive will be granted shares of restricted  stock (the “T-B Restricted Stock”) under the Company’s 2022 Long-Term  Incentive Plan (the “LTIP”) as follows: on August 1, 2022 (if the Executive  remains actively employed as of such date), a number of shares equal to  $2,100,000 divided by the closing price of the Company’s stock on such  date.  This grant of T-B Restricted Stock will vest in three (3) equal annual  installments commencing on the first anniversary of each date of grant. In other  words, the 2022 grant of T-B Restricted Stock will vest in 2023, 2024 and 2025.  Each grant of T-B Restricted Stock will be subject to the terms of a Restricted  Stock Agreement to be entered into between the Company and Executive to  evidence this grant. Executive shall be entitled to vote all vested and unvested  shares of T-B Restricted Stock  and to the extent allowed by the LTIP, receive all  dividends paid thereon, until and unless such time as such shares of T-B  Restricted Stock are forfeited in accordance with the terms of the Restricted Stock  Agreement evidencing such grant.    B. Grant on Expiration of CARES Act Compensation Limitations. As a  recipient of financial support under the Coronavirus Aid, Relief, and Economic Security Act of  2020 and subsequent payroll support programs (collectively, the “PSPs”), the Company is  subject to certain restrictions on executive compensation for employees who made over  $425,000 in 2019. These restrictions will continue to apply until at least April 1, 2023 and  possibly longer. At such time as the Company is no longer subject to the restrictions on  executive compensation under the PSPs, the Company shall grant to Executive an additional  10,000 shares of restricted stock (the “PSP Expiration Grant”) under the Company’s  LTIP  provided that the Executive remains actively employed as of such date. The PSP  





 






- 4 -    Expiration Grant will vest on the first anniversary of the date of grant. The PSP Expiration Grant  will be subject to the terms of a Restricted Stock Agreement to be entered into between the  Company and Executive to evidence this grant. From and after grant, Executive shall be entitled  to vote all vested and unvested shares of the Additional Restricted Stock and to the extent  allowed by the LTIP, to receive all dividends paid thereon, until and unless such time as such  shares of the PSP Expiration Grant are forfeited in accordance with the terms of the Restricted  Stock Agreement evidencing such grant.  C. Compensation for Period from April 1, 2023 through December 31, 2026.  During the period from April 1, 2023 through December 31, 2026, the following provisions shall  apply:  (1) No Base Salary. The equity grants described below are intended to be the sole  base compensation payable to Executive during this period under this  Agreement.  As such, Executive shall not be entitled to any base salary.  (2) No Participation in Annual Cash Bonus Plan.  The equity grants and cash  bonus opportunity based on stock price performance described below are  intended to be the sole compensation payable to Executive during this period.  As such, Executive shall not be entitled to participation in the Company’s  annual cash bonus plan.  However, Executive may be granted a discretionary  cash bonus for extraordinary performance in such amount as may be  determined by the Board in its sole discretion.      (3) Base Compensation Grant. In lieu of cash compensation in the form of base  salary or under the annual cash bonus plan), on April 3, 2023, Executive shall  receive a restricted stock grant in the amount of 84,000 shares and on January  1, 2024, a restricted stock grant in the amount of 13,000 shares (collectively,  the “Base Compensation Grant”) under the Company’s LTIP provided that  Executive remains actively employed by the Company as of such date. The  2023 Base Compensation Grant shall vest as follows: (i) 25,869 shares on  April 3, 2024 ; (ii) 12,933 shares on October 1, 2024; (iii) 11,200 shares on  April 1, 2025; (iv) 11,200 shares on October 1, 2025; (v) 11,200 shares on  April 1, 2026; (vi) 11,200 shares on October 1, 2026; and (vii) the final 398  shares on January 1, 2027, in each case, only if the Executive remains actively  employed by the Company as of the respective date. The 2024 Base  Compensation Grant shall vest as follows: (i) 1,733 shares on each of April 1,  2025, October 1, 2025, April 1, 2026 and October 1, 2026; and (ii) the  remaining 6.068 shares on January 1, 2027, in each case, only if the Executive  remains actively employed by the Company as of the respective date. The  Base Compensation Grants will be subject to the terms of Restricted Stock  Agreements to be entered into between the Company and the Executive to  evidence the grants.  From and after grant, Executive shall be entitled to vote  all vested and unvested shares of the Base Compensation Grant and to the  extent allowed by the LTIP, to receive all dividends paid thereon, until and  unless such time as such shares of the Base Compensation Grant are forfeited  





 






- 5 -    in accordance with the terms of this Agreement and the Restricted Stock  Agreement evidencing such grant.   (4) Performance Based Cash Bonus. Each calendar year from 2023 through 2026,  Executive shall be entitled to receive a cash bonus if the average closing price  of the Company’s stock during any twenty (20) consecutive trading day  period during the last six months of the year equals or exceeds the stock price  threshold set forth below, in each case, based only on the highest stock price  threshold met during the last six months of the year. If any stock price  threshold for a year is met, then the cash bonus shall be equal to the  Applicable Number of Shares for such year (from the chart below), multiplied  by the highest stock price threshold met for such year and with the result  multiplied by the Applicable Percentage for the stock price threshold met  (from the chart below). If no stock price threshold is met for any year, then no  cash bonus shall be paid for such year.     Year Applicable  Number of Shares Stock Price Threshold    Applicable  Percentage    2023 6,000 $140 25%   6,000 $150 50%   6,000 $160 75%   6,000 $170 100%  2024 7,000 $180 25%   7,000 $190 50%   7,000 $200 75%   7,000 $210 100%  2025 8,000 $225 25%   8,000 $235 50%   8,000 $245 75%   8,000 $255 100%  2026 9,000 $265 25%   9,000 $275 50%   9,000 $285 75%   9,000 $295 100%    By way of example, if the highest average closing price of the Company’s  stock during a 20 consecutive day period during the last six months of 2023  exceeds $170 per share, then the cash bonus for 2023 would be: 6,000 X $170  X 100% = $1,020,000.  





