Exhibit
10.10


 


AMENDED
AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT


 


This
Amended and Restated Executive Employment Agreement (“Agreement”)
is made and entered into as of April 22, 2010 by and between Erickson
Air-Crane Incorporated, a Delaware corporation (the “Company”),
and H. E. “Mac” McClaren (“Executive”).


 


1.                                      Terms and Conditions. 
This Agreement is subject to the terms and conditions set forth on Exhibit A.


 


2.                                      Title. 
Executive shall serve as Vice President, Aerial Services of the
Company.  Executive will report to, and
be directed by, the Company’s Chief Executive Officer (“CEO”).


 


3.                                      Salary and Benefits. 
Executive’s initial base salary (the “Base Salary”)
is $200,000 per year, payable in equal installments in accordance with the
Company’s standard payroll practices, subject to applicable income tax and
employment tax withholding requirements. 
Executive will be eligible for an annual target bonus of up to 40% of
Base Salary, which will be determined by, and payable in accordance with, the
Company’s management bonus plan policies and procedures, as determined by the
Board of Directors (the “Board”) or a
committee of the Board from time to time (the “Target Bonus”).  Executive will be eligible for standard
benefits offered to similarly situated employees.


 


4.                                      Termination and Severance. 
Executive’s employment is “at-will” and may be terminated by Executive
or the Company with or without cause and with or without prior notice.  Except as described in Exhibit A, upon
Executive’s termination of employment, Executive will be entitled only to
current Base Salary and any accrued, unused vacation compensation, in each case
only to the extent earned as of the date of termination.  Upon termination of Executive’s employment,
his options, restricted stock, and restricted stock units will be treated as
set forth in the agreements representing those options, restricted stock, and
restricted stock units.


 


5.                                      Other Agreements; Integration. 
This Agreement, the Proprietary Rights, Invention Assignment &
Confidentiality Agreement executed by Executive of even date herewith, and the
exhibits to this Agreement, including the terms and conditions attached as Exhibit A
and Section 6 of the Executive Employment Agreement dated January 7,
2009 (the “Prior Agreement”) between the
Company and Executive attached as Exhibit B, set forth the entire
agreement of the Company and Executive in respect of the subject matter
contained in this Agreement.  Executive
reaffirms his agreement to Section 6 of the Prior Agreement.  Executive acknowledges that the time,
scope, and geographic area and other provisions of Section 6 of the Prior
Agreement were negotiated by sophisticated parties, and Executive agrees that
they are reasonable under the circumstances. 
Except as
described in this Section 5, this Agreement replaces and supersedes any
and all prior or contemporaneous negotiations, communications, understandings,
obligations, commitments, agreements, or contracts, whether written or oral,
between the parties respecting the subject matter of this Agreement, including
Sections 1-5 and 7-8 of the Prior Agreement.


 

















 


The Company and Executive acknowledge that each had the opportunity to
consult with legal and financial counsel concerning the rights and obligations
arising under this Agreement, that each has read and understands this
Agreement, and that each enters into it willingly.


 


This Agreement is duly executed and delivered as of the day and year
stated above.


 


	
  Erickson Air-Crane
  Incorporated

  	
   

  	
  Executive

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Udo Rieder

  	
   

  	
  /s/ H. E. McClaren

  
	
   

  	
  Udo Rieder

  	
   

  	
  H. E. “Mac” McClaren

  
	
   

  	
  Chief Executive Officer

  	
   

  	
   

  



 


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Exhibit A


 


Terms and Conditions


 


1.                                      Position and Duties. 
Executive shall perform duties consistent with his position as Vice
President, Aerial Services of the Company, as well as additional duties as may
be mutually agreed upon by Executive and the Company.  Executive’s primary place of employment will
be at the Company’s headquarters in Portland, Oregon, or any other location as
the CEO may determine.  From time to
time, Executive’s duties may require him to travel and attend meetings at
various locations throughout the world, including to the Company’s other
facilities and the facilities of its subsidiaries and affiliates.  Executive shall at all times faithfully and
to the best of Executive’s abilities and experience, and in accordance with the
Company’s policies, procedures and standards of conduct and ethics, perform all
duties required by the Agreement and by the directives of the CEO and Board.


