AMENDED and RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED and RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“AGREEMENT”), dated as of November 28, 2007
(the “EFFECTIVE DATE”), by and among US AIRWAYS GROUP, INC., a Delaware corporation (“GROUP”), US
AIRWAYS, INC., a Delaware corporation and a wholly-owned subsidiary of Group (“AIRWAYS”, and,
together with Group, “EMPLOYERS” and individually, an “EMPLOYER”), and W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(“▇▇▇▇▇▇”).
WHEREAS, ▇▇▇▇▇▇ is currently serving as Chairman and Chief Executive Officer of Group and
Airways;
WHEREAS, the Employers and ▇▇▇▇▇▇ initially formalized the terms of the employment
relationship in this Agreement effective February 24, 2004;
WHEREAS, the Employers and ▇▇▇▇▇▇ desire to amend the Agreement in order to extend the term of
the Agreement as well as to bring the Agreement into compliance with Section 409A of the Internal
Revenue Code of 1986, as amended, and to make certain other changes;
WHEREAS, the Employers and ▇▇▇▇▇▇ wish to formalize such extension and revisions to the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
| 1.1 | DEFINITIONS |
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, the following terms shall have the following respective meanings:
“ACCOUNTING FIRM” shall have the meaning specified in Section 4.6(a).
“ADMINISTRATOR” shall have the meaning specified in Section 6.1.
“ANNUAL AWARD” shall have the meaning specified in Section 3.2.
“ARBITRATORS” shall have the meaning specified in Section 6.1.
“BASE SALARY” shall have the meaning specified in Section 3.1.
“BOARD” shall mean the Board of Directors of Group.
“CEO” shall mean, when used with reference to any Constituent Company, the chief executive
officer of such Constituent Company.
“CHAIRMAN” shall mean, when used with reference to any Constituent Company, the Chairman of
the board of directors of such Constituent Company.
Subject to the terms of Section 7.8(a) below, “CHANGE IN CONTROL” shall occur on the first
date after the Effective Date that any of the following occur:
(i) Within any 12-month period, the individuals who constitute the Board at the beginning of
such period (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by Group’ stockholders, was approved by a vote of at
least two-thirds of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board; or
(ii) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act), other than the Employers, acquires (directly or indirectly) the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of
the combined voting power of the then outstanding voting securities of Group or Airways entitled to
vote generally in the election of directors (“Voting Power”); or
(iii) Group or Airways shall consummate a merger, consolidation or reorganization of Group or
Airways or any other similar transaction or series of related transactions (collectively, a
“Transaction”) other than (A) a Transaction in which the voting securities of Group or Airways
outstanding immediately prior thereto become (by operation of law), or are converted into or
exchanged for, voting securities of the surviving corporation or its parent corporation immediately
after such Transaction that are owned by the same person or entity or persons or entities as
immediately prior thereto and possess at least 50% of the Voting Power held by the voting
securities of the surviving corporation or its parent corporation, or (B) a Transaction effected to
implement a recapitalization of Group or Airways (or similar transaction) in which no person
(excluding Group or Airways or any person who held more than 50% of the Voting Power immediately
prior to such Transaction) acquires more than 50% of the Voting Power; or
(iv) Group or Airways shall sell or otherwise dispose of, or consummate a transaction or
series of related transactions providing for the sale or other disposition of, all or substantially
all of the stock or assets of Airways or shall enter into a plan for the complete liquidation of
either Group or Airways.
“COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
“CODE” shall mean the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder as in effect from time to time.
“CONFIDENTIAL INFORMATION” shall have the meaning specified in Section 5.1(a).
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“CONSTITUENT COMPANIES” shall mean, collectively, Group and Airways and all other direct or
indirect subsidiaries of Group.
“DISABILITY” shall mean a physical or mental condition of ▇▇▇▇▇▇ that, in the good faith
judgment of not less than a majority of the entire membership of the Board, based upon
certification by a licensed physician reasonably acceptable to ▇▇▇▇▇▇ and the Board, (i) prevents
▇▇▇▇▇▇ from being able to perform the essential functions of the services required under this
Agreement, (ii) has continued for a period of at least six months during any period of twelve
consecutive months and (iii) is expected to continue.
“DISPUTE” shall have the meaning specified in Section 6.1.
“EMPLOYMENT PERIOD” shall mean the period commencing on the Effective Date and ending on the
Expiration Date; provided, however, that if either Group or ▇▇▇▇▇▇ gives a Notice of Termination
pursuant to Section 4.1 or 4.2, then the Employment Period shall not extend beyond the relevant
Termination Date.
“EXCHANGE ACT” shall mean the Securities Exchange Act of 1934, as amended.
“EXCISE TAX” shall have the meaning specified in Section 4.6.
“EXPIRATION DATE” shall mean December 31, 2011; provided, however, that commencing on January
1, 2011 and on each January 1 thereafter, the Expiration Date shall automatically be extended one
additional year unless, not later than the September 30 prior to such January 1, either party shall
give written notice to the other party that the Expiration Date shall cease to be so extended.
“GROSS-UP PAYMENT” shall have the meaning specified in Section 4.6.
“GOOD REASON” shall mean any of the following actions or failures to act, but in each case
only if it occurs during the Employment Period and then only if it is not consented to by ▇▇▇▇▇▇ in
writing:
(i) a material diminution by an Employer in the nature or scope of ▇▇▇▇▇▇’▇ applicable titles,
positions, functions, duties or responsibilities described in Section 2.2, including any change
which would alter ▇▇▇▇▇▇’▇ reporting responsibilities described in Section 2.2; provided, however,
that each such alteration shall cease to be a Good Reason on the date that is 180 days after the
occurrence of such alteration unless, prior to such date, ▇▇▇▇▇▇ gives a Notice of Termination
pursuant to Section 4.1 on account of such alteration;
(ii) the failure of an Employer to perform any of its obligations under this Agreement in any
material regard, including without limitation:
(A) a failure to perform an obligation under Section 3 hereof,
(B) the failure of an Employer to obtain any assumption agreement required by
Section 7.5(a),
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(C) the failure of an Employer to elect or re-elect, or to appoint or
re-appoint, ▇▇▇▇▇▇ to the applicable offices described in paragraphs (a) or (b) of
Section 2.2, or
(D) the failure of ▇▇▇▇▇▇ to be elected or appointed, or to be re-elected or
re-appointed, as Chairman of either Employer as contemplated by Section 2.2,
but only if such failure shall continue unremedied for more than 30 days after written notice
detailing such failure is given by ▇▇▇▇▇▇ to Group;
(iii) the relocation of the principal executive offices of an Employer outside the greater
Phoenix, Arizona metropolitan area or an Employer’s requiring ▇▇▇▇▇▇ to be based other than at such
principal executive offices; provided, however, that such relocation shall cease to be a Good
Reason on the date that is 180 days after the occurrence of such relocation unless, prior to such
date, ▇▇▇▇▇▇ gives a Notice of Termination pursuant to Section 4.1 on account of such relocation;
“INCENTIVE EQUITY PLANS” shall mean the America West 1994 Incentive Equity Plan, the America
West 2002 Incentive Equity Plan, and the US Airways Group, Inc. 2005 Equity Incentive Plan, as
amended from time to time, or any successor and future equity-based plans.
“LTIP” shall mean the America West Airlines Performance-Based Award Plan, which became
effective as of January 1, 2003; the US Airways Group, Inc. Performance-Based Award Plan, which
became effective as of November 2, 2005; the US Airways Group, Inc. 2007 Performance-Based Award
Program, which became effective March 26, 2007; or any successor and future long-term cash
incentive programs.
Subject to the terms of Section 7.8(a) below, “MISCONDUCT” shall mean one or more of the
following:
(i) the willful and continued failure by ▇▇▇▇▇▇ to perform his duties
described in Section 2.2 (other than any such failure resulting from ▇▇▇▇▇▇’▇
incapacity due to physical or mental illness) after written notice of such failure
has been given to ▇▇▇▇▇▇ by Group and ▇▇▇▇▇▇ has had a reasonable period (but not
more than 60 days) after receipt of such notice to correct such failure;
(ii) the willful commission by ▇▇▇▇▇▇ of any act that is both dishonest and demonstrably
injurious to any Constituent Company (monetarily or otherwise) in any material respect;
(iii) the conviction of ▇▇▇▇▇▇ for a felony offense involving moral turpitude; or
(iv) a material breach by ▇▇▇▇▇▇ of any of the covenants set forth in this Agreement (other
than Section 2.2), but only if such breach shall continue unremedied for more than 15 days after
written notice thereof is given to ▇▇▇▇▇▇ by Group.
