Exhibit 10.21
FIRST AMENDMENT TO 2002 RETENTION PROGRAM
First Amendment (this "AMENDMENT") to the Delta Air Lines, Inc. 2002
Retention Program dated as of July 24, 2003 by and between Delta Air Lines,
Inc., a Delaware corporation ("DELTA"), and __________ ("EXECUTIVE").
WHEREAS, on January 23, 2002, the Personnel & Compensation Committee
(the "COMMITTEE") of Delta's Board of Directors adopted the 2002 Retention
Program (the "RETENTION PROGRAM");
WHEREAS, on January 23, 2002, the Committee granted Executive a
retention award opportunity (a "RETENTION AWARD") subject to the terms of the
Retention Program; and
WHEREAS, Delta and Executive have determined that it is in the best
interest of Delta and Executive to amend the terms of the Retention Program as
it relates to Executive as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Retention Program
has the meaning assigned to such term in the Retention Program. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar reference
contained in the Retention Program shall, as it relates to Executive after this
Amendment becomes effective, refer to the Retention Program as amended hereby.
SECTION 2. Amendment to Section 4 of the Retention Program. Section 4
of the Retention Program is hereby amended in its entirety to read as follows:
4. General Rules Regarding Vesting and Payment of Retention
Awards
Subject to the terms of the Program:
a. Vesting and Payment of First Installment. 33.3% of a
participant's Retention Award shall vest on April 2, 2004 and be paid
in cash within 30 days thereafter if the participant is continuously
employed by Delta from January 1, 2002 through and including April 2,
2004.
b. Vesting and Payment of Second Installment. 33.3% of a
participant's Retention Award shall vest on April 2, 2005 and be paid
in cash within 30 days thereafter if the participant is continuously
employed by Delta from January 1, 2002 through and including April 2,
2005.
c. Vesting and Payment of Third Installment. The balance
of a participant's Retention Award shall vest on April 2, 2006 and be
paid in cash within 30 days thereafter if the participant is
continuously employed by Delta from January 1, 2002 through and
including April 2, 2006.
SECTION 3. Amendment to Section 5 of the Retention Program. Section 5
of the Retention Program is hereby amended in its entirety to read as follows:
5. Special Rules Regarding Vesting and Payment of Retention
Awards
The General Rules Regarding the Vesting and Payment of
Retention Awards in Section 4 of the Program are subject to the
following terms:
a. Termination of Employment On or Before April 2, 2004
Because of Disability or Death. If a participant's employment with
Delta terminates on or before April 2, 2004 due to Disability (as
defined in the Delta 2000 Performance Compensation Plan) or death, a
pro rata portion of the participant's Retention Award shall vest on the
date of such termination of employment and be paid in cash within 30
days thereafter. The pro rata portion of the participant's Retention
Award which shall vest under this Section 5(a) will be determined by
multiplying the Retention Award by a fraction, (i) the numerator of
which is the number of full and partial months (rounded to two decimal
places) the participant was continuously employed by Delta during the
period beginning on January 1, 2002 and ending on the date of such
termination of employment; and (ii) the denominator of which is 27,
provided, however, that in no event shall such fraction be greater than
1.
b. Termination of Employment During the Period Beginning
April 3, 2004 and Ending April 2, 2006 Because of Disability or Death.
If a participant's employment with Delta terminates during the period
beginning April 3, 2004 and ending April 2, 2006 due to Disability or
death, any unvested portion of the participant's Retention Award shall
vest on the date of such termination of employment and be paid in cash
within 30 days thereafter.
c. Termination of Employment for Reasons Other Than
Disability or Death. Except to the extent otherwise determined by the
Committee, if a participant's employment with Delta terminates on or
before April 2, 2006 for any reason other than Disability or death, any
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unvested portion of the participant's Retention Award shall immediately
lapse and be forfeited at the time of such termination of employment.