 


2.                                      Limitations on Outside Activities. 
During Executive’s employment with the Company, Executive shall not
engage in any activity that conflicts with or is detrimental to the Company’s
best interests, as determined by the Company in its sole discretion, and
Executive will devote his full business time, ability, knowledge and attention
to the Company’s business affairs and interests.  Except for activities expressly authorized by
the prior written approval of the CEO during his employment, Executive will
not:  (a) engage in any business
activities other than on behalf of the Company; (b) serve as an officer,
general partner, or member in any for-profit corporation, partnership or firm;
or (c) directly or indirectly invest in, participate in, or acquire an
interest in any entity engaged in a similar or competing business, except that
Executive may make passive investments in the publicly traded stock of any
entity whose securities are listed on a public exchange, provided that Executive
does not acquire more than one percent of the outstanding publicly traded
shares.  Nothing in this section
precludes Executive from engaging in charitable, educational, or other civic or
non-profit activities, if those activities do not interfere with Executive’s
duties to the Company or otherwise reflect negatively upon the Company.


 


3.                                      Base Salary. 
The Company will review Executive’s base salary on an annual basis
during Executive’s employment and will make adjustments to the Base Salary as
is deemed appropriate in the Company’s sole discretion.  The Company also will reimburse Executive for
any reasonable business expenses Executive incurs in performing his duties,
subject to the Company’s standard employee expense reimbursement policies.  Executive shall not be entitled to additional
compensation for service as an officer or director for any of the Company’s
subsidiaries or affiliates or in any similar office or position which Executive
assumes within the Company or in which the Company holds an interest.


 


4.                                      Bonus Compensation. 
The Target Bonus will be subject to the terms and conditions of Company’s
bonus plan for the given year.


 


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5.                                      Benefits. 
All benefits are subject to the terms and conditions of each of the
Company’s applicable plans, policies, or arrangements, which the Company may
amend or terminate from time to time without notice.


 


6.                                      Severance Compensation.


 


6.1                               Definitions.


 


(i)                                     “Cause”
means:  (i) a breach of any material
provision of the Agreement or the Proprietary Rights, Invention Assignment &
Confidentiality Agreement; (ii) fraud or an act of dishonesty in
connection with Executive’s employment; (iii) gross misconduct or gross
negligence; (iv) willful or habitual neglect in the performance of
Executive’s duties after having received written notice calling Executive’s
attention to the deficiency and requiring improvement; (v) the making of
disparaging remarks about the Company, its products, employees, services, or
other business, or otherwise causing any injury to the economic or ethical
welfare of the Company; (vi) sexual or any other prohibited form of
harassment or discrimination; (vii) violation of any material Company
policy, procedure or guideline; or (viii) engaging in any of the following
forms of misconduct:  commission of any
felony or of any misdemeanor involving dishonesty or moral turpitude; theft or
misuse of Company’s property or time; insubordination; appearing on Company
premises while intoxicated or while under the influence of controlled
substances; illegal gambling on Company’s premises; or falsifying any document
or making any false or misleading statement relating to Executive’s employment
by the Company.


 


(ii)                                  A “Change of Control”
occurs upon the completion of any of the following events in a single
transaction or in a series of related transactions:  (i) a merger or consolidation in which
the Company is not the surviving entity, except for a transaction the principal
purpose of which is to change the state of the Company’s incorporation or a
transaction in which 50% or more of the surviving entity’s outstanding voting
stock following the transaction is held by holders who held 50% or more of the
Company’s outstanding voting stock before the transaction; (ii) the sale,
transfer or other disposition of all or substantially all of the assets of the
Company; (iii) any reverse merger in which the Company is the surviving
entity if, immediately after the merger, 50% or more of the Company’s
outstanding voting stock is transferred to holders different from those who
held the stock immediately before the merger; or (iv) the acquisition by
any person (or entity), directly or indirectly, of 50% or more of the combined
voting power of the outstanding shares of Company’s common stock.