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“NOTICE OF TERMINATION” shall mean a notice terminating ▇▇▇▇▇▇’▇ employment in accordance with
Section 4.1 or 4.2.
“PAYMENT” shall have the meaning specified in Section 4.6.
“PERSON” shall mean and include an individual, a partnership, a joint venture, a corporation,
a trust and an unincorporated organization.
“RESTRICTED PERIOD” shall have the meaning specified in Section 5.2(a).
“SECURITIES ACT” shall mean the Securities Act of 1933, as amended.
“TERMINATION” or “TERMINATED” means the termination of ▇▇▇▇▇▇’▇ employment that constitutes a
“separation from service” within the meaning of the default rules of Section 409A of the Code.
“TERMINATION DATE” shall mean either the Termination date specified in a Notice of Termination
delivered in accordance with Section 4.1 or 4.2 or the Expiration Date, as applicable.
“UNDERPAYMENT” shall have the meaning specified in Section 4.6(a).
| 1.2 | INTERPRETATIONS |
(a) In this Agreement, unless a clear contrary intention appears, the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision, (ii) reference to any Article or Section means
such Article or Section hereof, (iii) the words “including” (and with correlative meaning
“include”) means including, without limiting the generality of any description preceding such term,
and (iv) where any provision of this Agreement refers to action to be taken by any party, or which
such party is prohibited from taking, such provision shall be applicable whether such action is
taken directly or indirectly by such party.
(b) The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
(c) No provision of this Agreement shall be interpreted or construed against any party solely
because that party or its legal representative drafted such provision.
ARTICLE 2
EMPLOYMENT; TERM; POSITIONS AND DUTIES
| 2.1 | EMPLOYMENT; TERM |
Each Employer hereby employs ▇▇▇▇▇▇ in the executive capacities set forth herein and ▇▇▇▇▇▇
hereby accepts employment by each Employer, in each case on the terms and conditions, and for the
consideration, set forth in this Agreement. ▇▇▇▇▇▇’▇ employment
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hereunder shall commence on the Effective Date and shall terminate on the Expiration Date,
unless earlier Terminated as provided in Article 4.
| 2.2 | POSITIONS AND DUTIES |
(a) While employed hereunder, ▇▇▇▇▇▇ shall serve as Chairman and CEO of Group and shall have
and may exercise all of the powers, functions, duties and responsibilities normally attributable to
such positions, including such powers, duties and responsibilities as are set forth with respect to
such positions in the certificate of incorporation and bylaws (as from time to time in effect) of
Group.
(b) While employed hereunder, ▇▇▇▇▇▇ shall serve as Chairman and CEO of Airways and shall have
and may exercise all of the powers, functions, duties and responsibilities normally attributable to
such position, including such powers, duties and responsibilities as are set forth with respect to
such position in the certificate of incorporation and bylaws (as from time to time in effect) of
Airways.
(c) ▇▇▇▇▇▇ shall have such additional duties and responsibilities commensurate with the
positions referred to above as from time to time may be reasonably assigned to him by the Board.
(d) While employed hereunder, ▇▇▇▇▇▇ shall report directly and exclusively to the Board and
shall observe and comply with all lawful policies, directions and instructions of the Board that
are consistent with paragraphs (a), (b) and (c) above. ▇▇▇▇▇▇ acknowledges and agrees that the
obligation to respond to inquiries and requests made by duly appointed committees of the Board is
within the scope of his responsibilities as Chairman and CEO.
(e) During the Employment Period, the president, the chief operating officer, the chief
financial officer, the chief legal officer, the chief marketing officer, the chief public affairs
officer of each of Airways and Group, respectively, and such other officers as the Board and ▇▇▇▇▇▇
shall mutually agree, shall report directly to ▇▇▇▇▇▇ or to such other executive officer as ▇▇▇▇▇▇
may designate.
(f) The Employers agree to use their best efforts to cause ▇▇▇▇▇▇ to be elected or appointed,
or re-elected or re-appointed, as Chairman of each Employer at all times during the Employment
Period.
(g) While employed hereunder, ▇▇▇▇▇▇ agrees to devote substantially all of his business time,
attention, skill and efforts to the faithful and efficient performance of his duties hereunder as
Chairman and CEO of Group and as Chairman and CEO of Airways; provided, however, that ▇▇▇▇▇▇ may
engage in the following activities so long as they do not interfere in any material respect with
the performance of ▇▇▇▇▇▇’▇ duties and responsibilities hereunder: (i) serve on corporate boards or
committees with respect to which the Board shall have given its prior approval, which approval
shall not be unreasonably withheld, (ii) serve on civic or charitable boards or committees, (iii)
engage in community affairs or charitable endeavors, (iv) manage his personal finances, investments
and other matters, and (v) deliver lectures, fulfill speaking engagements or teach on a part-time
basis at educational institutions.
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| 2.3 | PLACE OF EMPLOYMENT |
▇▇▇▇▇▇’▇ place of employment hereunder shall be at Group’s principal executive offices.
ARTICLE 3
COMPENSATION AND BENEFITS
| 3.1 | BASE SALARY |
(a) For services rendered by ▇▇▇▇▇▇ under this Agreement, Employers shall pay to ▇▇▇▇▇▇ an
annual cash base salary in the amount of $550,000 (as increased from time to time under paragraph
(b) below, the “BASE SALARY”), effective from and after the Effective Date and for the remainder of
his employment hereunder. The Base Salary shall be payable as earned during the Employment Period
at such time and in such manner consistent with the Employer’s payroll practices for other senior
executives.
(b) The Base Salary shall be reviewed at least annually at such time or times as the salaries
of other senior executives of the Employers as a group are reviewed, and may be increased, but not
decreased, by the Compensation and Human Resources Committee of the Board (or such other committee
as may be appointed by the Board with such authority) at any time or from time to time as such
committee may deem appropriate.
| 3.2 | INCENTIVE COMPENSATION AWARDS |
(a) With respect to each full or partial fiscal year occurring during the Employment Period,
beginning with the fiscal year ending December 31, 2007, ▇▇▇▇▇▇ shall be eligible to receive in
addition to the Base Salary an annual incentive compensation award (the “ANNUAL AWARD”) for
services rendered during such full or partial fiscal year, subject to the terms and conditions of
the Employers’ annual incentive compensation plan as in effect from time to time. The amount of
the Annual Award, if any, with respect to any fiscal year shall be based upon performance targets
and award levels determined, in consultation with ▇▇▇▇▇▇, by and in the sole discretion of the
Board, the Compensation and Human Resources Committee or such other committee as may be appointed
by the Board with such authority, in accordance with the Employers’ annual incentive compensation
plan as in effect from time to time; provided, however, that for each fiscal year the target award
levels with respect to ▇▇▇▇▇▇ shall be established in such a manner as to provide ▇▇▇▇▇▇ with the
opportunity to earn an Annual Award of at least 80% of his Base Salary, assuming performance at the
target level, and a maximum Annual Award opportunity of 160% of his Base Salary, assuming
performance at an extraordinary level in excess of the target level, for such fiscal year (pro
rated for any partial fiscal year). Annual Awards shall be paid in, and on or before March
15th, of the calendar year following the calendar year to which the Annual Award
relates, unless otherwise deferred in accordance with the terms of the Employers’ deferred
compensation plans.
(b) With respect to the LTIP, the parties acknowledge and agree that during the Employment
Period, ▇▇▇▇▇▇ will participate in each “Performance Cycle” and “Transition Performance Cycle,” as
such terms are defined in the LTIP, that commences under the LTIP at
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the award level applicable to the Chief Executive Officer of Group or Airways, as applicable.