Any vested portion of the participant's Retention Award which has not
been paid as of such termination of employment shall be paid in
accordance with the terms of the Program.
d. Change in Control On or Before April 2, 2004. If, on
or before April 2, 2004, there is a Change in Control (as defined in
the Delta 2000 Performance Compensation Plan) while a participant is
employed by Delta, a pro rata portion of the participant's Retention
Award shall vest on the date of the Change in Control and be paid in
cash within 30 days thereafter. The pro rata portion of the
participant's Retention Award which shall vest under this Section 5(d)
will be determined by multiplying the Retention Award by a fraction,
(i) the numerator of which is the number of full and partial months
(rounded to two decimal places) the participant was continuously
employed by Delta during the period beginning on January 1, 2002 and
ending on the date of the Change in Control; and (ii) the denominator
of which is 27, provided, however, that in no event shall such fraction
be greater than 1.
e. Change in Control During Period Beginning April 3,
2004 and Ending April 2, 2006. If, during the period beginning April 3,
2004 and ending April 2, 2006, there is a Change in Control while a
participant is employed by Delta, any unvested portion of the
participant's Retention Award shall vest on the date of the Change in
Control and be paid in cash within 30 days thereafter.
f. Discharge of Liabilities. The payment to a
participant of amounts due under Section 5(d) or Section 5(e) of the
Program shall discharge all liabilities of Delta to the participant (i)
under the Program; and (ii) only with respect to the Program, under any
executive retention protection agreement or employment agreement
between Delta and the participant.
SECTION 4. Amendment to Section 10 of the Retention Program. Section 10
of the Retention Program is hereby amended in its entirety to read as follows:
10. Waiver of Retention Award in Connection With the Emergency
Wartime Supplemental Appropriations Act of 2003
Notwithstanding anything in the Program to the contrary, in
the event the Committee shall determine in its reasonable discretion
that making any payment to which a participant may be otherwise
entitled under the Program would cause Delta to violate its agreement
to limit "Total Cash Compensation" to "Executive Officers" (each as
defined under the agreement between Delta and the United States of
America dated May 6, 2003 (the "Government Contract") entered into
pursuant to
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the Emergency Wartime Supplemental Appropriations Act of 2003) under
Paragraph 4.1 of the Government Contract, such participant shall not be
entitled to such payment and, instead, the Committee shall reduce such
payment (in whole or in part) by an amount, determined by the Committee
in its reasonable discretion, such that Delta shall not be in such
violation. Further, in the event the Committee determines in its
reasonable discretion that any previously made payment to a participant
under the Program would cause Delta to violate Paragraph 4.1 of the
Government Contract (such payment, an "Excess Payment"), upon
notification from the Committee, such participant shall promptly repay
such Excess Payment to Delta. Delta shall have the right to set-off any
Excess Amount against any obligation to make a payment or honor a
commitment to a participant.
SECTION 5. Waiver of Delta's Negative Discretion in Connection with
Long-Term Performance Award. In consideration for the amendments to the
Retention Program as set forth herein, provided that Executive's employment with
Delta continues through December 31, 2003, Delta hereby waives the Committee's
right pursuant to Section 6 of Executive's Performance-Based Restricted Stock
Agreement dated January 25, 2001 to reduce the amount of Executive's performance
award payable in calendar year 2004 thereunder.
SECTION 6. Effectiveness. This Amendment shall be effective as of the
date first above written.
SECTION 7. Effect of Amendment. Except as amended or waived hereby, all
of the provisions of the Retention Program shall remain in full force and effect
without modification or waiver.
SECTION 8. Entire Agreement. This Amendment constitutes the entire
agreement between Delta and Executive with respect to the subject matter hereof,
and supersedes any other prior agreement, written or oral, between the parties
with respect thereto. This Amendment may only be amended by written instrument
signed by both Delta and Executive.
SECTION 9. Governing Law. This Amendment and all determinations made
and actions taken hereunder shall be governed by the internal substantive laws,
and not the choice of law rules, of the State of Georgia, and construed
accordingly, to the extent not superseded by applicable federal law.
SECTION 10. Successors. This Amendment shall be binding upon
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
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IN WITNESS WHEREOF, Delta and Executive have executed this Amendment.
EXECUTIVE Delta Air Lines, Inc.
By:
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------------------- Name: [▇▇▇▇▇ ▇▇▇▇▇]
[Executive] Title: [Chairman, Personnel &
Compensation Committee]