 


(iii)                               “Disability”
means that Executive, due to physical or mental illness, becomes incapable of
performing the essential functions of his position, 


 


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with or without
reasonable accommodation, for three months in the aggregate during any period
of six consecutive months.


 


(iv)                              “Good Reason”
means a material reduction in Executive’s duties, level of responsibility or
authority, other than reductions solely attributable to the Company becoming a
subsidiary or division of another company or isolated incidents that are
promptly remedied by the Company.


 


6.2                               Severance Payment Upon
Termination Due to Death or Disability; by Company Without Cause; by Executive
for Good Reason After a Change in Control.


 


(i)                                     If Executive’s employment with the
Company is terminated by the Company without Cause, by Executive’s for Good
Reason following a Change in Control, or as a result of Executive’s death or,
consistent with applicable law, Executive’s Disability, then, in addition to
the payment described in Section 4 of the Agreement and in consideration
of:  (i) Executive’s execution
within 30 days of the date of termination of a final, complete, and
enforceable release, in substantially the form attached as Attachment A
(as the Company may amend from time to time), of all claims that either
Executive or Executive’s estate has or may have against the Company relating to
or arising in any way from Executive’s employment and employment termination; (ii) complete
and continuing confidentiality for the Company’s proprietary information and
trade secrets and the circumstances of Executive’s separation from the Company;
and (iii) Executive’s or Executive’s estate’s continued compliance with
Sections 7, 9, and 10 of this Exhibit A, the Proprietary Rights, Invention
Assignment & Confidentiality Agreement, and all other agreements
entered into by Executive with the Company; the Company shall pay to Executive
or his estate severance compensation in an amount equal to Executive’s annual
Base Salary in effect as of the date of termination in equal installments at
the end of each calendar month for the nine-month period following Executive’s
termination, beginning only after expiration of the revocation period for the
claims release and for the nine-month period following Executive’s termination,
the Company shall continue to provide Executive with medical benefits under the
standard terms and conditions offered to the Company’s employees.  The Company shall deduct all legally required
and authorized employment taxes and withholdings from amounts payable pursuant
to this Section 6.2(a).


 


(ii)                                  It is a condition precedent to Executive’s
right to terminate employment for Good Reason that (i) Executive first
give the Company written notice stating with reasonable specificity the breach
on which termination is premised within 90 days of the occurrence and (ii) if
the breach is susceptible of cure or remedy, the Company has not cured or
remedied the breach within 30 days after receiving notice.


 


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6.3                               Other Termination. 
The Agreement may terminate upon the Company’s termination of Executive’s
employment for Cause or Executive termination of his employment other than for
Good Reason after a Change in Control. 
In either case, Executive will only be entitled the rights described in Section 4
of the Agreement.


 


7.                                      Return of Company Property. 
Executive agrees that, following the termination of his employment for
any reason, he shall return all property of the Company, its direct and
indirect parents, their respective subsidiaries, affiliates and any divisions
thereof which is then in or thereafter comes into his possession, including,
but not limited to, documents, contracts, agreements, plans, photographs, books,
notes, electronically stored data and all copies of the foregoing as well as
any automobile or other materials or equipment supplied by the Company or its
affiliates to Executive.


 


8.                                      Compliance with Section 409A.


 


8.1                               Limitation on Payments upon Termination
of Employment.  To the extent that any payment or benefit
described in this Agreement constitutes “deferral of compensation” within the
meaning of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and to the extent that such payment or benefit is payable upon
Executive’s termination of employment, then such payments or benefits shall be
payable only upon Executive’s “separation from service.”  The determination of whether and when a
separation from service has occurred shall be made in accordance with the
presumptions set forth in Treasury Regulation Section 1.409A-1(h).