 






- 6 -    By way of further example, if the highest average closing price of the  Company’s stock during a 20 consecutive day period during the last six  months of 2025 exceeds $245 per share (but not $255 per share), then the cash  bonus for 2025 would be: 8,000 X $245 X 75% = $1,470,000.  For purposes of these cash bonus provisions, the average closing price will be  calculated as the arithmetic average of the 20 closing prices during the 20  consecutive day period and without regard for trading volume.   Any cash bonus earned will be payable within fifteen (15) days after the end  of the applicable year. The Company may choose to prepay any portion of the  cash bonus to the extent earned (that is, once the stock price has met the stock  price threshold for a 25%, 50% or 75% Applicable Percentage payment) with  any prepayment to reduce the amount of the final payment for such year.   If Executive’s employment terminates prior to the end of any year, Executive  shall be entitled to any cash bonus earned by virtue of meeting a stock price  threshold in the last six months of the year and prior to the date of termination,  but not further or otherwise.  (5) Stock Options. The Company shall grant Executive stock options as follows:  (a) As of April 3, 2023 (provided Executive remains in the  active employ of the Company as of such date), options to  purchase 6,000 shares at $170 per share exercisable only  during 2023;   (b) As of January 1, 2024 (provided Executive remains in the  active employ of the Company as of such date), options to  purchase 7,000 shares at $210 per share exercisable only  during 2024;   (c) As of January 1, 2024 (provided Executive remains in the  active employ of the Company as of such date), options to  purchase 8,000 shares at $255 per share exercisable only  during 2025; and    (d) As of January 1, 2024 (provided Executive remains in the  active employ of the Company as of such date), options to  purchase 9,000 shares at $295 per share exercisable only  during 2026.  Notwithstanding the above, the option price for any shares shall not be  less than the closing price of the Company’s stock as of the date of grant.  The options shall be exercisable only during the term of Executive’s  employment with the Company or within 90 days thereafter and shall be  subject to the terms of stock option agreements to be entered into between  Executive and the Company.  





 






- 7 -    D. Generally Applicable Provisions. The following provisions shall apply  throughout the term of this Agreement:  (1) No Participation in Future Equity Grants.  Executive shall not be eligible to  receive any further equity grants during the term of this Agreement.     (2) Fringe Benefits. The Company shall provide Executive health and dental  insurance for Executive and his spouse (if married) and family and such vacation  time, sick leave and other fringe benefits, including but not limited to  participation in any pension, 401(k) and employee benefit plans that may be  maintained by the Company from time to time as are made generally available to  other management employees of the Company in accordance with Company  policies.  The Company reserves the right to change the benefits available under  its benefit plans at any time or times.  (3) Positive Space Travel.  In recognition of Executive’s service in a senior  management role for the Company for many years, the following benefit is  provided. During the term of his employment with the Company and for a period  of five (5) years thereafter, Executive shall be entitled to passes for air travel on  the flights of the Company (and any successor-in-interest to the Company) for  Executive, his wife and children (up to age 21) on a positive space basis at no cost  to Executive.    (4) Expense Reimbursement.  In addition, the Company shall reimburse Executive  for any expenses incurred by Executive in connection with the business of the  Company, as approved by the Company.  These expenses may include expenses  for travel, business promotion, association memberships, and any other expenses  as may be approved by the Supervising Officer from time to time.  The Company  shall reimburse Executive for such out-of-pocket expenses by the tenth (10th) day  of the month following the month in which such expenses were incurred (and  appropriate documentation thereof has been provided to the Company).   The  Company may issue to Executive a company credit card.  In such event,  Executive agrees to use such card only for the expenses reimbursable under this  paragraph.  Executive agrees to keep the card securely.  In the event of loss or  theft, the issuing authority and the Company shall be informed immediately.  The  card shall be returned to the Company forthwith on the termination of Executive’s  employment for any reason whatsoever.  (5) Payroll Taxes.  Executive shall bear full responsibility for the employee  portion of all payroll taxes.  Such amounts may be paid, at Executive’s request, by  the cancellation of such number of shares of Restricted Stock as may be necessary  to fund the payroll tax obligation based on a value equal to the closing stock price  of the Company’s stock on the last trading day prior to the date of vesting.   





 






- 8 -    (6) Deductions.  Deductions shall be made from Executive’s salary for social  security, Medicare, federal and state withholding taxes, and any other such taxes  as may from time to time be required by governmental authority.   (7) Clawback Agreement.  In accordance with the Company’s clawback policy,  Executive hereby agrees to reimburse the Company for all or any portion of any  bonuses or incentive or equity-based compensation if the Compensation  Committee in good faith determines: (a) the payment or grant was based on the  achievement of certain financial results that were subsequently the subject of a  material financial restatement (other than as a result of a change in accounting  principles) and a lower payment or award would have occurred based upon the  restated financial results; or (b) the Executive engaged in fraud or intentional  misconduct related to the Company or its business. In each such instance, the  Company will, to the extent practicable and allowable under applicable law,  require reimbursement of any bonus or incentive or equity based compensation  awarded or effect the cancellation of any unvested or deferred stock awards  previously granted to the Executive in the amount by which the Executive’s bonus  or incentive or equity based compensation for the relevant period exceeded the  lower payment that would have been made based on the restated financial results,  or such other amount as determined by the Compensation Committee, provided  that the Company will not be entitled to recover bonuses or incentive or equity  based compensation paid more than three years prior to the date the applicable  restatement is disclosed.  (8) PSPs Limitations on Compensation. Notwithstanding anything herein to the  contrary, in no event shall any cash or stock-based compensation under this  Agreement (whether upon payment, grant, vesting or accelerated vesting) exceed  the limitations imposed upon the Company by virtue of accepting support from  the U.S. Treasury under the PSPs so long as those restrictions remain in effect. In  the event of any such restriction, the parties agree to use good faith to negotiate an  arrangement to provide the same value of compensation to Executive at a later  time or on other terms but in compliance with the PSPs.    (9) Release Required for Post-Termination Benefits. Notwithstanding anything  herein to the contrary, the acceleration of vesting of Restricted Stock, continued  payment of salary after termination and other post-termination benefits shall be  available to Executive under Items 4A(3), 4B, 4C(3), 4C(4), 4D(3), 6A, 6C and  6D in each case, if and only if Executive has executed and delivered to the  Company a release in the form attached hereto as Exhibit A or in such other form  agreed to by the parties and only so long as Executive has not revoked such  general release.    (10) Adjustments on Stock Splits or Dividends. In the event of any stock  dividend, stock split, combination or other similar recapitalization affecting shares  of the Company or in the event of a merger or acquisition affecting the  Company’s outstanding shares, the number of shares of restricted stock and stock  