Except as otherwise expressly set forth in this Agreement, the terms of ▇▇▇▇▇▇’▇ awards under the
LTIP will be governed in accordance with the terms of the LTIP, as in effect from time to time.
| 3.3 | STOCK INCENTIVE AWARDS |
▇▇▇▇▇▇ shall be granted equity-based incentive awards, including stock options, stock
appreciation rights and restricted stock units, commensurate with his status as the most senior
executive officer of the Employers pursuant to the Incentive Equity Plans, at such time or times as
equity-based incentive grants are made to other senior executives of the Employers as a group (but
excluding special grants associated with or attributable to new hires, promotions and other
individual retention decisions). ▇▇▇▇▇▇ acknowledges that the decision to make such awards to
senior executives of the Employers generally shall be made by and in the sole discretion of the
Compensation and Human Resources Committee, or such other committee as may be appointed by the
Board with such authority.
| 3.4 | OTHER INCENTIVE COMPENSATION AND BENEFITS |
In addition to the incentive and equity compensation that ▇▇▇▇▇▇ becomes entitled to receive
under Sections 3.2 and 3.3 above, ▇▇▇▇▇▇ shall be granted additional grants of equity compensation
and other annual and long-term incentive compensation, commensurate with his status as the most
senior executive officer of the Employers at such time or times as such awards are made to other
senior executives of the Employers as a group (but excluding special grants associated with or
attributable to new hires, promotions and other individual retention decisions). ▇▇▇▇▇▇
acknowledges that the decision to make such grants or awards to senior executives of the Employers
shall be made by and in the sole discretion of the Compensation and Human Resources Committee, or
such other committee as may be appointed by the Board with such authority.
| 3.5 | LIFE INSURANCE |
During the Employment Period, Employers agree to maintain, at all times and without premium
cost to ▇▇▇▇▇▇, a term life insurance policy on the life of ▇▇▇▇▇▇ in the amount of $2 million, the
proceeds of which, in the event of ▇▇▇▇▇▇’▇ death, shall be payable to one or more beneficiaries
designated by ▇▇▇▇▇▇ or, in the absence of any such designation, to his estate. Such policy shall
be issued by a solvent insurance company reasonably acceptable to ▇▇▇▇▇▇.
| 3.6 | OFFICE SPACE; STAFFING; SERVICES |
During the Employment Period, Employers shall provide ▇▇▇▇▇▇ with office space, secretarial
and other support staff and administrative services necessary to enable ▇▇▇▇▇▇ to perform his
duties and responsibilities under this Agreement and as appropriate for a senior executive of
▇▇▇▇▇▇’▇ status.
| 3.7 | BUSINESS EXPENSES |
Each Employer shall, in accordance with the rules and policies that it may establish from time
to time for senior executives, reimburse ▇▇▇▇▇▇ (without duplication) for
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business expenses reasonably incurred in the performance of ▇▇▇▇▇▇’▇ duties hereunder. It is
understood that ▇▇▇▇▇▇ is authorized to incur reasonable business expenses for promoting the
businesses and reputations of the Constituent Companies, including reasonable expenditures for
travel, lodging, meals and client and/or business associate entertainment. Requests for
reimbursement for such expenses must be accompanied by appropriate documentation. Reimbursement
shall be made as soon as practicable after a request for reimbursement is received by an Employer,
but in no event later than the last day of the calendar year next following the calendar year in
which the expense is incurred.
| 3.8 | OTHER BENEFITS |
▇▇▇▇▇▇ shall be entitled to receive all benefits and other perquisites that may be offered by
the Employers to their senior executives as a group, including, (i) participation in the various
employee benefit plans or programs provided to senior executives of Employers in general (including
life insurance and disability insurance programs), subject to meeting the eligibility requirements
with respect to each of such benefit plans or programs, (ii) tax/financial planning assistance,
(iii) on-line and interline, positive space travel privileges, (iv) participation in Employers’
severance payment policies or plans for executives in general, provided that the form and timing of
any payment of such severance shall be that as set forth herein and not in any other such policy or
plan unless such policy or plan specifically (citing this Section and Section 7.8 hereof) provides
otherwise, and (v) participation in Employers’ retiree medical insurance programs, subject to
meeting the eligibility requirements of such programs. In addition, the Employers shall reimburse
▇▇▇▇▇▇ for membership fees and dues for up to two (2) clubs that ▇▇▇▇▇▇ may choose to join, in his
sole discretion. However, nothing in this Section 3.8 shall be deemed to prohibit Employers from
making any changes in any of the plans, programs or benefits described herein, provided the change
similarly affects all senior executives of Employers.
Reimbursement of club membership fees and dues shall be made as soon as practicable after the
request (accompanied by appropriate documentation) for reimbursement is received by the Employers,
but in no event later than the last day of the calendar year next following the calendar year in
which the fees and dues are incurred. Except as provided in Article 4, the benefits described in
the preceding paragraph shall only be provided during the Employment Period, except with respect to
the benefit described in clause (v), which shall be provided following the expiration of the
Employment Period, subject to the terms of such programs and ▇▇▇▇▇▇ meeting the eligibility
requirements of such programs.
| 3.9 | ATTORNEYS’ FEES |
Group shall pay, or reimburse ▇▇▇▇▇▇ for, reasonable attorneys’ fees and associated costs
incurred by ▇▇▇▇▇▇ in connection with the negotiation and execution of this Agreement and in
connection with any amendment to this Agreement during the Employment Period. Reimbursement shall
be made as soon as practicable after a request (accompanied by appropriate documentation) for
reimbursement is received by Group, but in no event later than the last day of the calendar year
next following the calendar year in which the fees and costs are incurred.
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| 3.10 | NO DIRECTOR FEES |
In no event shall ▇▇▇▇▇▇ be entitled to receive any additional compensation for serving as a
director of any Constituent Company during the Employment Period.
ARTICLE 4
CHANGE IN CONTROL AND TERMINATION OF EMPLOYMENT
| 4.1 | TERMINATION BY ▇▇▇▇▇▇ |
▇▇▇▇▇▇ may, at any time prior to the Expiration Date, terminate his employment hereunder for
any reason by delivering a Notice of Termination to the Board. Any such Notice of Termination
shall specify a Termination Date not less than 30 or more than 60 days after the date such notice
is given; provided, however, that if the Notice of Termination purports to terminate ▇▇▇▇▇▇’▇
employment for Good Reason, it shall set forth in reasonable detail the reason for such Termination
and the facts and circumstances claimed to provide a basis for such Termination, and shall specify
a Termination Date (subject to any applicable periods during which Group may cure the circumstances
of the alleged Good Reason event) not less than 5 or more than 30 days after the date such notice
is given.
| 4.2 | TERMINATION BY GROUP |
Group may, at any time prior to the Expiration Date, terminate ▇▇▇▇▇▇’▇ employment hereunder
for any reason by delivering a Notice of Termination to ▇▇▇▇▇▇; provided, however, that in no event
shall Group be entitled to terminate ▇▇▇▇▇▇’▇ employment hereunder prior to the Expiration Date
unless (i) the Board shall duly adopt, by the affirmative vote of at least a majority of the entire
membership of the Board (other than ▇▇▇▇▇▇) at a duly convened meeting at which a quorum is
present, a resolution authorizing such Termination, and (ii) ▇▇▇▇▇▇ shall have been offered an
opportunity to address the Board at such meeting (or at a prior meeting at which his proposed
Termination is discussed) before any such resolution is finally adopted. Any such Notice of
Termination delivered under this Section 4.2 shall specify a Termination Date, which may be
immediate or may be up to 60 days after the date such notice is given. If the Notice of
Termination purports to terminate ▇▇▇▇▇▇’▇ employment for Misconduct, it shall set forth in
reasonable detail the reason for such Termination and the facts and circumstances claimed to
provide a basis for such Termination, and shall specify as the Termination Date the date such
notice is given (subject to any applicable periods during which ▇▇▇▇▇▇ may cure the circumstances
of the alleged Misconduct) or any subsequent date up to the date 30 days after the date such notice
is given.
| 4.3 | PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC. |
Promptly upon the Termination of ▇▇▇▇▇▇’▇ employment hereunder for any reason, including
▇▇▇▇▇▇’▇ death, Misconduct or Disability, Employers shall pay to ▇▇▇▇▇▇ a lump sum amount for (i)
any unpaid Base Salary earned hereunder prior to the Termination Date, (ii) all unused vacation
time accrued by ▇▇▇▇▇▇ as of the Termination Date in accordance with Employers’ vacation policies
for senior executives, (iii) all unpaid benefits earned by ▇▇▇▇▇▇ as of the Termination Date under
any and all incentive compensation plans or programs of
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Employers, (iv) all amounts owing to ▇▇▇▇▇▇ under Section 3.7 and (v) any additional amounts
or benefits which may be required to be paid in a lump sum by applicable law or under the terms of
the applicable plans. Amounts described in clauses (i), (ii) and (iv) above shall be paid in a
lump sum within 30 days following ▇▇▇▇▇▇’▇ Termination Date. Amounts described in clauses (iii)
and (v) above shall be paid in accordance with Section 4.4(g) hereof.