 


8.2                               Required Delay For Certain
Deferred Compensation and Section 409A.  Anything in
this Agreement to the contrary notwithstanding, if the Company determines that
at the time of Executive’s separation from service with the Company Executive
is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of
the Code, then to the extent any payment or benefit that Executive becomes
entitled to under this Agreement on account of Executive’s separation from
service would be considered deferred compensation subject to the
20 percent additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of Section 409A(a)(2)(B)(i) of
the Code, such payment shall not be payable and such benefit shall not be
provided until the date that is the earlier of (A) six months and one
day after Executive’s separation from service, or (B) Executive’s
death.  Within 30 days following the end
of the six-month period, or, if earlier, Executive’s death, the Company shall
make a catch-up payment to Executive equal to the total amount of the payments
that would have been made during the six-month period but for the previous
sentence, together with simple interest at the prime rate of interest as
published by the Wall Street Journal’s bank survey as of the first day of the
six-month period.  Wherever payments
under the Agreement are to be made in installments, each installment is treated
as a separate payment for purposes of Section 409A of the Code.


 


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8.3                               Reimbursements. Any amount that Executive is entitled to
be reimbursed under the Agreement will be reimbursed to Executive as promptly
as practical and in any event not later than the last day of the calendar year
in which the expenses are incurred, and the amount of the expenses eligible for
reimbursement during any calendar year will not affect the amount of expenses
eligible for reimbursement in any other calendar year.


 


8.4                               Compliance with Section 409A. 
The parties intend that this Agreement will be administered in
accordance with Section 409A of the Code. 
To the extent that any provision of this Agreement is ambiguous as to
its compliance with Section 409A of the Code, the provision shall be read
in such a manner so that all payments hereunder comply with Section 409A
of the Code.  The parties agree that this
Agreement may be amended, as reasonably requested by either party, and as may
be necessary to fully comply with Section 409A of the Code and all related
rules and regulations in order to preserve the payments and benefits
provided hereunder without additional cost to either party.


 


8.5                               No Representations of Warranties. 
The Company makes no representation or warranty and shall have no
liability to Executive or any other person if any provisions of this Agreement
are determined to constitute a deferral of compensation subject to Section 409A
of the Code but do not satisfy an exemption from, or the conditions of, such
section.


 


9.                                      Enforcement.


 


9.1                               Equitable Relief Authorized. 
Executive acknowledges that if he violates any provision contained in
the Agreement, the Company’s business interests will be irreparably injured,
the full extent of the Company’s damages will be impossible to ascertain,
monetary damages will not be an adequate remedy for the Company, and the
Company will be entitled to enforce the Agreement to prevent a breach or
threatened breach of the Agreement by temporary, preliminary or permanent
injunction or other equitable relief without the necessity of proving actual
damage and without the necessity of posting bond or security, which Executive
expressly waives.  Executive also agrees
that the Company may, in addition to seeking injunctive relief, seek monetary
damages for any breach of the Agreement in addition to equitable relief and
that the granting of equitable relief shall not preclude the Company from
recovering monetary damages.


 


9.2                               Modification. 
The Company and Executive represent that in entering into the Agreement
it is their intent to enter into an agreement that contains reasonable
employment and post-employment restrictions and that those restrictions be
enforceable under law.  If any court or
other enforcement authority determines that any provision of the Agreement is
overly broad or unenforceable by reason of the geographic scope, scope of
prohibited activities, time frame, or any other reason, the parties authorize
any court or other enforcement authority to modify the scope of the restriction
so that it is enforceable to the greatest extent permissible.


 


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9.3                               Severability. 
If any provision of the Agreement is held to be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.


 


10.                               General Terms.


 


10.1                        Nondisclosure. 
Executive shall not disclose any term of the Agreement to any person or
entity, except that Executive may disclose any information as required by
subpoena or court order, or to an attorney or tax or financial adviser to the
extent necessary to obtain professional advice.


 


10.2                        Indemnification; Insurance
Against Liability.  Executive is entitled to prevailing rights
and entitlements to indemnification, defense of claims and insurance against
liability as are generally provided to the Company’s employees, consistent with
the Company’s certificate of incorporation, bylaws, insurance policies and contracts,
and applicable law.