 






- 9 -    options to be granted as of any subsequent date shall be adjusted accordingly and,  with respect to the performance based cash bonus, the stock price threshold to be  met with respect to the current or any subsequent calendar year shall also be  adjusted accordingly, each as determined by the Compensation Committee in  good faith, with such determination being final and binding.             5. Term. The initial term of this Agreement shall commence as of the date hereof  (the “Effective Date”) and shall continue until December 31, 2026.  The term of the Agreement  shall expire on such date absent a renewal signed by both parties.  6. Termination:  A. This Agreement shall be terminated upon Executive’s death or upon a  physician certified disability which permanently or indefinitely renders Executive unable to  perform his usual duties on behalf of the Company. In the event of Executive’s termination of  employment as a result of death or such a disability, the vesting of the following shares of  restricted stock shall be accelerated: all shares of Time-Based Restricted Stock, the PSP  Expiration Grant and the Base Compensation Grant, but only to the extent granted prior to the  date of death or disability and only to the extent such shares would have vested within three (3)  years after the date of death or disability.    B. Executive may, without “Good Reason” (as defined in paragraph D  below), terminate this Agreement by giving to the Company sixty (60) days written notice and  such termination shall be effective on the date specified by Executive but in no event earlier than  the sixtieth (60th) day following the date of such notice.  In such event, Executive shall continue  to render his services up to the Termination Date (as hereinafter defined) if so requested by the  Company.  In the event of such a resignation without Good Reason, all then unvested stock  options, restricted stock grants and stock appreciation rights held by Executive as of the  Termination Date shall be immediately forfeited.  C. The Company may, without “Cause” (as defined in paragraph E below),  terminate this Agreement at any time by giving to Executive written notice and such termination  shall be effective on the date specified by the Company.  At the option of the Company,  Executive shall immediately cease performing his duties hereunder upon receipt of the notice.  If  terminated without Cause pursuant to this paragraph C, Executive shall continue to receive his  full base salary through March 31, 2023 (if the termination is effective prior to that date) and  fringe benefits for the remaining term of this Agreement (but in no event for less than six (6)  months following Executive’s termination and the vesting of the following shares of restricted  stock shall be accelerated: all shares of Time-Based Restricted Stock, the PSP Expiration Grant  and the Base Compensation Grant, but only to the extent granted prior to the date of termination  and only to the extent such shares would have vested within three (3) years after the date of  termination.    





 






- 10 -    D. Executive may terminate this Agreement immediately for “Good Reason”.   For purposes of this Agreement, Good Reason shall be defined as (i) failure of the Company to  make any payment or provide any benefit to Executive hereunder, which failure is not cured  within thirty (30) days after the Company’s receipt of written notice of such default, or (ii) a  material diminution of Executive’s duties and responsibilities or his title without Executive’s  consent, or (iii) the principal location at which Executive is to perform his duties is relocated to a  place more than fifty (50) miles from Las Vegas, Nevada.  Any termination under this paragraph  D shall take effect immediately upon the Company’s receipt of written notice from Executive  after the expiration of any applicable cure period.  If Executive terminates this Agreement for  “Good Reason” pursuant to this paragraph D, Executive shall continue to receive his full base  salary through March 31, 2023 (if the termination is effective prior to such date) and fringe  benefits for the remaining term of this Agreement but in no event less than six (6) months  following Executive’s termination and the vesting of the following shares of restricted stock  shall be accelerated: all shares of Time-Based Restricted Stock, the PSP Expiration Grant and the  Base Compensation Grant, but only to the extent granted prior to the date of termination and  only to the extent such shares would have vested within three (3) years after the date of  termination.  E. The Company may terminate this Agreement immediately for “Cause”.   For purposes of this Agreement, “Cause” shall be defined as any of the following:  (i) Executive  shall commit a felony or other act involving moral turpitude, which other act is materially  detrimental to the Company; (ii) Executive shall knowingly commit any act of prohibited  conduct as set forth in Item 3 of this Agreement; (iii) Executive shall commit any act,  specifically including but not limited to drug or alcohol abuse, which act is materially harmful to  the Company, or which in the reasonable opinion of the Company’s Board brings the Company  into disrepute; (iv) Executive shall commit any act of fraud, dishonesty, theft or  misappropriation, whether or not related to his activities on behalf of the Company, including  providing false reports or accounts to the Company or deliberately making false statements about  the Company, its services, employees, customers or suppliers; (v) intentional or repeated  material neglect of Executive’s duties; (vi) breach by Executive of any other material provision  of this Agreement; (vii) Executive shall become the subject of a bankruptcy proceeding or  otherwise make an arrangement or composition with creditors generally; (viii) Executive shall  engage in anti-social behavior (such as fighting, indecency, harassment, sexual or racial  harassment or discrimination, intimidation of others, physical violence or assault) during the  course of performing duties for the Company or against another employee outside of work; (ix)  Executive shall have possession of illegal drugs at the Company’s workplace; or (x) Executive  shall perform duties in a negligent or dangerous manner which causes or is likely to cause  material loss or injury.  This Agreement may not be terminated by the Company under subclause  (v), (vi) or (x) of this Item unless and until the Company has provided Executive with written  notice of such violative conduct and Executive has failed to cure (or fails to commence and  thereafter diligently pursue the cure) such act within thirty (30) days after Executive’s receipt of  such written notice; provided, however, that no right to cure shall be available for a second or  subsequent violation of the same provision within any twelve (12) month period.  Any  termination under this paragraph E shall take effect immediately upon Executive’s receipt of  written notice from the Company or expiration of any applicable cure period, whichever is later.   The failure of the Company to terminate this Agreement for cause as a result of any of the  foregoing at any one or more times shall not affect the Company’s ability to terminate this  