| 4.4 | OTHER TERMINATION BENEFITS AND PRIVILEGES |
The following provisions shall apply to (i) any Termination by ▇▇▇▇▇▇ of his employment
hereunder for any reason within 24 months following the date of a Change in Control, (ii) any
Termination by ▇▇▇▇▇▇ of his employment hereunder for Good Reason, (iii) any Termination by Group
of ▇▇▇▇▇▇’▇ employment hereunder for any reason other than ▇▇▇▇▇▇’▇ Misconduct, (iv) any
Termination of ▇▇▇▇▇▇’▇ employment hereunder upon the Expiration Date following the delivery to
▇▇▇▇▇▇ by an Employer of written notice that the Expiration Date will not be extended, (v) any
Termination of ▇▇▇▇▇▇’▇ employment hereunder on account of his Disability, or (vi) any Termination
of ▇▇▇▇▇▇’▇ employment hereunder on account of his death:
(a) SEVERANCE PAYMENT. In the event the Termination is described in clause (i), (ii) or (iii)
above, Employers shall pay to Parker a severance payment (in cash or other immediately available
funds) in an amount equal to two times the sum of (A) ▇▇▇▇▇▇’▇ current Base Salary plus (B) the
greater of (I) the average Annual Award paid or payable to ▇▇▇▇▇▇ with respect to the three
calendar years ending immediately prior to the year in which the Termination Date occurs and (II)
the target level Annual Award for the year in which the Termination Date occurs. In the event the
Termination is described in clause (iv) or (v) above, Employers promptly shall pay to Parker a
severance payment (in cash or other immediately available funds) in an amount equal to the sum of
(A) ▇▇▇▇▇▇’▇ current Base Salary plus (B) the greater of (I) the average Annual Award paid or
payable to ▇▇▇▇▇▇ with respect to the three calendar years ending immediately prior to the year in
which the Termination Date occurs and (II) the target level Annual Award for the year in which the
Termination Date occurs. In the event the Termination is described in clause (vi) above, no
severance payment will be payable. All severance payments shall be paid as provided in paragraph
(g) below.
(b) STOCK OPTIONS, STOCK APPRECIATION RIGHTS ETC. In the event the Termination is described
in clause (i), (ii), (iii), (v) or (vi) above, all outstanding stock options, stock appreciation
rights, restricted stock units and other awards, including, without limitation, any long term
incentive awards, held by ▇▇▇▇▇▇ pursuant to the provisions of the Incentive Equity Plans and any
other plan in which ▇▇▇▇▇▇ participates pursuant to Section 3.4 shall become immediately vested and
exercisable as of the Termination Date (except, in connection with awards made after the Effective
Date, as otherwise expressly accepted or agreed by ▇▇▇▇▇▇ with respect to any specific award after
consultation between ▇▇▇▇▇▇ and Employers regarding any such terms, which consultation shall be
acknowledged in writing on the signature page of the applicable award agreement). Where
applicable, all such awards shall remain exercisable for a period of 36 months from the Termination
Date, or such longer period as may apply under the terms of any specific grant, plan or any other
agreement with ▇▇▇▇▇▇, but in no case shall the exercise period extend later than the earlier of
the original expiration date of the award or ten years from the original date of grant. In the
event the Termination is described in clause (iv) above, is due to ▇▇▇▇▇▇’▇ Misconduct, or the
Termination is described in Section 4.1
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other than a Termination described in clause (i) or (ii) above, ▇▇▇▇▇▇ shall retain all vested
stock options, stock appreciation rights, restricted stock units and other awards held by him as of
the Termination Date pursuant to the provisions of the Incentive Equity Plans and any other plan to
which an award is subject, in accordance with the terms of each specific grant, but without any
accelerated vesting, extension of the period of exercisability or other modification.
(c) LONG TERM INCENTIVE PLAN. In the event the Termination is described in clause (i), (ii)
or (iii) above, in settlement of the Employers’ obligations under the LTIP, the Employers shall pay
▇▇▇▇▇▇ a cash amount equal to two times the greater of (i) 125% of his Base Salary and (ii) the
amount that would have been paid to ▇▇▇▇▇▇ had the Total Stockholder Return (as defined in the
LTIP) for the Performance Cycle (as defined in the LTIP) ending on the December 31 of the year in
which the Termination occurs (or the next December 31, if no such Performance Cycle ends in such
year) been measured as of the Termination Date. In the event the Termination is described in
clause (iv), (v) or (vi), then such Termination shall be considered Termination of an LTIP
participant’s employment with the Employers on account of retirement, total disability or death
(regardless of ▇▇▇▇▇▇’▇ age at the time), and ▇▇▇▇▇▇’▇ rights under the LTIP will be governed by
the terms of the plan accordingly. In the event the Termination is described in clause (i), (ii),
(iii), (iv) or (v) above, the payment shall be paid as provided in paragraph (g) below. In the
event the Termination is described in clause (vi), the payment shall be paid as provided in the
LTIP.
(d) MEDICAL INSURANCE. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4, during the 24-month period following the Termination Date, each
Employer shall make available to ▇▇▇▇▇▇ and ▇▇▇▇▇▇’▇ eligible dependents, at ▇▇▇▇▇▇’▇ cost (in an
amount equal to the COBRA premium cost therefor), all benefits available to ▇▇▇▇▇▇ and ▇▇▇▇▇▇’▇
eligible dependents under all medical plans and programs of such Employer (which shall be
concurrent with any health care continuation benefits to which ▇▇▇▇▇▇ or his eligible dependents
are entitled to under COBRA). The Employers shall pay to ▇▇▇▇▇▇ a lump sum cash amount equivalent
to twenty-four (24) times the difference between (i) the then monthly cost of COBRA continuation
coverage premiums for ▇▇▇▇▇▇ and his eligible dependents and (ii) the then monthly contribution for
such coverage required of regular active employees, plus an amount such that ▇▇▇▇▇▇ shall have no
after-tax cost for such payment or the gross-up thereof.
Notwithstanding the foregoing, if for any reason continued participation by ▇▇▇▇▇▇ (or his
eligible dependents) in any such plan or program after the Termination Date is impermissible under
applicable law, or in the event an Employer shall terminate any such plan or program prior to the
end of such 24-month period of continued coverage and does not establish a substantially comparable
plan or program which ▇▇▇▇▇▇ (or his eligible dependents) are eligible to participate in, such
Employer shall obtain for ▇▇▇▇▇▇ (or his eligible dependents) substantially comparable coverage
under individual policies.
(e) LIFE INSURANCE. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4 (other than a Termination on account of ▇▇▇▇▇▇’▇ death), during the
24-month period following the Termination Date, each Employer, at its cost, shall continue to
provide ▇▇▇▇▇▇ all life insurance coverages (and in the same amounts) provided
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to him by an Employer immediately prior to the date on which the relevant Notice of
Termination is given in accordance with this Article 4.
(f) TRAVEL PRIVILEGES. In the event the Termination is described in any clause of the first
paragraph of this Section 4.4, each Employer shall provide ▇▇▇▇▇▇ (and his wife and dependents)
on-line and interline, positive space travel privileges for their lifetimes in accordance with the
terms of its non-revenue travel policy for senior executives as in effect on the Effective Date;
provided, however, that the travel privileges to be provided to ▇▇▇▇▇▇ (and his wife and
dependents) by each Employer under this paragraph (e) shall be at least as favorable to ▇▇▇▇▇▇ (and
his wife and dependents) as the travel privileges generally provided to the senior executives of
such Employer from time to time. These travel privileges shall commence on the first day of the
seventh month following the Termination if ▇▇▇▇▇▇ is a “specified employee” within the meaning of
Section 409A of the Code on the date of his Termination, or upon ▇▇▇▇▇▇’▇ death, if earlier. In
addition, each Employer shall reimburse ▇▇▇▇▇▇ (or his legal representative, if applicable) for the
full amount of any payments by ▇▇▇▇▇▇ for travel on the Employer during the period from the
Termination until the earlier of the first day of the seventh month following the Termination or
the date of his death. ▇▇▇▇▇▇ (or his legal representative, if applicable) shall submit a request
for reimbursement on the first day of the eighth month following the Termination or, in the case of
▇▇▇▇▇▇’▇ death prior to the first day of the seventh month following his Termination, on the first
day of the month following his date of death. Reimbursement shall be made 30 days after ▇▇▇▇▇▇
submits the request for reimbursement.