 


10.3                        Governing Law; Interpretation;
Venue.  The Agreement is governed by the substantive
laws of Oregon, without regard to the principles of conflicts of laws.  The Agreement is construed as a whole,
according to its fair meaning, and not in favor of or against any party,
regardless of which party may have initially drafted certain provisions of the
Agreement.  The parties hereby consent to
the exclusive jurisdiction of, and venue in, any federal or state court located
in the county of Multnomah, Oregon, for the purposes of adjudicating any
dispute, controversy, or claim arising out of or relating to (i) the
Agreement, and its enforcement, interpretation, termination, applicability or
validity, (ii) an alleged breach, default, or misrepresentation in
connection with any of its provisions, or (iii) Executive’s employment
with the Company or employment termination, including any and all claims for
employment discrimination or harassment, civil tort and any other employment
laws or state or federal statutory claims.


 


10.4                        Assignment. 
The Agreement is personal to Executive and he may not assign it without
the Company’s prior written consent.  The
Company may, without Executive’s consent, assign the Agreement to any successor
entity, but shall notify Executive promptly upon assignment.


 


10.5                        Notices. 
Any notice required or permitted under the Agreement must be in writing
and is treated as having been duly given if delivered by hand, by express
commercial delivery service, or if sent by certified mail, postage and
certification prepaid, to Executive at his residence (as noted in the Company’s
records), or to the Company address, or to any other address or addresses as
either party may furnish to the other in writing.


 


10.6                        Counterparts. 
The Agreement may be executed simultaneously in two counterparts, each
of which is deemed an original and all of which together constitute one and the
same instrument.


 


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Exhibit B


 


Section 6
of the Executive Employment Agreement dated January 7, 2009


 


6.                                      Restrictive Covenants.


 


6.1                               Non-Competition. 
During the term of this Agreement and for a period of twelve (12) months
following the termination of Executive’s employment for any reason, Executive
shall not, without the advance written permission of the Board, directly or
indirectly engage in any business or activity in competition with the Company
within the United States of America, Italy, Canada, Australia, Greece, France,
Korea, Malaysia, Brazil, Dubai or China, or anywhere else where the Company
conducts business as of the date of termination of Executive’s employment.  For purposes of this Agreement, the phrase “directly
or indirectly engage in any business or activity” or any derivative thereof
shall include, but not be limited to, any of the following actions by
Executive:


 


(a)                                  carrying on or engaging in any such
business as a principal, or on his own account, or solely or jointly with
others as a director, officer, member, manager, agent, managing agent,
employee, security holder, consultant, partner, owner, principal, trustee or
beneficiary of a trust, or shareholder or limited partner or otherwise; or


 


(b)                                 carrying on or engaging in negotiations
with respect to the acquisition or disposition of any such business in any
capacity; or


 


(c)                                  lending credit or money to any third
party for the purpose of establishing or operating any such business; or


 


(d)                                 giving advice to any other person, firm,
association, corporation or other entity engaging in any such business; or


 


(e)                                  contributing, lending or allowing the
skill, knowledge or experience of Executive to be used in any such business.


 


6.2                               Non-Solicitation. 
For a period of twelve (12) months following the termination of
Executive’s employment for any reason, Executive will not, directly or
indirectly, in any capacity or position, whether on his own behalf or on behalf
of or in conjunction with any other person, persons, company, partnership,
corporation or business entity:


 


(a)                                  Solicit any prospective Acquisition
Candidate for the purpose of acquiring such entity;


 


(b)                                 Solicit for competitive business any
person or entity which is at the time of such solicitation, and which was
during the period of Executive’s employment, a customer of the Company;


 


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(c)                                  Solicit any person who is, at the time of
such solicitation, an employee of the Company for the purpose or with the
intent of enticing such employee to resign his employment;


 


For purposes of
this Agreement, an “Acquisition Candidate” is any company, partnership,
corporation or other business entity that, during the period of Executive’s
employment, (1) was identified for potential acquisition by the Company,
through merger, sale of assets or otherwise, and (2) which was the subject
of an acquisition analysis by, or was party to acquisition discussions with,
the Company, provided that, no entity shall be deemed an Acquisition Candidate
unless Executive, by virtue of his employment with the Company, acquired knowledge
that such entity had been identified for potential acquisition by the Company.


 


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