 






- 11 -    Agreement for cause as a result of the subsequent occurrence of any act giving rise to “cause”  hereunder, provided that Executive is still provided with a notice to cure if applicable in  accordance with the above. In the event of a termination for Cause, all then unvested stock  options, restricted stock grants and stock appreciation rights held by Executive shall be  immediately forfeited.  F. Upon termination, Executive shall have no obligation to provide any  additional services, and except as expressly provided above, the Company shall only be  obligated pay to Executive the portion of any amounts due as of the termination date, together  with all unreimbursed out-of-pocket expenses incurred by Executive.  G. Termination of Executive’s Obligations.  In the event of the termination of  Executive’s employment during the term of this Agreement, Executive’s obligations under Item  7 of this Agreement shall survive the expiration of the term of this Agreement without renewal  and termination of Executive’s employment as provided in such Item. Unless the parties to this  Agreement mutually agree to extend the term of this Agreement, the restrictions under Item 7 of  this Agreement shall no longer apply after the expiration of the term of this Agreement if  Executive continues to be employed by the Company at that time.   H. Resignation of Positions upon Termination.  On the termination of this  Agreement for any reason whatsoever, Executive shall at the request of the Company  immediately resign (without prejudice to any claims which Executive may have against the  Company arising out of this Agreement or the termination thereof) from all and any offices  which Executive may hold as an officer or member of the Board of the Company and from all  other appointments or offices which Executive holds as a nominee or representative of the  Company and if Executive should fail to do so, the Company is hereby irrevocably authorized to  appoint another person in Executive’s name and on Executive’s behalf to sign any documents or  do anything necessary or requisite to effect such resignation(s) and/or transfers.  I. Termination Date.  For all purposes of this Agreement the “Termination  Date” shall refer to the effective date of termination as set forth above.  7. Restrictive Covenants.  As a material inducement to the Company’s employment  of Executive, the provisions of this Item 7 shall apply.  A. For purposes of this Item, the following terms and provisions shall have  the following meanings:  (i) “Prohibited Time Period” shall mean the period beginning on the  date of execution hereof and ending on the date that is twelve (12) months after the termination  of employment for any reason whatsoever of Executive.  (ii) “Prohibited Business” shall mean the business of providing charter  or scheduled airline service. The Prohibited Business shall include, but is not limited to,  employment with an existing airline or with a group which within one (1) year prior to the  termination of Executive’s employment or after the termination of employment, begins to take  steps to form a start-up airline.  





 






- 12 -    (iii) “Prohibited Geographic Area” shall mean the conduct of the  Prohibited Business within the United States or between the United States and Mexico, Canada  or the Caribbean, whether he is physically located in the Prohibited Geographic Area or whether  he is in contact with others located in the Prohibited Geographic Area.  Executive acknowledges  that he and the Company have agreed that Executive’s services will benefit the Company  throughout the Prohibited Geographic Area.  (iv) “Prohibited Capacity” shall mean service in the capacity of an  executive or in such other management position or as a significant equity owner or consultant,, in  which capacities Executive acknowledges that he has served or will serve the Company and its  subsidiaries during the course of his employment for the Company.  (v) “Prohibited Party” shall mean all travel partners of the Company  who (a) have contracted for regular chartered air service with the Company during the one (1)  year period prior to the date of termination of employment, or (b) whose services are sold by the  Company to produce ancillary third party revenue (such as Enterprise Rent-a-Car), (c) have been  solicited as potential travel partners of the Company at a meeting held at any time during the one  (1) year period prior to the date of termination of employment of Executive.  (vi) “Prohibited Employee” means any employee, independent  contractor or consultant of the Company who worked for the Company at any time within six (6)  months prior to the termination of employment of Executive; provided, however, that the term  “Prohibited Employee” shall not include any employee who had not been employed by the  Company within the one (1) year period immediately preceding the date contacted by Executive  for subsequent employment.  B. Executive agrees that during the Prohibited Time Period, he shall not, for  any reason, without the prior written consent of the Company, on his own behalf or in the service  or on behalf of others, serve in a Prohibited Capacity in the Prohibited Business in the Prohibited  Geographic Area.  C. Executive covenants and agrees that during the Prohibited Time Period, he  shall not, for any reason, directly or indirectly (whether as officer, director, consultant,  employee, representative, agent, partner, owner, stockholder or otherwise), (i) solicit charter air  services from, or market charter air services to, any Prohibited Party, or (ii) enter into a  transaction with such Prohibited Party as a result of which the Prohibited Party does, or is likely  to, reduce the amount of business between the Prohibited Party and the Company.  D. Executive agrees that during the Prohibited Time Period, he shall not, for  any reason, without the prior written consent of the Company, on his own behalf or in the service  or on behalf of others, hire any Prohibited Employee or request or induce any Prohibited  Employee to terminate that person’s employment or relationship with the Company or to accept  employment with any other person.  E. The parties agree that: (i) the covenants and agreements of Executive  contained in this Item are reasonably necessary to protect the interests of the Company in whose  favor said covenants and agreements are imposed in light of the nature of the Company’s  