(g) TIMING OF PAYMENTS. The parties anticipate that ▇▇▇▇▇▇ will be a “specified employee” as
defined in Section 409A of the Code on his Termination Date. The determination of whether ▇▇▇▇▇▇
is a specified employee shall be made in accordance with the Employers’ established methodology for
determining specified employees. In the event that ▇▇▇▇▇▇ is a specified employee at his
Termination and the Termination is described in clause (i), (ii), (iii), (iv), or (v) above, any
amount due under paragraphs (a), (c) or (d) of this Section 4.4 shall be paid in a lump sum payment
on the first business day that is more than six months after the Termination, or if earlier, on the
date that is thirty days after ▇▇▇▇▇▇’▇ death. In the event that ▇▇▇▇▇▇ is not a specified
employee at the Termination and the Termination is described in clause (i), (ii), (iii), (iv), or
(v) above, any amount due under paragraphs (a), (c) or (d) above shall be paid in a lump sum
payment fifty-three (53) days after the Termination. In addition to the foregoing, to the extent
required by Section 409A(a)(2)(B) of the Code, the payment of any compensation to ▇▇▇▇▇▇ under this
Agreement shall be suspended for a period of six months commencing at such time that ▇▇▇▇▇▇, prior
to the occurrence of a Disability termination as provided in Section 4.4 hereof, shall be deemed to
have had a “separation from service” within the meaning of Section 409A of the Code because either
(A) a sick leaves ceases to be a bona fide sick leave of absence or (B) the permitted time period
for a sick leave of absence expires (an “SFS DISABILITY”) without regard to whether such SFS
Disability actually results in a Disability termination. In the event the Termination is described
in clause (vi) above, any amount due under paragraphs (c) or (d) above shall be paid in a lump sum
payment fifty-three (53) days after the Termination.
If payment of an amount is delayed for six months as a result of this Section 4.4(g), such
delayed amount (the “CATCH-UP AMOUNT”) shall be increased with interest from the date on which such
amount would otherwise have been paid to ▇▇▇▇▇▇ but for
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this Section 4.4(g) to the day prior to the date the Catch-up Amount is paid. The rate of
interest shall be the short term federal rate applicable under Section 7872(f)(2)(A) of the Code
for the month in which occurs ▇▇▇▇▇▇’▇ Termination Date. Such interest shall be paid at the same
time that the Catch-up Amount is paid. If ▇▇▇▇▇▇ dies on or after the his Termination Date and
prior to the payment of the Catch-up Amount, any amount delayed pursuant to this Section 4.4(g)
shall be paid to ▇▇▇▇▇▇’▇ estate or beneficiary, as the case may be, together with interest, within
30 days following the date of ▇▇▇▇▇▇’▇ death. Notwithstanding the foregoing, neither the Employers
nor any of their employees or representatives shall have any liability to ▇▇▇▇▇▇ with respect to
the application of this Section 4.4(g).
With regard to any provision herein that provides for reimbursement of expenses or in-kind
benefits, except as permitted by Section 409A of the Code, (i) the right to reimbursement or
in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount
of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall
not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other taxable year, provided that the foregoing clause (ii) shall not be violated with
regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely
because such expenses are subject to a limit related to the period the arrangement is in effect.
| 4.5 | RESIGNATION AS A DIRECTOR |
If ▇▇▇▇▇▇’▇ employment under this Agreement is Terminated for any reason, ▇▇▇▇▇▇ agrees, if
requested by the Board, to resign as a director of all Constituent Companies of which he is a
director, such resignation to be effective immediately or at such later time as the Board shall
request.
| 4.6 | CERTAIN TAX MATTERS |
Anything in this Agreement to the contrary notwithstanding and except as set forth below, in
the event it shall be determined that any payment or distribution by an Employer to or for the
benefit of ▇▇▇▇▇▇ (whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, but determined without regard to any additional payments required
under this Section 4.6) (a “PAYMENT”) would be subject to the excise tax imposed by Section 4999 of
the Code, or any interest or penalties are incurred by ▇▇▇▇▇▇ with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter collectively referred to
as the “EXCISE TAX”), then ▇▇▇▇▇▇ shall be entitled to receive an additional payment (a “GROSS-UP
PAYMENT”) in an amount such that after payment by ▇▇▇▇▇▇ of all taxes (including any interest or
penalties imposed with respect to such taxes), including any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, ▇▇▇▇▇▇
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(a) CALCULATION. Subject to the provisions of Section 4.6(b) below, all determinations
required to be made under this Section 4.6, including whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at
such determination, shall be made by the independent auditors most
14
recently engaged by Group to conduct an independent audit of Group’s financial statements or
such other certified public accounting firm reasonably acceptable to ▇▇▇▇▇▇ as may be designated by
Group (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to ▇▇▇▇▇▇
and Group within 15 business days of the receipt of notice from ▇▇▇▇▇▇ that there has been a
Payment, or such earlier time as is requested by Group. All fees and expenses of the Accounting
Firm shall be borne solely by Group. Any Gross-Up Payment, as determined pursuant to this Section
4.6, shall be paid by Group to or for the benefit of ▇▇▇▇▇▇ within 5 days of the later of (i) the
due date for the payment of any Excise Tax and (ii) the receipt of the Accounting Firm’s
determination, but no later than December 31 of the year following the year in which ▇▇▇▇▇▇ pays
the Excise Tax. Any determination by the Accounting Firm shall be binding upon ▇▇▇▇▇▇ and Group
unless substantial authority under the Code exists to the contrary or a ruling is obtained from the
Internal Revenue Service supporting a contrary view. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which shall not have been made by Group
should have been made (“UNDERPAYMENT”), consistent with the calculations required to be made
hereunder. In the event that Group exhausts its remedies pursuant to Section 4.6(b) and ▇▇▇▇▇▇ or
Group thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by Group to ▇▇▇▇▇▇ or for ▇▇▇▇▇▇’▇ benefit within the above timeframe. The previous
sentence shall apply mutatis mutandis to any overpayment of a Gross-Up Payment.
(b) COOPERATION. ▇▇▇▇▇▇ shall notify Group in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by Group of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than 30 business days after ▇▇▇▇▇▇
is informed in writing of such claim, and shall apprise Group of the nature of such claim and the
date on which such claim is required to be paid. ▇▇▇▇▇▇ shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice to Group (or such
shorter period ending on the date that any payment of taxes with respect to such claim is due). If
Group notifies ▇▇▇▇▇▇ in writing prior to the expiration of such period that it desires to contest
such claim, ▇▇▇▇▇▇ will:
(i) give Group any information reasonably requested by Group relating to such claim,
(ii) take such action in connection with contesting such claim as Group shall reasonably
request in writing from time to time, including accepting legal representation with respect to such
claim by an attorney reasonably selected by Group,
(iii) cooperate with Group in good faith in order effectively to contest such claim, and
(iv) permit Group to participate in any proceeding relating to such claim.
Group shall bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold ▇▇▇▇▇▇
15
harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 4.6(b), Group shall control all
proceedings taken in connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct ▇▇▇▇▇▇ to pay the tax claimed and
▇▇▇ for a refund or contest the claim in any permissible manner, and ▇▇▇▇▇▇ agrees to prosecute
such contest to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as Group shall determine; provided, however, that
if Group directs ▇▇▇▇▇▇ to pay such claim and ▇▇▇ for a refund, Group shall advance the amount of
such payment to ▇▇▇▇▇▇, on an interest-free basis, and shall indemnify and hold ▇▇▇▇▇▇ harmless, on
an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed income with respect to
such advance; and provided further, however, that any extension of the statute of limitations
relating to payment of taxes for ▇▇▇▇▇▇’▇ taxable year with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Furthermore, Group’s control of
the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and ▇▇▇▇▇▇ shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority. Any payment to ▇▇▇▇▇▇
required under this paragraph (b) shall be made no later than December 31 of the year following the
year in which ▇▇▇▇▇▇ pays any Excise Tax, income tax, penalty or interest; provided, however, that
if Group requires ▇▇▇▇▇▇ to contest the claim without first paying the Excise Tax, any Gross-Up
Payment or reimbursement by Group of expenses incurred by ▇▇▇▇▇▇ in connection with a litigation
proceeding relating to the Excise Tax, as provided for in this paragraph (b), shall be paid no
later than the last day of the calendar year following the calendar year in which ▇▇▇▇▇▇ remitted
the Excise Tax or, if no Excise Tax is paid, the end of the calendar year following the calendar
year in which there is a final and nonappealable settlement or other resolution of the litigation.