 






- 13 -    business and the professional involvement of Executive in such business; (ii) the restrictions  imposed by this Item are not greater than are necessary for the protection of the Company in  light of the substantial harm that the Company will suffer should Executive breach any of the  provisions of said covenants or agreements; (iii) the covenants and agreements of Executive  contained in this Item have been independently negotiated between the parties and served as a  material inducement for the Company to enter into this Agreement;  (iv) the period and  geographical area of restriction referred to in this Item are fair and reasonably required for the  protection of the Company; and (v) the nature, kind and character of the activities Executive is  prohibited to engage in are reasonable and necessary to protect the Company in that the  Company will rely on Executive for those important aspects of its business.  F. Executive acknowledges that a material breach by Executive of any part of  this Item will result in irreparable and continuing damage to the Company and any material  breach or threatened breach of the covenants provided in this Item shall be subject to specific  performance by temporary as well as permanent injunction or any other equitable remedies of  any court of competent jurisdiction.  G. The covenants and agreements on the part of Executive contained in this  Item shall be construed as agreements independent of any other agreement between Executive  and the Company.  The existence of any claim or cause of action of Executive against the  Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to  the enforcement by the Company of each of such covenants and agreements or otherwise affect  the remedies to which the Company is entitled hereunder.  H. If the provisions of this Item 7 should ever be adjudicated to exceed the  time, geographic or other limitations permitted by applicable law in any jurisdiction, then such  provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or  other limitation permitted by applicable law.  I. Nothing contained in this Item shall restrict Executive from being a not  more than 1% stockholder (but not an officer, director, employee, consultant or advisor) of any  corporation that directly or indirectly competes with the Company provided the stock of such  competing corporation is publicly held and listed on a national stock exchange.  8. Confidential Information.  A. During the period beginning on the execution date of this Agreement and  ending on the fifth (5th) anniversary of any termination or expiration of this Agreement,  Executive agrees that he shall not, except in pursuit of the Company’s business or with the prior  written consent of the Company, for his own benefit or for the benefit of any other person or  entity:  (i) directly or indirectly disclose, reveal, report, duplicate or transfer  any Confidential Information to any other person or entity outside of the Company;  (ii) directly or indirectly aid, encourage, direct or allow any other  person or entity outside of the Company to gain possession of or access to Confidential  Information;  





 






- 14 -    (iii) directly or indirectly copy or reproduce Confidential Information,  except as required as part of Executive’s duties; or  (iv) directly or indirectly use, sell or exploit any Confidential  Information or aid, encourage, direct or allow any other person or entity to use, sell or  exploit any Confidential Information.  This covenant shall not apply to any Confidential Information now or hereafter  voluntarily disseminated by the Company to the public, or which otherwise has become part of  the public domain through means other than a breach of Executive’s duty of confidentiality  hereunder.  “Confidential Information”, for purposes of this Agreement, shall mean information  of the Company that constitutes a trade secret or confidential information under Nevada law and  shall include, but not be limited to,  all relevant information (whether or not reduced to writing  and in any and all stages of development), concerning the Company and its services, plans,  business practices, methods of operation, financial information,  names or lists of names of  employees, contractors, suppliers and customers, employee compensation and benefits, other  personal employee information, interpretations, surveys, forecasts, marketing plans, development  plans, notes, reports, market analyses, specialized software and databases and other information  related to suppliers and customers that could be used as a competitive advantage by competitors  if revealed or disclosed to such competitors or to persons or entities revealing or disclosing same  to such competitors; together with any and all extracts, summaries and photo, electronic or other  copies or reproductions, in whole or in part, stored in whatever medium. Confidential  Information also includes business information of the Company now known by Executive, or in  Executive’s possession, or hereafter learned or acquired by Executive that derives economic  value, actual or potential, from not being generally known to, and not being readily ascertainable  by proper means by other persons who can obtain economic value from its disclosure or use.  Confidential Information may be written or oral, expressed in electronic media or otherwise  disclosed, and may be tangible or intangible. Confidential Information also includes any  information made available to the Company by its customers or other third parties and which the  Company is obligated to keep confidential. Executive acknowledges that the Confidential  Information is secret, confidential and proprietary to the Company and has been or will be  disclosed to and/or obtained by Executive in confidence and trust for the sole purpose of using  the same for the sole benefit of the Company.    B. Executive hereby acknowledges and agrees that (i) the Company has  expended considerable and substantial time, effort and capital resources to develop the  Confidential Information, (ii) the Confidential Information is innovative and must receive  confidential treatment to protect the Company's competitive position in the market and the  Company's proprietary interest therein from irreparable damage, (iii) Executive, by virtue of his  relationship with the Company, has had and will have access to the Confidential Information,  and (iv) the Confidential Information and all physical embodiments or other repositories of the  same shall be and at all times remain the sole and exclusive property of the Company.  C. Since irreparable harm will otherwise result to the Company in the event  of a breach or threatened breach by Executive of the provisions of Item 8A, the Company shall  be entitled to an injunction restraining Executive from disclosing, in whole or in part, any  Confidential Information, or from rendering any services to any person, firm, company,  





 