(c) ADJUSTMENTS. If, after the receipt by ▇▇▇▇▇▇ of an amount advanced by Group pursuant to
this Section 4.6, ▇▇▇▇▇▇ becomes entitled to receive any refund with respect to such claim, ▇▇▇▇▇▇
shall (subject to Group’s complying with the requirements of Section 4.6(b)) promptly pay to Group
the amount of such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by ▇▇▇▇▇▇ of an amount advanced by Group pursuant to
this Section 4.6, a determination is made that ▇▇▇▇▇▇ shall not be entitled to any refund with
respect to such claim and Group does not notify ▇▇▇▇▇▇ in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such advance shall
offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.
4.7 RELEASE PRIOR TO PAYMENT OF BENEFITS. In order to be eligible to receive benefits under
this Agreement (other than amounts due under Sections 4.3 or 4.6 hereof), ▇▇▇▇▇▇ must execute a
general waiver and release in substantially the form attached hereto as Exhibit A or Exhibit B, as
appropriate, within forty-five (45) days of such Termination and not revoke such release prior to
the expiration of the revocation period provided for in such release. Subject to the foregoing,
the Employer shall determine the form of the required release, which
16
may be incorporated into a termination agreement or other agreement with ▇▇▇▇▇▇, and may
modify the form of the required release to comply with applicable federal or state law.
ARTICLE 5
CONFIDENTIAL INFORMATION, NON-INTERFERENCE
| 5.1 | CONFIDENTIAL INFORMATION |
(a) ▇▇▇▇▇▇ recognizes that the services to be performed by him hereunder are special, unique
and extraordinary and that, by reason of his employment with Employers and the positions described
in paragraphs (a) and (b) of Section 2.2, he may acquire Confidential Information (defined below)
concerning one or more of the Constituent Companies, the use or disclosure of which would cause the
Constituent Companies substantial loss and damages which could not be readily calculated and for
which no remedy at law would be adequate. Accordingly, ▇▇▇▇▇▇ agrees that he will not (directly or
indirectly) at any time, whether during or after his employment hereunder, disclose any such
Confidential Information to any Person except (i) in the performance of his obligations to the
Constituent Companies hereunder, (ii) as required by applicable law, (iii) in order to enforce his
rights under this Agreement, (iv) in connection with any litigation (pending or threatened) that is
the subject of Section 6 hereof or (v) with the prior written consent of the Board. As used
herein, “CONFIDENTIAL INFORMATION” includes information with respect to the services, strategies,
facilities and methods, research and development, trade secrets and other intellectual property,
pricing and revenue management systems, patents and patent applications, procedures, manuals,
confidential reports, financial information, business plans, prospects or opportunities of any
Constituent Company; provided, however, that such term shall not include any information that (x)
is or becomes generally known or available other than as a result of a disclosure by ▇▇▇▇▇▇ or (y)
is or becomes known or available to ▇▇▇▇▇▇ on a nonconfidential basis from a source (other than
Employers) which, to ▇▇▇▇▇▇’▇ knowledge, is not prohibited from disclosing such information to
▇▇▇▇▇▇ by a legal, contractual, fiduciary or other obligation to any Constituent Company.
(b) ▇▇▇▇▇▇ confirms that all Confidential Information is the exclusive property of the
relevant Constituent Company. All business records, papers and documents kept or made by ▇▇▇▇▇▇
(whether electronically or otherwise) while employed by any Constituent Company relating to the
business of any Constituent Company shall be and remain the property of such Constituent Company at
all times. Upon the request of Group at any time, ▇▇▇▇▇▇ shall promptly deliver to Group, and
shall retain no copies of, any electronic media or written materials, records and documents made by
▇▇▇▇▇▇ or coming into his possession while employed by any Constituent Company concerning the
business or affairs of any Constituent Company other than personal materials, records and documents
(including notes and correspondence) of ▇▇▇▇▇▇ not containing information relating to such business
or affairs. Notwithstanding the foregoing, ▇▇▇▇▇▇ shall be permitted to retain copies of, or have
access to, all such materials, records and documents as may be necessary in order to enforce his
rights under this Agreement or in connection with any litigation (pending or threatened) that is
the subject of Section 6 hereof.
17
| 5.2 | NON-INTERFERENCE |
(a) During the period beginning on the Effective Date and continuing for six months following
the Termination Date (the “RESTRICTED PERIOD”), ▇▇▇▇▇▇ shall not, whether for his own account or
for the account of any other Person (excluding Group), intentionally solicit, endeavor to entice or
induce any employee of any Constituent Company to terminate his employment with such Constituent
Company or accept employment with anyone else; provided, however, that this Section 5.2 shall not
apply to ▇▇▇▇▇▇’▇ personal secretary.
(b) If any provision of this Section 5.2 relating to the Restricted Period and/or the areas of
restriction shall be declared by an arbitrator pursuant to Article 6 or a court of competent
jurisdiction to exceed the maximum time period or areas such arbitrator or court deems reasonable
and enforceable, the Restricted Period and/or areas of restriction deemed reasonable and
enforceable by such arbitrator or court shall become and thereafter be the maximum time period
and/or areas.
| 5.3 | INJUNCTIVE RELIEF |
▇▇▇▇▇▇ acknowledges that a breach of any of the covenants contained in this Article 5 may
result in material irreparable injury to the Constituent Companies for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries precisely and
that, in the event of such a breach and the Constituent Companies (or any of them) shall be
entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction
restraining ▇▇▇▇▇▇ from engaging in activities prohibited by this Article 5 or such other relief as
may required to specifically enforce any of the covenants contained in this Article 5. ▇▇▇▇▇▇
agrees to and hereby does submit to in personam jurisdiction before each and every such court for
that purpose.
ARTICLE 6
DISPUTE RESOLUTION
| 6.1 | GENERAL |
Any claim, dispute, or controversy of whatever nature arising out of or relating to this
Agreement (including any other agreement(s) contemplated hereunder), including any action or claim
based on tort, contract, or statute (including any claims of breach or violation of statutory or
common law protections from discrimination, harassment and hostile working environment), or
concerning the interpretation, effect, termination, validity, performance and/or breach of this
Agreement (a “DISPUTE”), shall to the fullest extent permitted by law be resolved by final and
binding arbitration before a panel of three arbitrators (“ARBITRATORS”) selected from and
administered by JAMS (the “ADMINISTRATOR”) in accordance with its then existing Comprehensive
Arbitration Rules & Procedures, except with respect to the selection of such Arbitrators which
shall be made in accordance with Section 6.3 below. The arbitration hearing shall be held in
Maricopa County, Arizona.
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| 6.2 | PRELIMINARY REQUIREMENTS |
Before commencing the above-referenced JAMS arbitration, the parties shall first make a good
faith attempt to resolve a Dispute through their management. In the event such good faith
negotiation fails to settle a Dispute within 30 days from notice of such Dispute, the parties shall
endeavor to resolve the Dispute by mediation through JAMS. If the Dispute has not been resolved
pursuant to the JAMS mediation within 30 days of the request for mediation, the Dispute shall be
submitted to the JAMS arbitration process described herein.
| 6.3 | CHOICE OF ARBITRATORS |
The choice of Arbitrators shall be made as follows. ▇▇▇▇▇▇ shall choose one independent
Arbitrator and Group shall choose one independent Arbitrator. The two Arbitrators so chosen will
choose the third Arbitrator, who must be independent with excellent academic and professional
credentials, with experience in the subject matter of the Dispute and who has had both training and
at least five years experience as an arbitrator.
| 6.4 | ARBITRATION; RULES |
(a) Any issue as to whether or the extent to which the Dispute is subject to the arbitration,
including, but not limited to, issues relating to the validity or enforceability of this Article 6,
the applicability of any statute of limitations or other defense relating to the timeliness of the
assertion of any claim or any other matter relating to the arbitrability of such claim, shall be
decided by the Arbitrators.