- 15 -    association or other entity to whom such Confidential Information, in whole or in part, has been  disclosed or is threatened to be disclosed. Executive waives any requirement for the Company to  post a bond or prove actual economic damage prior to seeking injunctive relief.  9. Company Property.  A. Executive acknowledges that all recorded information, including without  limitation all notes, memoranda, records, documents, papers, computer disks, tapes, text or email  messages, Teams messages, visual presentations or other storage media and all other papers and  documents whatsoever which may have been prepared by Executive or have come into  Executive’s possession or control in the course of employment with the Company (the  “Documents”) and other materials owned or used by the Company shall at all times remain the  sole property of the Company.  B. Executive agrees to promptly, upon request of the Company and in any  event upon the termination of Executive’s employment with the Company for any reason  whatsoever, forthwith return to the Company all property whatsoever belonging to the Company  including, without limitation, any laptop computer belonging to the Company, security passes,  credit cards and all copies of the Documents which have come into Executive’s possession or  control in the course of employment with the Company and Executive shall not be entitled to and  shall not retain any copies thereof.  10. Professional Responsibility.  A. Executive agrees that he will provide in connection with the performance  of all services under this Agreement the skill and diligence normally provided by competent  professionals in the performance of services similar to that contemplated by this Agreement.  B. Both parties acknowledge and agree that a fiduciary and confidential  relationship has commenced and will continue to exist between them and that said relationship  will continue during the term of this Agreement.  C. Executive represents that he has no conflicts of interest in rendering his  professional services to the Company.  D. Executive shall not during the course of his employment (except as a  representative or nominee of the Company or otherwise with the prior consent in writing of the  Supervising Officer) be directly or indirectly engaged, concerned or interested in any other  business which: (i) is wholly or partly in competition with any business carried on by the  Company by itself or in partnership, common ownership or as a joint venture with any third  party; or (ii) is a supplier to or customer of the Company, provided that Executive may own not  more than one percent (1%) of the issued shares of any company which is publicly held and  listed on a national stock exchange or on the Nasdaq Stock Market.  E. Subject to any regulations from time to time issued by the Company,  Executive shall not receive or obtain directly or indirectly any discount, rebate, commission or  other inducement in respect of any sale or purchase of any goods or services effected or other  business transacted (whether or not by Executive) by or on behalf of the Company and if  





 






- 16 -    Executive (or any firm or company in which Executive is directly or indirectly engaged,  concerned or interested) shall obtain any such discount, rebate, commission or inducement,  Executive shall account to the Company for the amount received by Executive or the amount  received by such firm or company.  F. As an inducement to the Company to enter into this Agreement, Executive  represents and warrants that: (i) he is not a party to any other agreement or obligation for  personal services (other than the Prior Agreement); (ii) there exist no impediments or restraints,  contractual or otherwise, on Executive’s power, right or ability to enter into this Agreement and  to perform his duties and obligations hereunder; (iii) the performance of his obligations under  this Agreement do not and will not violate or conflict with any agreement relating to  confidentiality, non-competition or exclusive employment to which Executive is or was subject;  and (iv) Executive has not been involved in any legal proceedings that would be required to be  disclosed in response to Item 401(f) of Regulation S-K promulgated under the Securities Act of  1933, as amended.  As an inducement to Executive to enter into this Agreement, the Company  represents and warrants that there exist no impediments or restraints, contractual or otherwise, on  the Company’s power, right or ability to enter into this Agreement and to perform its duties and  obligations hereunder.  11. Ownership of Works and Materials.              A.        Executive agrees that all Works (as defined below) and Materials (as defined  below) are the sole and exclusive property of the Company.              B.        Executive also specifically acknowledges and agrees that any tangible  expression of any Works or Materials were developed, made or invented exclusively for the benefit  of and are the sole and exclusive property of the Company or its successors and assigns as “works  for hire” under Section 201 of Title 17 of the United States Code.              C.        In the event that any Works or Materials are deemed not to be a work for  hire, Executive agrees to assign, and does hereby irrevocably assign, to the Company all of his  right, title and interest in and to such Works and Materials.  Executive further agrees to take any  actions, including the execution of documents or instruments, which the Company may reasonably  require to effect Executive’s assignment of rights pursuant to this Item 11C, and Executive hereby  constitutes and appoints, with full power of substitution and resubstitution, the Company as  Executive’s attorney-in-fact to execute and deliver any documents or instruments which Executive  has agreed to execute and deliver pursuant to this Item 11C.              D.        Executive hereby waives and releases in favor of Company all rights in and  to the Works and Materials and agrees that Company shall have the right to revise, condense,  abridge, expand, adapt, change, modify, add to, subtract from, re-title or otherwise modify the  Works and Materials without Executive’s consent.              E.         For purposes of this Item 11, “Works” means any work, studies, reports or  analyses devised, developed, designed, formulated or reduced to writing by Executive at any time  while Executive is or has been employed by the Company, including, without limitation any and  





 






- 17 -    all compositions or works of authorship, concepts, compilations, abridgments, or other form in  which Executive may directly or indirectly recast, transform or adapt any of the foregoing.              F.         For purposes of this Item 11, “Materials” means any product, model,  document, instrument, report, plan, proposal, specification, manual, tape, and all reproductions,  copies or facsimiles thereof, or any other tangible item which in whole or in part contains,  embodies or manifests, whether in printed, handwritten, coded, magnetic, digital or other form,  any Works.  G.           In order to avoid any ambiguity in connection with the creation of any  Work which Executive claims is not covered by this Agreement, Executive agrees to disclose in  writing to the Company complete details on any Works that are devised, developed, designed,  formulated or reduced to writing by Executive at any time while Executive is or has been employed  by the Company.  Such disclosure shall be made promptly upon development, design or  formulation with respect to any Works created while Executive is employed by the Company, and  shall be disclosed in writing pursuant to such form as the Company may from time to time provide  12. Business Opportunities. For so long as Executive is employed by the Company,  Executive will not, without the prior written consent of the Company (which consent may be  withheld by the Company in the exercise of its absolute discretion), engage, directly or  indirectly, in any business, venture or activity that Executive is aware or reasonably should be  aware that the Company or any affiliate of the Company is engaged in, intends at any time to  become engaged in, or might become engaged in if offered the opportunity, or in any other  business, venture or activity if the Company reasonably determines that such activity would  adversely affect the business of the Company or any affiliate thereof or the performance by  Executive of any of Executive’s duties or obligations to the Company.  13.  Privacy Waivers.    A. The Company reserves the right to stop and search any employee or  property of any employee when entering or leaving the Company’s premises.  B. The Company reserves the right to monitor at any time telephone calls,  electronic communications and information transmitted on Company networks or on computer  equipment which is owned by the Company or on computers on Company premises that are used  for Company business.  14. Notice.  All notices required or sent hereunder shall be sent by personal delivery,  by overnight priority mail via a nationally recognized overnight delivery company, or by  certified mail, return receipt requested to the address of the party entitled to receive the notice as  set forth above.  Notices sent in accordance with this paragraph shall be deemed received upon  personal delivery, one (1) business day after delivery to a nationally recognized overnight  delivery company or five (5) days after mailed, as aforesaid.  15. Breach by the Company.  If there is a dispute regarding the payment of any sum  by the Company hereunder, the Company shall not be deemed to have failed to have made a  payment hereunder if pending the resolution of such dispute, the Company pays the amount in  





 






- 18 -    dispute into court or into an escrow account at the Company’s bank or with the Company’s  counsel.  16. Remedies Not Exclusive.  The rights, remedies and benefits herein expressly  specified are cumulative and not exclusive of any rights, remedies or benefits which any party  may otherwise have.  17. Invalid Provisions.  The invalidity of any one or more of the clauses or words  contained in this Agreement shall not affect the reasonable enforceability of the remaining  provisions of this Agreement, all of which are inserted herein conditionally upon being valid in  law; and in the event that one or more of the words or clauses contained herein shall be invalid,  this instrument shall be construed as if such invalid words or clauses had not been inserted or,  alternatively, said words or clauses shall be reasonably limited to the extent that the applicable  court interpreting the provisions of this Agreement considers to be reasonable.  18. Binding Effect.  This Agreement, as it relates to restrictions applicable to  Executive, is a personal contract and the rights and interests of Executive hereunder may not be  sold, transferred, assigned, pledged or hypothecated.  However, this Agreement shall inure to the  benefit of and be binding upon Company and its successors and assigns including, without  limitation, any corporation or other entity into which Company is merged or which acquires all  or substantially all of the outstanding ownership interests or assets of Company.    19. Jurisdiction.  Each of the undersigned further agrees that any action or proceeding  brought or initiated in respect of this Agreement may be brought or initiated in the United States  District Court for the State of Nevada or in any District Court located in Clark County, Nevada,  and each of the undersigned consents to the exercise of personal jurisdiction and the placement  of venue in any of such courts, or in any jurisdiction allowed by law, in any such action or  proceeding and further consents that service of process may be effected in any such action or  proceeding in the manner provided in Section 14.065 of the Nevada Revised Statutes or in such  other manner as may be permitted by law.  Each of the undersigned further agrees that no such  action shall be brought against any party hereunder except in one of the courts above named.  20. Attorney’s Fees.  In the event an action is taken by either party to enforce this  Agreement or resolve a dispute in connection herewith, the prevailing party shall be entitled to  recover the costs incurred with the prosecution and defense of such action, including reasonable  attorney’s fees.  21. Miscellaneous.  This Agreement shall be construed under and governed by the  laws of the State of Nevada other than its conflicts of laws principles.  This Agreement contains  the complete understanding of the parties with respect to the subject matter of this Agreement  and supersedes all other prior agreements, understandings and negotiations relating to the same  subject matter.  This Agreement may only be modified by a written instrument signed by each of  the parties hereto.  No provisions of this Agreement will be interpreted in favor of, or against,  any of the parties hereto by reason of the extent to which any such party or its counsel  participated in the drafting thereof or by reason of the extent to which any such provision is  inconsistent with any prior draft hereof or thereof.  Failure to require strict compliance with any  term or provision of this Agreement shall not constitute a waiver of a party’s right to insist upon  





 






- 19 -    strict compliance with each and every provision of this Agreement.  No waiver of any terms and  conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of that or  any other term of condition.  This Agreement may be executed in one or more counterparts, each  of which shall be deemed to be an original, but all of which together shall constitute one and  same instrument.  The provisions of Item 3 (the last paragraph), 4D(3), 4D(7), 4D(8), 6H, 7, 8, 9,  11 and 14 through 21 shall survive the termination of this Agreement and Executive’s  employment with the Company.  This Agreement may be executed by any party by delivery of a  facsimile signature, which signature shall have the same force as an original signature.  Any  party which delivers a facsimile signature shall promptly thereafter deliver an originally executed  signature to the other party; provided, however, that the failure to deliver an original signature  page shall not affect the validity of any signature delivered by facsimile. The paragraph headings  contained in this Agreement are for reference only and shall not be deemed to impart substantive  meeting to any provision of this Agreement.  Each party has had the opportunity to be  represented by counsel of its choice in negotiating this Agreement.  This Agreement shall  therefore be deemed to have been negotiated and prepared at the joint request and direction of  the parties, at arm’s length, with the advice and participation of counsel, and shall be interpreted  in accordance with its terms and without favor to any party.    [SIGNATURE PAGE FOLLOWS]     





 