(b) The Arbitrators shall be authorized to award compensatory damages, but shall not be
authorized (i) to award non-economic damages, such as for emotional distress, pain and suffering,
or loss of consortium, (ii) to award punitive damages, or (iii) to reform, modify or materially
change this Agreement or any other agreements contemplated hereunder; provided, however, that the
damage limitations described in parts (i) and (ii) of this sentence will not apply if such damages
are statutorily imposed. The Arbitrators also shall be authorized to grant any temporary,
preliminary or permanent equitable remedy or relief he or she deems just and equitable and within
the scope of this Agreement, including, without limitation, an injunction or order for specific
performance.
(c) Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the
arbitration; however, the Arbitrators shall be authorized to determine whether a party is the
prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable
attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses,
photocopy charges, travel expenses, etc.). Group shall pay the costs of the arbitration, including
the cost of the Arbitrators themselves.
(d) The Arbitrators shall render their decision in writing and, unless both parties agree
otherwise, shall include an explanation of the reasons for the award, which explanation shall be
limited to the extent necessary to support the award and need not attempt to cover all issues
raised by the parties.
19
(e) The arbitration shall be governed by the substantive laws of the State of Arizona
applicable to contracts made and to be performed therein, without regard to conflicts of law rules.
The Arbitrators shall have no power or authority to order or grant any remedy or relief that a
court could not order or grant under applicable law.
| 6.5 | ENFORCEMENT |
Judgment upon the award rendered by the Arbitrators may be entered in any court having
jurisdiction thereof. These arbitration provisions may be enforced by any court of competent
jurisdiction, and the party seeking enforcement shall be entitled to all costs and expenses,
including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.
| 6.6 | CERTAIN COURT ACTIONS PERMITTED |
Notwithstanding the foregoing, this Article 6 will not preclude either party from pursuing a
court action for the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate (including as contemplated by
Section 5.4), provided that any other relief will be pursued through an arbitration proceeding
pursuant to this Article 6. For purposes of this Section 6.6, each party hereto irrevocably and
unconditionally:
(a) agrees that any suit, action or other legal proceeding arising out of this Agreement
(other than as contemplated by Section 5.4) shall only be brought in the United States District
Court for the District of the State of Arizona or, if such court does not have jurisdiction or will
not accept jurisdiction, then only in the Superior Court of the State of Arizona,
(b) consents to the jurisdiction of any such court in any such suit, action or proceeding, and
(c) waives any objection which such party may have to the laying of venue of any such suit,
action or proceeding in any such court.
| 6.7 | WAIVER OF CERTAIN RIGHTS AND PROTECTIONS |
BY AGREEING TO THIS BINDING ARTICLE 6, THE PARTIES UNDERSTAND THAT THEY ARE WAIVING CERTAIN
RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A DISPUTE WERE DETERMINED BY LITIGATION
IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES
PRECLUDED BY THIS ARTICLE 6, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF DISCOVERY AND APPEAL, AND
A RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE.
20
ARTICLE 7
MISCELLANEOUS
| 7.1 | NO MITIGATION OR SET OFF |
The provisions of this Agreement are not intended to, nor shall they be construed to, require
that ▇▇▇▇▇▇ mitigate the amount of any payment provided for in this Agreement by seeking or
accepting other employment, nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by ▇▇▇▇▇▇ as the result of employment by another employer or
otherwise. Without limitation of the foregoing, Employers’ obligations to make the payments to
▇▇▇▇▇▇ required under this Agreement and otherwise to perform their obligations hereunder shall not
be affected by any set off, counterclaim, recoupment, defense or other claim, right or action that
either an may have against ▇▇▇▇▇▇.
| 7.2 | ASSIGNABILITY |
The obligations of ▇▇▇▇▇▇ hereunder are personal and may not be assigned or delegated by
▇▇▇▇▇▇ or transferred in any manner whatsoever, nor are such obligations subject to involuntary
alienation, assignment or transfer. Each Employer shall have the right to assign this Agreement
and to delegate all its rights, duties and obligations hereunder as provided in Section 7.5.
| 7.3 | NOTICES |
All notices and all other communications provided for in the Agreement shall be in writing and
shall be sent, delivered or mailed, addressed as follows: (i) if to Employers (or any of them), at
Group principal office address or such other address as Group may have designated by written notice
to ▇▇▇▇▇▇ for purposes hereof, directed to the attention of the Board with a copy to the Secretary
of Group and (ii) if to ▇▇▇▇▇▇, at his residence address on the records of Group or to such other
address as he may have designated to Group in writing for purposes hereof. Each such notice or
other communication shall be deemed to have been duly given when delivered in person, by facsimile
or by United States registered mail, return receipt requested, postage prepaid, except that any
notice of change of address shall be effective only upon receipt.
| 7.4 | SEVERABILITY |
The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall remain in full
force and effect.
| 7.5 | SUCCESSORS; BINDING AGREEMENT |
(a) Each Employer will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of such
Employer, by agreement in form and substance reasonably acceptable to ▇▇▇▇▇▇, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that such Employer
would be required to perform it if no such succession had taken place.
21
Failure of such Employer to obtain such agreement prior to the effectiveness of any such
succession shall be a material breach of this Agreement. As used herein, (i) the term “Group”
shall include any successor to its business and/or assets as aforesaid which executes and delivers
the Agreement provided for in this Section 7.5 or which otherwise becomes bound by all terms and
provisions of this Agreement by operation of law and (ii) the term “Airways” shall include any
successor to its business and/or assets as aforesaid which executes and delivers the Agreement
provided for in this Section 7.5 or which otherwise becomes bound by all terms and provisions of
this Agreement by operation of law.
(b) This Agreement and all rights of ▇▇▇▇▇▇ hereunder shall inure to the benefit of and be
enforceable by ▇▇▇▇▇▇’▇ personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If ▇▇▇▇▇▇ should die while any amounts would be
payable to him hereunder if he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to ▇▇▇▇▇▇’▇ devisee, legatee,
or other designee or, if there be no such designee, to ▇▇▇▇▇▇’▇ estate.
(c) This Agreement and all rights of the Constituent Companies hereunder shall inure to the
benefit of and be enforceable by the Constituent Companies and their respective successors and
assigns.
| 7.6 | TAX WITHHOLDINGS |
Each Employer shall withhold from all payments hereunder all applicable taxes (federal, state
or other) that it is required to withhold therefrom unless ▇▇▇▇▇▇ has otherwise paid to such
Employer the amount of such taxes.
| 7.7 | AMENDMENTS AND WAIVERS |
No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by ▇▇▇▇▇▇ and the Employer or
Employers that shall be bound by such modification, waiver or discharge. No waiver by any party
hereto at any time of any breach by any other party hereto of, or in compliance with, any condition
or provision of this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
| 7.8 | NO DUPLICATE SEVERANCE; ENTIRE AGREEMENT |
(a) Notwithstanding any term to the contrary in this Agreement, in the event ▇▇▇▇▇▇ shall
become entitled to receive a severance payment pursuant to Section 4.4(a) above under circumstances
which also entitle him to receive another severance payment under any severance policy or plan of
an Employer, then the other severance payment due to ▇▇▇▇▇▇ pursuant to such policy or plan
automatically shall be reduced by the amount of the severance payment paid or payable under Section
4.4(a) (but shall not be reduced by the amount of any Gross-Up Payment paid or payable under
Section 4.6).
(b) The parties acknowledge, confirm and agree that, except as expressly provided herein, this
Agreement represents the entire agreement of the parties, and no agreement
22
or representations, oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by any party which are not set forth expressly in this Agreement.
| 7.9 | GOVERNING LAW |
The validity, interpretation, construction and performance of this agreement shall be governed
by the laws of the state of New York without regard to its conflict of laws provision.
| 7.10 | COUNTERPARTS |
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 will constitute one and the same instrument.
| 7.11 | INDEMNIFICATION; LIABILITY INSURANCE |
▇▇▇▇▇▇ shall be indemnified by the Employers to the full extent permitted by law and in
accordance with the Employers’ policies applicable to other senior executives and directors. In
the event Group maintains directors and officers liability insurance, ▇▇▇▇▇▇ will be insured under
such policies during the Employment Period at a level commensurate with those applicable to other
senior executives and directors of Group. Without ▇▇▇▇▇▇’▇ prior written consent, no Employer
shall amend, modify or repeal any provision of its certificate of incorporation or bylaws if such
amendment, modification or repeal would materially adversely affect ▇▇▇▇▇▇’▇ rights to
indemnification by such Employer.
| 7.12 | REMEDIES CUMULATIVE |
No right, power or remedy granted under this Agreement is intended to be exclusive, but each
shall be cumulative and in addition to any other rights, powers or remedies referred to in this
Agreement or otherwise available at law or in equity.
| 7.13 | JOINT AND SEVERAL LIABILITY |
The obligations of Employers hereunder shall be joint and several.