- 20 -     IN WITNESS WHEREOF, this Agreement has been signed, sealed and delivered as of  the date and year first above written.     EXECUTIVE:           D. SCOTT SHELDON     COMPANY:     ALLEGIANT TRAVEL COMPANY       By:       Title:       





 






- 21 -    Exhibit A  Form of Release  THIS RELEASE (the “Release”) is entered into between D. Scott Sheldon (“Executive”)  and Allegiant Travel Company, a Nevada corporation (the “Company”), for the benefit of the  Company.  The entering into and non-revocation of this Release is a condition to Executive’s right  to receive certain payments under Items 4A(3), 4B, 4C(3), 4C(4), 4D(3), 6A, 6C and 6D of the  Employment Agreement entered into by and between Executive and the Company, effective as of  August 1, 2022 (the “Employment Agreement”). Capitalized terms used and not defined herein  shall have the meaning provided in the Employment Agreement.  Accordingly, Executive and the Company agree as follows.  1.  In consideration for the compensation and other benefits provided to Executive  under Items 4A(3), 4B, 4C(3), 4C(4), 4D(3), 6A, 6C and 6D (as applicable) of the Employment  Agreement to which Executive would not otherwise be entitled, Executive represents and agrees,  as follows:  (a) Executive, for himself, his heirs, administrators, representatives, executors,  successors and assigns (collectively “Releasors”), hereby irrevocably and unconditionally  releases, acquits and forever discharges and agrees not to sue the Company or any of its  subsidiaries, divisions, affiliates and related entities and its current and former directors, officers,  shareholders, trustees, employees, consultants, independent contractors, representatives, agents,  servants, successors and assigns and all persons acting by, through or under or in concert with any  of them (collectively “Releasees”), from all claims, rights and liabilities up to and including the  date of this Release arising from or relating to Executive’s employment with, or termination of  employment from, the Company, under the Employment Agreement and from any and all charges,  complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions,  causes of actions, suits, rights, demands, costs, losses, debts and expenses of any nature  whatsoever, known or unknown, suspected or unsuspected and any claims of wrongful discharge,  breach of contract, implied contract, promissory estoppel, defamation, slander, libel, tortious  conduct, employment discrimination or claims under any federal, state or local statute, law, order  or ordinance, including any rights or claims arising under Title VII of the Civil Rights Act of 1964,  as amended, the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et  seq. (“ADEA”), or any other federal, state or municipal ordinance. Nothing contained herein shall  restrict the parties’ rights to enforce the terms of this Release.  (b) To the maximum extent permitted by law, Executive agrees that he has not  filed, nor will he ever file, a lawsuit asserting any claims which are released by this Release.  (c) Notwithstanding the foregoing, this Release specifically excludes (i) any  unpaid compensation or benefits accrued through the date of Executive’s termination of  employment, (ii) Executive’s rights and the Company’s obligations under Items 4A(3), 4B, 4C(3),  4C(4), 4D(3), 6A, 6C and 6D (as applicable) of the Employment Agreement, (iii) claims for  unemployment benefits, (iv) Executive’s vested account balance, if any, in the Company’s 401(k)  plan, and (v) Executive’s right, if any, to elect continued group health coverage for himself and  





 






- 22 -    his eligible family members under Part 6 of Title I of ERISA.  Nothing contained in this Release  shall release Executive from his obligations, including any obligations to abide by restrictive  covenants under the Employment Agreement or any other agreement that continue or are to be  performed following termination of employment.  (d) The parties agree that this Release shall not affect the rights and  responsibilities of the US Equal Employment Opportunity Commission (hereinafter “EEOC”) to  enforce ADEA and other laws. In addition, the parties agree that this Release shall not be used to  justify interfering with Executive’s protected right to file a charge or participate in an investigation  or proceeding conducted by the EEOC.  The parties further agree that Executive knowingly and  voluntarily waives all rights or claims (that arose prior to Executive’s execution of this Release)  the Releasors may have against the Releasees, or any of them, to receive any benefit or remedial  relief (including, but not limited to, reinstatement, back pay, front pay, damages, attorneys’ fees,  experts’ fees) as a consequence of any investigation or proceeding conducted by the EEOC.  2. Executive acknowledges that the Company has specifically advised him of the right  to seek the advice of an attorney concerning the terms and conditions of this Release. Executive  further acknowledges that he has been furnished with a copy of this Release, and he has been  afforded twenty-one (21) days in which to consider the terms and conditions set forth above prior  to this Release.  By executing this Release, Executive affirmatively states that he has had sufficient  and reasonable time to review this Release and to consult with an attorney concerning his legal  rights prior to the final execution of this Release.  Executive further agrees that he has carefully  read this Release and fully understands its terms.  Executive understands that he may revoke this  Release within seven (7) days after signing this Release.  Revocation of this Release must be made  in writing and must be received by [●] at [●] within the time period set forth above.  3. This Release will be governed by and construed in accordance with the laws of the  state of Nevada, without giving effect to any choice of law or conflicting provision or rule (whether  of the state of Nevada or any other jurisdiction) that would cause the laws of any jurisdiction other  than the state of Nevada to be applied.  In furtherance of the foregoing, the internal law of the state  of Nevada will control the interpretation and construction of this agreement, even if under such  jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other  jurisdiction would ordinarily apply.  The provisions of this Release are severable, and if any part  or portion of it is found to be unenforceable, the other paragraphs shall remain fully valid and  enforceable.  This Release shall become effective and enforceable on the eighth day following its  execution by Executive, provided he does not exercise his right of revocation as described above.   If Executive fails to sign and deliver this Release or revokes his signature, this Release will be  without force or effect, and Executive shall not be entitled to those payments or benefits under  Items 4A(3), 4B, 4C(3), 4C(4), 4D(3), 6A, 6C or 6D of the Employment Agreement, as applicable,  which are conditioned upon the execution of this Release.