23
IN WITNESS WHEREOF, the parties have executed this Agreement on November 28, 2007 but
effective for all purposes (except as herein otherwise expressly provided) as of the date first
above written.
| US AIRWAYS GROUP, INC. |
|||||
| By: | |||||
| W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | Director and Chairman of the Compensation and Human Resources Committee | ||||
| US AIRWAYS, INC. |
|||||
| By: | |||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||
| Title: | Director and Chairman of the Compensation and Human Resources Committee | ||||
Exhibit A: Release (Individual Termination — Age 40 or Older)
Exhibit B: Release (Group Termination —Age 40 or Older)
Exhibit B: Release (Group Termination —Age 40 or Older)
24
Exhibit A
RELEASE
(Individual Termination — Age 40 or Older)
(Individual Termination — Age 40 or Older)
In consideration of the benefits I will receive under this Agreement dated __________,
20___, to which I would not otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Employer, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Employer), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Employer or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Employer, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under ADEA and that the consideration given under the Agreement for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I was already entitled. I
further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A)
my waiver and release do not apply to any rights or claims that may arise on or after the date I
execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; and (E) this Release shall not be effective until the date upon
which the revocation period has expired, which shall be the eighth (8th) day after I
execute this Release.
| [Executive] |
||||
| Date: | ||||
25
Exhibit B
RELEASE
(Group Termination — Age 40 or Older)
(Group Termination — Age 40 or Older)
In consideration of the benefits I will receive under this Agreement dated _________,
20___, to which I would not otherwise be entitled, I hereby agree as follow:
Except as otherwise set forth in this Release, I hereby release, acquit and forever discharge
the Employer, its parents, subsidiaries and affiliates, and their officers, directors, agents,
servants, employees, shareholders, successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for
indemnification I may have as a result of any third party action against me based on my employment
with the Employers), arising out of or in any way related to agreements, events, acts or conduct at
any time prior to and including the date I execute this Release, including, but not limited to:
all such claims and demands directly or indirectly arising out of or in any way connected with my
employment with the Employer or the termination of that employment, including but not limited to,
claims of intentional and negligent infliction of emotional distress, any and all tort claims for
personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options,
or any other equity or ownership interests in the Employer, vacation pay, fringe benefits, expense
reimbursements, severance pay, or any other form of equity or compensation; claims pursuant to any
federal, state or local law or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as
amended (“ADEA”); the federal Employee Retirement Income Security Act of 1974, as amended; the
federal Americans with Disabilities Act of 1990; the Arizona Civil Rights Act, as amended; tort
law; contract law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and
breach of the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have
under the ADEA and that the consideration given under the Agreement for the waiver and release in
the preceding paragraph hereof is in addition to anything of value to which I was already entitled.
I further acknowledge that I have been advised by this writing, as required by the ADEA, that:
(A) my waiver and release do not apply to any rights or claims that may arise on or after the date
I execute this Release; (B) I have the right to consult with an attorney prior to executing this
Release; (C) I have forty-five (45) days to consider this Release (although I may choose to
voluntarily execute this Release earlier); (D) I have seven (7) days following my execution of this
Release to revoke the Release; (E) this Release shall not be effective until the date upon which
the revocation period has expired, which shall be the eighth day (8th) after I execute this
Release; and (F) I have received with this Release an attachment that contains certain demographic
information required by ADEA.
| [Executive] |
||||
| Date: | ||||
26
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE 1 DEFINITIONS AND INTERPRETATIONS | 1 | |||||||
| 1.1 | DEFINITIONS | 1 | ||||||
| 1.2 | INTERPRETATIONS | 5 | ||||||
| ARTICLE 2 EMPLOYMENT; TERM; POSITIONS AND DUTIES | 5 | |||||||
| 2.1 | EMPLOYMENT; TERM | 5 | ||||||
| 2.2 | POSITIONS AND DUTIES | 6 | ||||||
| 2.3 | PLACE OF EMPLOYMENT | 7 | ||||||
| ARTICLE 3 COMPENSATION AND BENEFITS | 7 | |||||||
| 3.1 | BASE SALARY | 7 | ||||||
| 3.2 | INCENTIVE COMPENSATION AWARDS | 7 | ||||||
| 3.3 | STOCK INCENTIVE AWARDS | 8 | ||||||
| 3.4 | OTHER INCENTIVE COMPENSATION AND BENEFITS | 8 | ||||||
| 3.5 | LIFE INSURANCE | 8 | ||||||
| 3.6 | OFFICE SPACE; STAFFING; SERVICES | 8 | ||||||
| 3.7 | BUSINESS EXPENSES | 8 | ||||||
| 3.8 | OTHER BENEFITS | 9 | ||||||
| 3.9 | ATTORNEYS' FEES | 9 | ||||||
| 3.10 | NO DIRECTOR FEES | 10 | ||||||
| ARTICLE 4 CHANGE IN CONTROL AND TERMINATION OF EMPLOYMENT | 10 | |||||||
| 4.1 | TERMINATION BY ▇▇▇▇▇▇ | 10 | ||||||
| 4.2 | TERMINATION BY GROUP | 10 | ||||||
| 4.3 | PAYMENT OF ACCRUED BASE SALARY, VACATION PAY, ETC. | 10 | ||||||
| 4.4 | OTHER TERMINATION BENEFITS AND PRIVILEGES | 11 | ||||||
| 4.5 | RESIGNATION AS A DIRECTOR | 14 | ||||||
| 4.6 | CERTAIN TAX MATTERS | 14 | ||||||
| 4.7 | RELEASE PRIOR TO PAYMENT OF BENEFITS | 16 | ||||||
| ARTICLE 5 CONFIDENTIAL INFORMATION, NON-INTERFERENCE | 17 | |||||||
| 5.1 | CONFIDENTIAL INFORMATION | 17 | ||||||
| 5.2 | NON-INTERFERENCE | 18 | ||||||
| 5.3 | INJUNCTIVE RELIEF | 18 | ||||||
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TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||||||
| ARTICLE 6 DISPUTE RESOLUTION | 18 | |||||||
| 6.1 | GENERAL | 18 | ||||||
| 6.2 | PRELIMINARY REQUIREMENTS | 19 | ||||||
| 6.3 | CHOICE OF ARBITRATORS | 19 | ||||||
| 6.4 | ARBITRATION; RULES | 19 | ||||||
| 6.5 | ENFORCEMENT | 20 | ||||||
| 6.6 | CERTAIN COURT ACTIONS PERMITTED | 20 | ||||||
| 6.7 | WAIVER OF CERTAIN RIGHTS AND PROTECTIONS | 20 | ||||||
| ARTICLE 7 MISCELLANEOUS | 21 | |||||||
| 7.1 | NO MITIGATION OR SET OFF | 21 | ||||||
| 7.2 | ASSIGNABILITY | 21 | ||||||
| 7.3 | NOTICES | 21 | ||||||
| 7.4 | SEVERABILITY | 21 | ||||||
| 7.5 | SUCCESSORS; BINDING AGREEMENT | 21 | ||||||
| 7.6 | TAX WITHHOLDINGS | 22 | ||||||
| 7.7 | AMENDMENTS AND WAIVERS | 22 | ||||||
| 7.8 | NO DUPLICATE SEVERANCE; ENTIRE AGREEMENT | 22 | ||||||
| 7.9 | GOVERNING LAW | 23 | ||||||
| 7.10 | COUNTERPARTS | 23 | ||||||
| 7.11 | INDEMNIFICATION; LIABILITY INSURANCE | 23 | ||||||
| 7.12 | REMEDIES CUMULATIVE | 23 | ||||||
| 7.13 | JOINT AND SEVERAL LIABILITY | 23 | ||||||
-ii-